Cini v McCain Foods (Aust) Pty Ltd and VWA
[2012] VCC 775
•18 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT BALLARAT
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00104
| ANTHONY NOEL CINI | |
| v | |
| McCAIN FOODS (AUST) PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 14 June 2012 | |
DATE OF SENTENCE: | 18 June 2012 | |
CASE MAY BE CITED AS: | Cini v McCain Foods (Aust) Pty Ltd & VWA | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 775 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious Injury
LEGISLATION CITED – Accident Compensation Act 1985, s.134AB(38)
CASES CITED – Stijepic v One Force Group (Australia) Ltd & Anor [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd No. 2 (2008) VSCA 260
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Jordon SC and Mr T J Seccull | Slater & Gordon |
| For the Defendants | Mr P B Jens and Mr I S Gourlay | Herbert Geer |
HIS HONOUR:
1 On 8 February 2005, the plaintiff suffered severe laceration to the index and little fingers of his non dominant left hand, being in the course of his employment with the first defendant.
2 In this application, in which the plaintiff seeks leave to commence a proceeding claiming general damages in respect of the incident in which he was injured, the impairment relied on by him is that of the left hand.
3 In the application, the plaintiff relies upon two affidavits sworn by him on 24 August 2011 and 4 June 2012 respectively. The plaintiff also gave viva voce evidence in the course of which he was cross-examined. In addition, the plaintiff relies upon the medical reports tendered by him which form part of Exhibit A.
4 That there is no dispute as to the nature of the plaintiff's injury, the stability of his condition, or the consequence of that injury upon the function of his left hand can be seen by the fact the plaintiff has tendered, in his case, all the medical reports commissioned by the defendants, and that counsel for both parties, in their closing addresses, did not refer to the content of the medical reports to any significant extent.
5 In assessing the consequences to the plaintiff of his injury, and the associated impairment which he suffers to his left hand, it is appropriate that I express at this point in my reasons my satisfaction:
(i) Firstly, that the plaintiff was both a truthful and reliable historian (in this respect the defendants take no issue); and
(ii) Secondly, that the plaintiff presented as a stoic individual.
6 I make this latter finding taking into account the plaintiff's return to work with the first defendant as a cleaner in which he endures both pain and discomfort given the nature of his duties and his requirement to work in cold conditions, and occasional inappropriate and insensitive remarks by reason of his requirement to wear a glove on his left hand. I am also influenced in this regard, but to a lesser degree, by the change which the plaintiff has accommodated in his life which has involved him in opening a shop in Ballarat about which I will say more in the course of these reasons.
7 Given the plaintiff's stoicism, I have no hesitation in accepting at face value his description of the symptoms from which he suffers by reason of his injury, or the consequences of those symptoms.
8 In his first affidavit, the plaintiff described the consequences of his injury, and related impairment as follows:
“Diminished sensation in my index finger and little finger. I have pain and aching in the joints of my index finger. In cold weather I experience considerable pain in the fingers, particularly in the index finger. I have a reduced capacity to move and manipulate my fingers, thus there are many fine motor movements which I cannot perform, and which are difficult. Eating with a knife and fork is difficult, and if I have to go out and eat in public I am embarrassed. Handling small things like screws, or holding nails, or doing up buttons are difficult.
I no longer have treatment for the injury.
I no longer take medication for the injury.
I wear a glove to protect the hand from being knocked. I wear this whilst I am at work, but also sometimes at home. The glove not only protects the fingers of the left hand, but it also seems to help to some extent the problems with altered sensation in the index and little fingers. Before the injury I was a very fit, hardworking and active person. I was a talented and active handyman.”
9 In this second affidavit, the plaintiff described in greater detail the consequences of his injury related impairment. In this respect, the statements made by the plaintiff in paragraphs 3 through to 9, and 11 through to 13 of his affidavit dated 3 June 2012 set out this material. I accept the evidence given by the plaintiff as set out therein and little point is served in repeating that evidence in the course of these reasons.
10 Given the medical evidence in this matter, I am satisfied that the plaintiff's condition is stabilised at its current level. I am further satisfied that the plaintiff's lack of treatment, or his lack of use of medication does not attest to the insignificance of his symptoms, but rather to the fact that no further medical treatment is available for his injury, and that he is a stoic individual.
11 In assessing the issue which arises in this case, namely whether the plaintiff's pain and suffering consequences when judged by comparison with other cases in the range of possible impairments, or losses of body functions may be fairly described as being more than significant, or marked and as being at least very considerable, I am required to assess the consequences in terms of pain and suffering which the plaintiff's injury has occasioned to him, and determine where the facts of this case sit in the broad spectrum of cases.
12 The task which I am required to undertake was helpfully summarised by counsel for the defendants at transcript 54 and 55. I am cognisant of the direction provided to me by the decisions of the Court of Appeal there referred to, and adopt those directions.
13 My task has been described as involving a value judgment in which matters of fact, and degree and of impression are operative: see Stijepic v One Force Group (Australia) Ltd & Anor [2009] VSCA 181; and one in which I am required to:
“… take into account not only what symptoms there are in what a worker is precluded from doing, but also what limits there are to symptoms, and to inhibitions upon activities. It is true that impairment is concerned with what has been lost, but the significance of what has been lost which bears upon the seriousness of the consequences may be informed to some extent by what is retained.”
See Dwyer v Calco Timbers Pty Ltd No. 2 (2008) VSCA 260.
14 As I have said, I am satisfied that the plaintiff presents as an honest, reliable and stoic person. It is not contended that he has in any way exaggerated his level of symptoms, or the adverse effect which his injury has had upon his life. The manner in which the plaintiff gave his evidence, and the fact that he broke down when describing the impact which his injury has had upon his ability to undertake handyman type activities emphasises, in my opinion, the severity of the impact of the plaintiff's impairment upon him.
15 I am satisfied that the plaintiff's injury and associated impairment gives rise to the following consequences for him:
16 Firstly, he suffers from pain in his fingers, particularly in his index finger in cold weather, and in the course of his present work which requires him to spend substantial periods of time within the first defendant's cool room. Whilst the level of this pain is not such that it requires the plaintiff to employ medication as a form of pain control, I am satisfied that it nonetheless presents a significant problem for him which he manages by wearing a glove for large periods of his waking hours. (See the plaintiff’s evidence at the plaintiff's court book 14 through to 16). I am also satisfied that the wearing of the glove at work causes the plaintiff embarrassment, and occasionally exposes him to teasing (see the plaintiff’s evidence at transcript 41) which, whilst not being a regular feature of his life, nonetheless gives rise to real issues for him.
17 Secondly, I am satisfied that the plaintiff has lost the ability to perform fine manipulative movements with his left hand, and that this together with the plaintiff's sensitivity in protecting his fingers adversely impacts upon his life on a daily basis whenever he is called upon to perform an activity which requires him to employ his left hand. See for example the plaintiff's evidence at transcript 137 to 138 as to the sensitivity and difficulty which he has in holding a screw; his evidence at transcript 40 in which he described his difficulty in manipulating forks, and implements of that type, and the activities about which the plaintiff gave evidence at transcript 23 to 25, transcript 37 to 38 and paragraph 28 of his second affidavit at court book 16.
18 Thirdly, I am satisfied that the plaintiff was, before his injury, a keen and skilled handyman and wood worker. There is no issue that the plaintiff was very competent in wood turning by the use of a lathe, and was able to produce, through that process, pens, trophies, pedestals and bowls which he kept or sold, or donated to various organisations. I accept the submission by counsel for the plaintiff that it is appropriate to describe this interest as being a life interest which was of particular importance to the plaintiff, demonstrated by the time he would devote to this activity. I am further satisfied that the importance of this activity for the plaintiff assumed greater significance given the presence of his hearing impairment, which made dealing with members of the public difficult for him. (See the plaintiff's evidence at plaintiff's court book 15, and also at transcript 16 and 17 and transcript 46 and 50.)
19 I am satisfied that the importance of the plaintiff's woodwork interest lay not only in wood turning, but also in the fact that he had purchased an investment residential property at Soldier Hill which he intended to continue to renovate, employing a mix of contracted skilled labour such as plumbers and electricians, but also by carrying out a range of other activities in which he could employ his carpentry skills in doing such things as hanging doors and cupboards, building decking and constructing fencing. (See the plaintiff's evidence at transcript 43.)
20 I accept that the purchase by the plaintiff of this property was part of his retirement plan, which involved an intention to improve the property by his input in terms of his own labour, and then either to sell the property, or to use the property as security for the purchase of another property. (See the plaintiff's evidence at transcript 45.)
21 I am satisfied that the plaintiff derived considerable enjoyment from the activities involved in improving the property, and that they brought with them the prospect of capital gain and security associated with such gain, and that the opportunity which the property thus presented to the plaintiff was very important to the plaintiff, particularly in his retirement.
22 I am satisfied that the impaired function of the plaintiff's left hand was the primary reason which motivated the plaintiff to sell his investment property, and to purchase a commercial property (see the plaintiff's evidence at transcript 27 and 28), and that the change in the plaintiff's lifestyle in which he has moved into the part-time occupation of a hobby shop proprietor has been associated with little financial benefit, and considerable angst, in that the plaintiff is now forced to deal with members of the public, and in doing so he encounters problems which he would much prefer to avoid given the very poor level of his hearing. (See the plaintiff's evidence at transcript 14 to 17, and at transcript 46.)
23 I am satisfied that the end result of this process has been that the plaintiff's retirement plans have been altered in such a manner as to occasion upon him a very deleterious impact.
24 Fourthly, I am further satisfied that for the plaintiff, the loss of his hobby in woodwork and his loss of ability to carry out handyman activities around his house has had a very significant deleterious impact upon his life. The importance of that impact, in my opinion, can be gleaned, not only from the plaintiff's evidence, but also as I have previously commented by the plaintiff's reaction when giving his evidence at transcript 42 in the course of which he broke down.
25 Fifthly, I am satisfied that the plaintiff's injury and impairment has caused him to largely abandon his occasional pastimes of fishing and golf, and that the plaintiff derived pleasure from those activities, notwithstanding the fact that they did not form nearly as important an aspect of his life as that which was associated with his hobby of working with wood.
26 Taking into account all of these findings when undertaking the weighing exercise which I am required to employ, and focusing upon the effects of his injuries upon the plaintiff with respect to work, pain and lifestyle, and when assessing those effects by comparison with other cases in the range of possible impairments, or losses of body function, I am left with the overriding impression of a person whose symptoms are always with him, and have a constant and deleterious impact upon the pattern of his life and his enjoyment of his life.
27 In the circumstances, I am satisfied that the impact of the plaintiff's symptoms upon his life is such that it is appropriate to describe the impairment and function of his left non dominant hand as being more than significant, or marked and as being at least very considerable.
28 In these circumstances, I am satisfied that the plaintiff's impairment meets the high threshold test which is imposed by s.134AB(38) of the Act and, accordingly, that the plaintiff has made out his case as his entitlement to the leave sought in this proceeding.
29 I will hear the parties as to the precise form of the order which I should make in the proceeding, and also upon the issue of costs.
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