Cooke v Visy Board Pty Ltd
[2013] VCC 676
•13 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03332
| MARK COOKE | Plaintiff |
| v | |
| VISY BOARD PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2013 | |
DATE OF JUDGMENT: | 13 June 2013 | |
CASE MAY BE CITED AS: | Cooke v Visy Board Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 676 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Amputation of the last joint of the little finger – dominant hand – whether the injury constituted disfigurement – whether the pain and suffering consequences are “serious”.
Legislation Cited: Accident Compensation Act 1985, s134AB(16(b) and (38)(c)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46.
Judgment: The plaintiff has leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for injuries for pain and suffering and loss of earning capacity arising out of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr N Dunstan | Thompsons Lawyers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 12 July 2012 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of or in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such a proceeding for disfigurement for pain and suffering.
3 Mr G Chancellor of Counsel appeared for the plaintiff and Mr N Dunstan of Counsel appeared for the defendant.
4 The injury suffered by the plaintiff for which leave is sought is an injury to the little finger on the plaintiff’s dominant right hand.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 10-14(b) and 21-38: Exhibit A;
· The defendant tendered film taken of the plaintiff on 12 January 2013 and 10 May 2013: Exhibit 1.
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) and (b) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function” or a “permanent serious disfigurement”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has a suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.
(b) The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c) Sub-section (38)(c) provides that the impairment or the disfigurement must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being as least “very considerable”.
(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] I must identify the injury and the impairment and the disfigurement said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1](2005) 14 VR 622
Background
8 The plaintiff was born in February 1966. He is now forty-seven years of age. He is a married man. He has three sons who are now about eighteen, nine and six years of age.
9 The plaintiff commenced employment with the defendant in late 2001. He was employed as a machine operator/forklift driver/fill-in labourer. He was undertaking that work when he suffered injury.
The injury
10 On 11 June 2010, the plaintiff was working on a conveyor line. The conveyor was moving flat cardboard boxes. The conveyor stopped. The plaintiff removed boxes from the conveyor. On one occasion, when he put his right hand under the boxes in order to push them off the conveyor, the operator of the conveyor started it. The plaintiff’s little finger on his right hand became caught between the conveyor and pulley, which resulted in the end joint of his little finger becoming amputated.
The Plaintiff's medical treatment
11 The plaintiff was taken to the Northern Hospital. The amputated part of his little finger was found and conveyed to the hospital with the plaintiff.
12 The amputated portion of the plaintiff’s little finger could not be re-attached. Under general anaesthetic, and also under local anaesthetic, the bone of the terminal phalanx was shortened and the distal interphalangeal joint was preserved. A volar skin flap was formed over the amputated tip and a split skin graft was harvested to close the skin defect.
13 The plaintiff was reviewed at the Plastic Outpatient Department of the hospital on 17 and 24 June 2010, 1 July 2010, 3 September 2010 and 24 June 2011. Initially, the wounds had healed and the skin graft had taken. On 3 September 2010, it was noted that he had sensitivity at the tip of the little finger and reduced flexion. He was advised to continue with hand therapy.
14 When last seen on 24 June 2011, it was noted that he still had hypersensitivity over the tip of his little finger. The medical practitioner who saw him considered that he might have developed a neuroma.
The medico-legal assessments
15 Mr Chancellor and Mr Dunstan submitted that when a comparison is made between the opinion of Mr Buntine, plastic and hand surgeon, and the opinion of Mr Ireland, orthopaedic surgeon, that there is very little difference in their opinions. Mr Buntine examined the plaintiff on 8 November 2011, and Mr Ireland examined him on 6 February 2013.
16 I have read both the reports of Mr Buntine, dated 9 November 2011, and Mr Ireland, dated 6 February 2013, and it appears to me that there really is little difference in the product of their examinations of the plaintiff’s right hand. It is for that reason that I propose to follow the same route taken by Mr Chancellor and Mr Dunstan by concentrating on the examination, findings and opinion of Mr Ireland.
17 Mr Ireland recorded the plaintiff’s current complaints as follows:
“Mr Cooke complains of tenderness over the amputation stump at the right dominant little finger. This tenderness occurs on a daily basis and lasts for a few seconds to a minute. The tenderness causes pain to radiate along the radial border of the little finger into the dorsal aspect of the fourth web space. He also complains of numbness in the little finger and states that on occasion he cuts the finger when gardening and is unaware of the injury until he observes the bleeding. He complains of pain over the dorsum of the right hand over the fourth web space with cold temperatures. This lasts for about two hours and is alleviated by wearing a woollen glove.
On direct questioning with regard to grip strength, he answers in the affirmative. When asked regarding stiffness, he says ‘no’. When asked regarding loss of function he is not able to specify anything major.”
18 Mr Ireland asked the plaintiff to describe the consequences of the injury to his little finger. He told Mr Ireland that he is no longer able to play golf, which he played once a month. He now plays about every six months or so. He has difficulty playing football and cricket with his three sons. He said that he sort of hides his little finger from view. He does not have any particular treatment for it. He is able to attend to all normal household chores and maintenance, and activities of daily living. He drives a car without difficulty.
19 On examination, Mr Ireland noted the following:
“On examination of the right hand there was an obvious amputation of a little finger through the distal interphalangeal joint. There was mild atrophy of the amputation stump. There was a healed surgical scar extending for 2 cm along the radial border of the digit. The pulp was stable. Percussion over the radial side of the pulp caused a retrograde Tinel’s sign in the dorsal aspect of the fourth web space.
… Active range of motion at the remaining joints of [the] little finger was recorded by goniometer as follows: metacarpophalangeal joint 20° extension to 50° flexion and proximal interphalangeal joint 0° extension to 85° flexion.”
20 Mr Ireland noted that there was no wasting of the intrinsic muscles or other abnormalities. He also noted that there was a full range of active movement of the joints of the uninjured digits.
21 Mr Ireland described the injury as an amputation of the right little finger through the distal joint with the formation of a neuroma on the radial digital nerve. He considered the plaintiff’s prognosis to be fair, and it was unlikely there would be any further deterioration in his symptoms. He thought there might be a spontaneous resolution of the neuroma.
22 In conclusion, Mr Ireland made the following observations:
“ Mr Cooke is currently working at his pre injury job description on a full-time basis. In addition to this he is undergoing simultaneous retraining as a printer, engaged in formal apprenticeship. His ability to use his right hand has been compromised by the loss of the terminal phalanx and resultant neuroma formation. He tends to avoid direct contact with his right little finger when engaged in gripping which limits his grip strength and fine motor movements with his right hand. He is not precluded from his current work or from work required of a printer but his speed and efficiency in undertaking many of the tasks in these jobs will be compromised.”
Consequences
23 I approached the witness box with Counsel in order to observe the injury to the plaintiff’s little finger at close range. I asked the plaintiff to show me his right hand with the palm facing down, with the palm facing up, holding his hand with the palm facing towards me, and then with the palm facing away from me.
24 What I observed was the loss of the end joint of the little finger at the joint. What remained of the end of the finger was rounded and disfigured by scarring. The little finger seemed to be in a permanently flexed position. The plaintiff later demonstrated that if he attempts to make a fist he is able to curl his other fingers into a fist, but cannot curl his little finger fully. It stood up and out from his ring finger quite obviously. Even when his hand was relaxed his little finger was not only fixed in a flexed position but it seemed to be elevated up and away from his ring finger.
25 The plaintiff swore an affidavit on 6 March 2012 in which he described the pain and suffering consequences which have resulted from the injury to his little finger. Those consequences are:
· Mild ongoing discomfort.
· Some degree of sensitivity.
· Some degree of numbness, for example, when he has cut his little finger he has been unaware that he has suffered a cut, even when blood has been drawn.
· Tenderness when pressure is applied.
· Severe pain when the finger is knocked. The knocking can occur as a result of any manual activity, for example, changing gear on a forklift, which may result in knocking his little finger against part of the interior of the forklift. Episodes of knocking occur about twenty times a day and are accompanied by severe pain which can last up to a minute.
· Throbbing and aching pain in cold weather. That is alleviated by the plaintiff wearing a glove which creates warmth and reduces the throbbing and aching.
· Interference with gripping caused by an inability to fully curl the little finger around because of the permanent flexion deformity, for example, gripping bottles, glasses and cups. The plaintiff described dropping items like that because of his inability to grip with strength and confidence.
· A fear of pressure applied to the right hand, for example, engaging in a firm handshake, because of the pressure that might be applied to the little finger and the risk of it being knocked.
· Difficulty writing. I infer that this is from having the little finger pressed against a desktop or table while holding a pen between the thumb and index finger.
· An inability to grip and hold a water ski rope. The plaintiff owns a boat and was given to waterskiing as a recreational pursuit with his wife and children.
· An inability to play golf. The plaintiff was not a member of the golf club. He owns a set of golf clubs. He played about once a fortnight over summer, and less frequently over winter with his brother, usually at the Goonawarra Golf Course. He used to be able to play with an interlock grip which would involve wrapping the right little finger around the grip of the club and interlocking it with the left index finger. He now uses a baseball grip. He said that swinging the golf club causes pain in his little finger. He has tried to play golf since suffering the injury.
· The plaintiff played cricket with Sunbury United. He was a wicket-keeper/ batsman. He conceded that, at forty-seven years of age, he would probably not be playing much by now. He said that he would be playing in “F” grade and would fill in for a few games during the season. He said he could not do that now because of a fear of suffering blows to his little finger when wicket-keeping and batting.
· An inability to handle a football adequately. The films demonstrated the plaintiff on a Friday night co-ordinating Aus-kick. He said he cannot mark a football because of the risk of the ball striking his little finger. The films showed him undertaking some manual activities, which I will describe later in these reasons.
· Favouring holding a dog leash when he takes his dog for a walk in his left hand rather than in his right hand.
· Whilst he can undertake his work, there are occasions during the day of work when he knocks his little finger. The plaintiff has not suffered any significant interference with his capacity to work.
· Generally speaking, he is still a relatively young man of forty-seven years with young children. He suffers interference with his capacity to engage in ball games with his children.
26 In Dwyer v Calco Timbers Pty Ltd,[2] Ashley JA observed that the impairment of function is concerned with what has been lost, but the significance of what is lost, which bears upon the seriousness of consequences, may be informed to an extent by what has retained.[3]
[2][2008] VSCA 260
[3]paragraph 27
27 Furthermore, the approach which Mr Dunstan submitted that I should take in the determination of this application is as advocated by Maxwell P in Haden Engineering Pty Ltd v McKinnon,[4] in which he referred to the evaluation of pain and suffering consequences and there being a distinction between the plaintiff's experience of pain and the disabling effect of pain on the plaintiff's physical capabilities which include his capacity to work and enjoyment of life.[5] Additionally, it is for the trial judge to determine, on the evidence, what the plaintiff says about the pain in court and to medical practitioners; what the plaintiff does about the pain in terms of medication, rest, seeking medical treatment; what the medical practitioners say about the extent and intensity of the plaintiff's pain, and what the objective evidence shows about the disabling effect of the pain.[6]
[4](2010) 31 VR 1
[5]Haden at 4. Maxwell P’s suggested approach was approved in Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 and Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
[6]Haden at 9-10
28 In relation to the disabling effect of the pain, Maxwell P said that it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning and interferes with his enjoyment of life. He set out a number of considerations which I do not propose to repeat here.[7]
[7]Haden at 5-6
29 Mr Dunstan referred me, in particular, to Aburrow, in which Maxwell P and Tate JA applied the approach advocated in Haden which involved a determination of the pain and suffering consequences of a crushing injury to the tip of a worker’s right index finger.
30 I propose to follow Haden in my assessment of the pain and suffering consequences which the plaintiff says are “serious”. However, I regard the very helpful observations in the authorities to which I have referred as being guidance for the trial judge, and not prescriptive. I do not regard what has been said by the Court of Appeal to compromise the discretion in the trial judge when determining serious injury, but rather to demonstrate how evidence should be analysed, going to the issue of whether there are pain and suffering consequences which are “serious”.
31 I will now turn to the films. The first film shown to the plaintiff was taken on 10 May 2013. It showed the plaintiff at Aus-kick on a Friday night. It showed him picking up small sized footballs in his right hand; handling some plastic bunting in his right hand, and holding a large bag in both hands while footballs were placed in the bag. These aspects of the film were the only aspects concentrated upon by Mr Dunstan and it appeared to me that they were the only aspects which demonstrated use of the plaintiff's right hand.
32 The second film was taken on 12 January 2013. It showed the plaintiff taking his dog for a walk. He held the lead predominantly in his left hand, but briefly changed hands. It did not appear to me that his dog was pulling on the leash.
33 It was my overall impression that there was nothing in either of the films which impinged upon any of the evidence given by the plaintiff or his credit or reliability. It was not the plaintiff’s evidence that he is unable to use his right hand, but that he has pain and interference in a range of activities.
34 The function of the digits of the hand cannot be underestimated. It is seductive to simply state that it is just an injury to the little finger because that is to ignore the functioning of the little finger in the context of the functioning of the whole hand. It is understandable that, when the plaintiff engages in any manual function, it is more likely than not that he will use his dominant hand in preference to his non-dominant hand. Simple human experience demonstrates that to be the case with most people, if not all. Therefore, it is likely that, whenever the plaintiff engages in any level of manual activity with his dominant right hand, there is a real prospect that contact will be made with his little finger producing severe, but short lived pain.
35 The plaintiff very fairly described the fact that he is able to engage in most activities, but that there are some which will expose him to knocking which will result in the production of severe, but short lived pain. There are some activities which he cannot do, for example, holding onto a water ski rope, holding a golf club with an interlocked grip rather than a baseball grip, and gripping bottles, glasses and cups without the risk of losing control over them.
36 The plaintiff has had very little medical treatment since he was discharged from hospital. However, it is an injury where it is unlikely that any further treatment could be afforded to the plaintiff which would further ameliorate the problems he has with his right hand. He uses some medication which he purchases over-the-counter, leaving me with the impression that he only takes medication when the pain is rather more troubling.
37 Otherwise, there are very few manual activities in which the plaintiff engages that do not expose him to the risk of knocking his little finger. Whether it be operating a forklift at work; engaging in domestic tasks; engaging in general tasks; engaging in sporting and recreational activities with his children; or even engaging in a simple handshake; he suffers the real risk of knocking or suffering pressure on his little finger. In all, this results in about twenty episodes of severe, but short lived pain in his little finger per day.
38 Additionally, the plaintiff experiences mild ongoing discomfort, some degree of sensitivity and some degree of numbness in his little finger. It was my impression that those levels of altered sensation are present all of the time. He suffers the consequences of cold weather, with his little finger throbbing and aching unless and until he wears a glove.
39 The medical evidence supports the conclusion that the plaintiff has a permanent problem with his little finger which cannot be ameliorated by treatment, except perhaps for the surgical treatment to excise the neuroma. Mr Ireland described the plaintiff’s prognosis as fair, and I infer that to mean that the plaintiff will continue, for the foreseeable future, to experience the problems which he recounted to Mr Ireland. There is strong medical support for the conclusion that the evidence of the plaintiff regarding the pain and suffering consequences of the impairment of function of his little finger, and indeed, his right hand, are accurate. I accept his evidence all respects.
40 I return to my reference to the seduction of describing the plaintiff’s injury as just to his little finger. It is in fact an injury to the plaintiff’s dominant right hand, and should be seen as such because of the extent to which it impairs the manner in which he can fully put his right hand to use. I think it is fair to describe what he said about the interference he suffers as a low to moderate level of interference, but it is that level of interference in almost every activity in which the plaintiff engages where he brings his right hand into play.
41 I should add that I considered the plaintiff be something of a stoic. He repeatedly said that he does not allow his injury to get in his way and does as much as he can. I think that is the mark of a true stoic.
42 I do not consider this to be a clear-cut case of serious injury. If it were not for the breadth of activities which suffer interference by the injury, I would have been inclined to deny the plaintiff leave. On balance, I consider that what the plaintiff has lost is of reasonable magnitude, even though he has retained a capacity to engage in many of his pre-injury activities to varying degrees.
43 I am not satisfied that the disfigurement is serious. An application for serious injury based on disfigurement poses the trial judge great difficulty. I do not think that a disfiguring injury is capable of explicit reasoning. So often it is the visual impact and the trial judge’s objective reaction which is telling in the process of reasoning. Whilst I could observe deformity in the plaintiff’s little finger, it did not strike me as being a deformity which amounted to a disfigurement which could fairly be described as “very considerable”.
Conclusion
44 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering arising out of his employment with the defendant.
45 After discussion with Counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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