Coutts v Stuhler Investments Pty Ltd
[2013] VCC 179
•7 March 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-12-01013
| DENIS ALBERT COUTTS | Plaintiff |
| v | |
| STUHLER INVESTMENTS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2013 | |
DATE OF JUDGMENT: | 7 March 2013 | |
CASE MAY BE CITED AS: | Coutts v Stuhler Investments Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 179 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to right hand – pain and suffering only – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick | Ryan Carlisle Thomas |
| For the Defendants | Ms M Britbart | Hall & Wilcox |
HIS HONOUR:
1 The plaintiff suffered an injury to his right dominant hand in the course of his employment with the first defendant on 24 February 2010. Two fingers of that hand were crushed in a refrigeration fan in the back of his truck. The injury required surgery and hand therapy, and he made a reasonable recovery. He has remained at work, but suffered a range of consequences, in particular ongoing pain and a loss of his sporting and leisure activities, which he claims meet the “very considerable” level as required by the legislation.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment on 24 February 2010.
3 The body function said to be lost or impaired is the right hand. The application is brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act. Leave is sought in respect of pain and suffering only.
4 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, affidavits of the plaintiff and supporting witnesses and various medical reports were tendered into evidence. I have read all the tendered material. I shall not refer to all this material in the course of the judgment, but rather those parts of the reports, opinions, affidavits and evidence which appear to me to be of most relevance in determining the issues in dispute. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various sections.
Relevant Background
5 The plaintiff is now sixty-two years of age. He worked for thirty years as a courier driver with Wards Express until 2001, when he commenced work with the first defendant, again as a driver.
6 He was in good health and in particular, had suffered no injury to his right hand. Before injury, he enjoyed his work and socialised with friends, and in particular, with his two daughters and three grandchildren.
7 He had lived by himself for more than twenty years, carried out all his own domestic duties, including maintaining a lawn and garden in his rented accommodation, and did all his own cooking, cleaning and washing.
8 He enjoyed two particular recreational activities. He played golf each second Saturday with a group of three golfers, friends and relatives, and had been doing so for a period of about five years. He enjoyed not only the competition and the exercise, but the social outlet it provided.
9 Further, members of his family were keen ten-pin bowlers, and he went bowling with his daughter and her children on a regular basis. Again, he enjoyed the social contact.
The injury and its consequences
10 On 24 February 2010, he attempted to repair a leaking refrigeration system in the truck he was driving. His right hand became caught in a fan and he suffered an injury to the ring and little fingers. The injury to his little finger was described as a significant soft-tissue injury which required surgical repair to the extensor tendon, and the insertion of K-wire to stabilise one of the joints. The wire remained in place for six weeks, and was then removed. The ring finger required a full-thickness skin graft, with the donor site at the front of the left wrist. He was in hospital for two days, and the surgery was deemed successful.
11 He was off work for about three months and then returned to work on modified duties for several weeks, before resuming his full pre-accident truck driving duties. He has remained at work on full duties to the present time.
12 He was referred for hand therapy to Ms Diane Hedin, who treated him with exercises to increase movement, over a period of several months. The therapy resulted in an improvement in the dexterity of the hand.
13 He saw his general practitioner on occasions, and took Panadol. He concedes that at the present time he receives no treatment for the hand and has not had any such treatment for a considerable period. In evidence, he said he did not like taking medication, and, after the surgery and hand therapy, there was nothing further the medical practitioners could do to improve the symptoms he suffered.
14 As stated, he has resumed his pre-injury accident driving without significant difficulty. He says there are some tasks which cause problems, in particular, lifting heavy 25-kilogram bags of flour. He obtains assistance at work from other employees. Further, if he is working in the work cool room, his little finger particularly is painful. Gloves do not assist.
15 He has attempted to resume playing golf on several occasions, but has not been able to properly grip the club, and has given the game away. Likewise, ten-pin bowling, as he is unable to place his injured fingers in the holes of the bowling ball.
Medical Opinions
16 I have been provided with opinions from a number of treating and consultant medical practitioners. There is no need to summarise the opinions as there is no disagreement as to the nature of the injury suffered, the treatment undertaken and the restrictions suffered as a result of the injury.
Consequences
17 The consequences suffered by the plaintiff as a result of the injury may be summarised as follows:
(i) He complains of a constant ache in the little finger, exacerbated by cold temperatures, with a marked increase when the finger was knocked or struck;
(ii) He is unable to resume his enjoyment of golf or ten-pin bowling, which he said is a significant loss given not only its recreational, but also social enjoyment;
(iii) He has a significant loss of grip strength in the right hand because of both injured fingers. On occasions, he drops things and is restricted in activities which require fine motor skills or strength of the injured fingers;
(iv) He describes the two fingers as effectively useless, misshapen and, because of the fact that the little finger sticks out at an angle, it becomes caught and knocked regularly[1];
[1]I viewed the fingers and agree with his description.
(v) There is some restriction in his activities of daily living. In particular, he has to start his lawnmower with his left hand and has difficulties with some domestic chores, including peeling potatoes. He has largely been able to overcome and cope with these problems. There is some restriction in the gardening activities he previously undertook, but again, that is not great;
(vi) He has been able to resume his full work activities, but requires assistance with heavier lifting and sometimes, in the course of his work duties, the little finger is knocked or gets in the way.
18 Ms Britbart, for the defendants, in the course of cross-examination and submissions, emphasised the following:
(a) After an appropriate period of recovery from the surgery, the plaintiff resumed his full-time duties, and, of recent times, has increased his hours by working Saturday mornings;
(b) He is able to do almost all of his domestic activities, including cooking, cleaning and washing, mowing his lawn with only minor restriction;
(c) He has resumed all of his social activities, with the exception of golf and ten-pin bowling, and has compensated in other ways for the loss of the social outlet those activities provided by remaining in close contact with, in particular, his daughters and grandchildren;
(d) He received no treatment nor medication nor any other form of therapy for the hand, and that was a measure of the fact that the symptoms were only modest;
(e) While it was not challenged that the plaintiff suffered some pain in colder temperatures, and when the small finger was knocked, Ms Britbart submitted that nowhere in the plaintiff’s affidavit was there a complaint of constant ache or pain, and likewise, no complaint to the doctors. In particular, she referred to the entry in the clinical notes of Dr Micut, the general practitioner, of 4 September 2012, which said:
“… able to do usual activities at home, but a bit awkward starting lawnmower using two fingers. … Skin healed well. Min[imum] tenderness 5th PIP”.[2]
[2]Defendants’ Court Book (“DCB”) 31
19 There is a dispute upon the evidence as to the nature and extent of the plaintiff’s pain in his little finger. In evidence, he said it was a constant ache, made worse when knocked or exposed to cold temperatures. However, there was no reference to constant pain in his affidavit, and little in the histories to the various doctors[3].
[3]Mr Ireland – DCB 19, Mr Stapleton – DCB 14
20 I found the plaintiff an honest and credible witness, not given to exaggerating his symptoms. I assessed him as a stoic person, prepared to accept the restrictions and inconvenience caused by his injury without great complaint. He said in evidence that he did tell doctors of the constant ache in his little finger, but did not make a significant issue of it to them, nor in his affidavit. I accept his explanation in that regard.
21 I accept that he does suffer some form of regular ache in the small finger, but the significance really is that he suffers increased pain when the finger is knocked or struck, which he says happens on a daily basis. It is easy to understand that would occur, given the nature of his employment. I accept that when that occurs, he suffers sharp pain.
22 He receives no treatment nor takes medication, but, in my view, that is more a measure of the fact that there is nothing the doctors can do to relieve the situation, or improve the pain, rather than a reflection of the paucity of symptoms.
23 In considering whether the consequences to the plaintiff meet the “very considerable” level, it is appropriate to bear in mind that it is not only the recreations and activities which have been curtailed or lost, but also those which the plaintiff has been able to maintain. He is an active man, in full-time work, able to socialise with his family and attend to almost all of his domestic needs.
24 However, I accept that the loss of his golf and ten-pin bowling has been particularly significant. Combining this with the pain that I accept he suffers, and the various other restrictions to which I have referred, I asses the consequences to him as reaching the “very considerable” level as the legislation requires.
25 As has been said regularly in the authorities, the consequences are to this particular plaintiff, at his stage of life. The impact of the loss of the activities to which I have referred, and the pain he suffers, have had a significant impact upon him sufficient to meet the statutory test.
26 The plaintiff’s application for leave is granted.
27 I shall hear further as to costs.
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