Cross v Ridley Agriproducts Pty Ltd
[2014] VCC 616
•13 May 2014
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-04012
| ANDREW JOHN CROSS | Plaintiff |
| v | |
| RIDLEY AGRIPRODUCTS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 9 April 2014 | |
DATE OF JUDGMENT: | 13 May 2014 | |
CASE MAY BE CITED AS: | Cross v Ridley Agriproducts Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 616 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the right dominant hand/right index finger – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12
Judgment:Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Pierorazio | Nevin Lenne & Gross |
| For the Defendant | Mr K Galpin with Mr R Stanley | Wisewould Mahony Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant on 23 March 2010 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the right dominant hand/right index finger (“the finger”).
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
12 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is presently aged forty six, having been born in February 1968. He commenced work with the defendant, a stock feed producer, as a process worker in September 2000.
14 On the said date, the plaintiff suffered injury to the finger when it became crushed between the belt and pulley on a machine, amputating the tip thereof (“the incident”).
15 Following the incident, the plaintiff felt sharp pain and saw the end of his finger was missing. He attended first aid and was then taken to Goulburn Valley Hospital for further treatment. He was an inpatient overnight and underwent surgery on the finger on 24 March 2010, involving a graft to rebuild the tip of the finger as he had no skin to cover the wound (“the first operation”).
16 After two weeks off work, the plaintiff returned on light duties. He worked from April to August 2010, progressing to almost full duties.
17 On 16 August 2010, the plaintiff had a “clean up” operation on the finger performed by Mr Hunt (“the second operation”).
18 Prior to the incident, the plaintiff enjoyed playing cricket, having played for about thirty years. He did not believe he could return to playing cricket because of his injury. In any event, he had virtually retired, having last played the previous season. However, he would have played reunion matches and filled in and played cricket occasionally had he not been injured.
19 Prior to the incident, having moved to his present home, the plaintiff took up lawn bowls. His ability to play had been impeded because of the impaired sensation of the finger.
20 As of January 2013, when he swore his first affidavit, the plaintiff experienced very significant pain on cold days and many of the things he previously took for granted had been significantly impaired and restricted.
21 From the moment he woke up, the plaintiff now realised that his hands and fingers were important in terms of what he needed to do and what he now had difficulty doing.
22 The plaintiff found it very difficult to utilise a computer mouse and had to modify the way in which he used it by operating it with his middle finger which was awkward.
23 The plaintiff found it difficult to pick up things, particularly small fiddly things, with his right dominant hand and it was difficult for him to roll his own cigarettes.
24 The use of the plaintiff’s middle finger had now taken over the function of the finger which was next to useless. The finger felt constantly numb and the plaintiff had difficulty doing things at work. He found that he was constantly looking at the finger and it felt damaged.
25 The plaintiff used to immensely enjoy golf and that was the reason he had built his house close to a golf course. He had difficulty playing golf because of his injury and he had to modify his technique swinging the golf club.
26 The plaintiff’s enjoyment of bowls had diminished substantially because he could not perform as well as he should have been able to but for the injury. He had to change the manner in which he released the bowl. He had lost grip on the side of the injured hand and had to use his middle finger a lot more, which was far from ideal in controlling the ball as to where he wanted it to go. He was then playing bowls four to five times a week and after a day of play, and particularly on a Saturday, the finger swelled up significantly.
27 The finger swelled up regularly, which was very frustrating and it was painful virtually all the time. The plaintiff had difficulty using and working with tools. Sometimes, when the finger felt tight, he had to crack it which resulted in an audible cracking noise.
28 The plaintiff was very concerned he was over compensating with his right little finger because the middle knuckle joint felt constantly sore and painful.
29 The plaintiff swore a further affidavit on 17 March 2014, confirming he continues to suffer from pain in the tip of the finger, which can be aggravated depending on the activities he is performing. He also has numbness over the finger stump and has reduced strength in his right hand.
30 Further, when the nail grows over the tip of the finger, it tends to pull off easily and starts growing all over again. If the plaintiff knocks the tip of the finger, the pain can be excruciating and he often swears at work when this occurs.
31 When attempting a gripping task, the plaintiff tends to exclude the finger from the grip and therefore it tends to protrude, thus increasing the chance of it being knocked, as often happens.
32 At work with the defendant, the plaintiff spends sixty per cent of his time doing manual tasks, including lifting bags of pellets which weigh up to twenty kilograms. Before the incident, he was easily able to pick up a bag of feed without giving it a second thought. Now he has to think about what he is doing when he is lifting up the bags, even when he is wearing gloves.
33 The plaintiff is also required to handle a scoop to pick up product, which can weigh in the vicinity of three to four kilograms. He has difficulty grasping the scoop with his right hand and tends to try and rely more on his left, although that has had the effect of causing some pain in his left hand joints after a heavy day at work.
34 The plaintiff is also required to lift buckets with ingredients such as bicarbonate of soda and salt. The buckets can hold up to thirty to thirty five kilograms of product. Usually the buckets have a handle and need to be carried by two people. Where possible, the plaintiff tries to lift his end of the bucket with his left hand. Sometimes a bucket is missing a handle and the plaintiff finds it difficult to pick it up around the rim.
35 Some of the plaintiff’s work involves general machine maintenance. He finds using tools can be difficult. Tasks involving fine movements of the hand, such as the use of an Allen key, are hard for him. Again, he tries and relies on the middle finger and thumb, although he does not have as fine a control of the tool as he would have had with the finger. He forever has to think about what he is doing. Picking up nuts and bolts can be very frustrating.
36 Part of the plaintiff’s job also involves computer work such as testing finished feed. It took him a long time to change his way of using a mouse and he had started only recently using the finger in order to perform the left click, although he often swings his middle finger over in order to perform that task. To call that awkward would be an understatement and he is now definitely slower on the computer. In addition, although he tries and uses the finger on the keyboard, he experiences an odd sensation when he uses it and it often feels awkward for him.
37 At home, the plaintiff has difficulty with many domestic activities. He has difficulty performing tasks around the garden; in particular using a shovel or broom can be difficult and he has to alter the way he holds those items.
38 Using a pull starter on the mower and whipper snipper can also be difficult and the plaintiff needs to rely on his middle finger in order to use the accelerator on both tools.
39 Although he continues to play golf, the plaintiff plays far less than he would have but for his injury. One of the reasons he built his house on the back of the golf course was to enable him to play a lot. The problem with golf is that when he miss hits the ball, the jarring sensation increases pain in the finger. Had it not been for the incident, the plaintiff would be definitely playing more golf.
40 The plaintiff continues to play lawn bowls although the finger affects his ability to play properly. Generally, he tends to splay the bowl to the right. Sometimes if he is not careful, he can knock his finger with the bowl, which again increases the pain.
41 The plaintiff has difficulty using a knife and fork, tending to rely on the thumb and middle finger. He has difficulty writing and has to modify the way in which he does so. If he relies on the finger, writing is awkward.
42 The plaintiff has had to modify the way he uses a mobile phone, although sometimes he can use the finger, it feels cumbersome and awkward, therefore he tries to use the middle finger and thumb where possible, as is the case with using controllers for computer gains. In order to enlarge things on his phone, the plaintiff tends to use his middle finger and thumb, as using the finger is awkward.
43 The plaintiff has difficulty tying up shoe laces and tying knots.
44 In the past, the plaintiff chopped wood for his parents but has not attempted to resume that activity since the incident.
45 The whole joint at the end of the finger feels odd. The plaintiff needs to crack his fingers on the left hand to loosen those joints as he overuses them. When he over uses his right hand, the plaintiff finds the finger tends to swell up and also becomes painful.
46 The finger can be worse in extremes of temperature, both hot and cold. Unfortunately, the work site can be very hot and this increases the plaintiff’s finger pain.
47 The plaintiff finds picking up small items such as a pen or pencil with his right hand difficult. It is hard for him to do handyman jobs around the house such as picking up a nail, nut or bolt. Using a screwdriver can be difficult. Heavy movement involving the plaintiff’s hand causes jarring and exacerbates the pain in the finger.
48 The plaintiff is only forty six and is reminded of his injury daily, day in and day out and will be for many years to come.
49 In the witness box, the plaintiff showed the finger, which was missing about nine millimetres at the tip. He could make a claw involving the finger. There was a little bit of fingernail on the tip of the finger.
50 The plaintiff demonstrated that when using his hand, the finger stuck out to the side. He explained that it “just did not seem to engage.”[3] Generally, the finger could not become part of a claw curled around with his other fingers. His finger was in that position when brushing his teeth or his hair.
[3]Transcript (“T”) 6
51 The plaintiff confirmed that he had not been given advice that there was any further treatment and he had to just put up with it.[4]
[4]T7
52 In cross-examination, the plaintiff agreed he had not seen his general practitioner Dr Lu at Tatura Medical Clinic (“the practice”) about the finger since June 2010.
53 The plaintiff has attended the practice on three occasions since mid 2010 with other ailments. He attended in October 2010 complaining of a cough and there were a couple of attendances in early 2012 for an earache.
54 The plaintiff saw Dr Lu at the practice on 16 January 2014 to obtain a referral to Mr Hunt for the purposes of his case.[5] The plaintiff agreed he then told Mr Hunt that the little bit of nail on the finger was a “bit of a nuisance”.[6] The plaintiff did not tell him about the nail being painful when he ripped it off.[7]
[5]T11
[6]T12
[7]T31
55 There is numbness on the tip of the finger only and not on the sides. The plaintiff can move all joints of the finger, as Mr Ireland noted on examination. He can in fact curl his other fingers to brush his teeth. The plaintiff agreed there was no reason why the finger needed to stick out.[8] He can bend the finger a little bit forward and back as he demonstrated when examined by Mr Ireland.
[8]T13
56 The plaintiff did light duties for a little while after surgery.[9] He is now doing his pre incident duties. The plaintiff agreed he is able to grip a bucket handle. He can do whatever work is required in his eight hours shifts of which about sixty per cent of the work is manual.
[9]T15
57 The plaintiff confirmed that he lifted quite heavy bags of animal feed, weighing twenty five to thirty kilograms. He unstacked and decanted the bags and spent many or several hours in a day doing that part of the job, generally alone.[10] When he is lifting a bucket with another worker, the plaintiff usually uses his left hand.
[10]T17
58 The plaintiff’s work includes general machinery maintenance.[11] If machinery breaks down, he helps disassemble it and put it back together, depending on what needs to be done. He is also involved in daily maintenance, cleaning and greasing machines.[12] He can use fine tools when required.
[11]T17
[12]T18
59 The plaintiff agreed that when he knocked his finger he suffered severe pain that lasted half a minute or less.[13]
[13]T19
60 The plaintiff likes bowls and competes in intraclub and interclub pennant bowls.[14] He took up the game about three to four months before the injury.
[14]T20
61 The plaintiff moved to Tatura in February 2009 and started playing competition golf in November that year. He was “having a hit” before then.
62 The plaintiff agreed he could now play golf if he wanted to. [15] He was not sure whether he played four to six matches in 2010 in club competition. He found it hard to believe he played nine times in 2011 but he would not have a clue. Maybe in 2012, he played competition five or six times.[16]
[15]T21
[16]T22
63 When he lived at Murchison, the plaintiff played competitive golf every week during the winter months.[17] He has the same handicap of fifteen now as he did before the injury. He agreed the finger was for support rather than gripping when holding the club.
[17]T25
64 In re examination, the plaintiff explained the difficulty with golf is if he misses the ball, the jarring really hurts the finger. Holding the club is not too bad.[18] If it had not been for his injury, he thought he would be playing more golf. His finger is not stopping him playing per se. It is the fear of hurting it when he plays eighteen holes.[19]
[18]T36
[19]T37
65 The plaintiff plays pennant and club bowls during the week. The pennant season runs from October to March. He took up bowls within a year or so of moving to the area and he has continued to play. His father is a member of the same club.
66 The plaintiff agreed competition bowls and golf are held on the same day.
67 The plaintiff last played competitive cricket about a month before the incident and agreed he had basically retired but the incident made his mind up to do so.[20]
[20]T26
68 The plaintiff confirmed that he is not required to do excessive typing or computer entry at work.[21] He had to use his third finger for a while but he is now back to using the finger on the mouse.[22]
[21]T23
[22]T24
69 The plaintiff agreed he can do everything that is required to maintain the yard at home. He does gardening slowly and landscaping on his present property is a work in progress.[23] He has to do household tasks like sweeping and outside, he uses a mower and a Whipper Snipper.
[23]T24
70 The plaintiff agreed he could use his middle finger and thumb to roll cigarettes.[24] He agreed he accommodated other tasks, like writing, and can write what he needs to when he needs to. Although it feels different when he grips his knife and fork, he can still cut up his food.[25] “Maybe” he can use an axe to chop but he has not chopped firewood for his parents since injury.[26]
[24]T27
[25]T29
[26]T30
71 The plaintiff agreed that when his hand is at rest, there is no pain in the finger, as Mr Stapleton reported.
72 In re-examination, the plaintiff agreed that the finger hurts when doing activities such as work around the house. When he bumps his finger, the pain is excruciating.[27] He experiences excruciating pain once a shift or once a week.[28] He is unable to completely avoid bumping his finger at work.
[27]T36
[28]T39
73 The plaintiff agreed he had no difficulty lifting bags at work. He had to change his technique to grip properly. At the end of most days, the finger is sore and it feels generally swollen.[29]
[29]T38
74 The plaintiff now uses the finger to operate a computer mouse. He finger misses the mouse occasionally so he has to do it a second time and it just does not feel right.[30]
[30]T39
75 The plaintiff does not have the tip of his finger to control the pen when writing. Writing is not as easy as it used to be. The plaintiff has problems writing with bigger board markers. When shovelling or doing similar tasks, the plaintiff uses three fingers.
76 The plaintiff did not know why he left the finger protruding as he demonstrated in the witness box.[31]
[31]T40
77 The plaintiff confirmed that he made his mind up after the injury to give up cricket because of fear of being hit with the cricket ball. Had he not been injured, he would not have played full-time cricket after the incident but he would have played in testimonials and charity games.[32]
[32]T40
78 When asked about the manner in which he had to modify daily tasks such as rolling cigarettes, the plaintiff explained he supposed that it was a case of adapting to things he had to do.[33]
[33]T41
The Plaintiff’s medical evidence
Investigations
79 Dr Geaboc organised an x‑ray of the plaintiff’s right hand on 24 March 2010. It was reported there was amputation at the level of the mid distal phalanx of the ring finger with a bandage in situ. The terminal tuft tip with surrounding soft tissue had also been imaged and appeared in entirety.
80 There was an operative diagnosis of amputation to the right index finger tip in the operation report of 24 March 2010.
Treaters
81 Mr Hunt, the plaintiff’s treating orthopaedic surgeon, reported to the plaintiff’s general practitioner, Dr Lu in July 2010 that the plaintiff had quite a severe injury to his dominant right second finger on the said date, necessitating debridement and full thickness skin graft.
82 Consequently, the plaintiff had now clearly damaged his nail bed and had an ingrowing nail on both sides of the finger pulp and arrangements had been made for a bilateral wedge resection as of July 2010.
83 That procedure occurred on 16 August 2010, after which Mr Hunt hoped the plaintiff would be left with a finger now containing a narrower, but asymptomatic nail.
84 Mr Hunt reported in January 2014, having seen the plaintiff on 17 January 2014 for the purposes of his case.
85 Mr Hunt noted, following the bilateral wedge resection (the second operation), the plaintiff was left with a narrow but mostly asymptomatic nail. He said “mostly”, because the plaintiff had developed a small spicule of nail which remained a bit a nuisance.
86 Mr Hunt diagnosed a crush injury with loss of skin, palmar soft tissue and bone, which resulted in a reduction of about nine millimetres in length of the finger and left long-lasting legacies, in that the site of the full thickness graft was numb and tender, which reduced its functional value and the finger was slightly shorter and the nail distorted.
87 Mr Hunt thought the injury and associated impairment certainly restricted the plaintiff in several activities. He was a keen golfer and played off nine until the injury. It had now reduced his grip strength and sensitivity of the right hand, making it difficult to properly grip a club. He had now been forced to restrict golf to perhaps four games a year and looked elsewhere for sport and indeed took up lawn bowls.
88 Mr Hunt noted the plaintiff also had trouble picking up small items such as a pen with his right hand because of the loss of sensitivity of the finger pulp. He found he compensated for that partly by using the third finger in a pincer movement with the thumb (rather than the index finger which we all use) and he had also educated his left hand to take up more of the fine movements such as picking up a pen or a tea cup.
89 As such, the plaintiff found it difficult to help with handyman activities around the house and found it difficult to pick up a nail or smaller items such as nuts and bolts.
90 Mr Hunt thought the plaintiff’s grip strength was certainly reduced quite noticeably in the clinical sense. That resulted in the plaintiff having trouble at work in grasping bags or a scoop. He did his best to overcome that by using the left hand more and taking up some of the second finger duties with his third. In other words, he was able to do his job but only by compensatory mechanisms.
91 Heavy movements involving the injured hand caused jarring and when that happened, the plaintiff experienced quite marked pain at the injury site.
92 Fine or dexterous movements involving the injured hand were also limited. Gripping a hammer or axe was not too bad as the plaintiff could use the ulnar side of his hand, but grasping items such as a nail or bolts or even a screwdriver (which uses the median nerve side of the hand) was difficult and uncomfortable. Lifting or carrying objects was not a problem if no jarring occurred.
93 Constant repetitive work involving the injured hand led to swelling and pain over the anterior aspect of the second finger which the plaintiff noticed particularly at the end of a week’s work.
94 The plaintiff had problems with manual labour and manual handling. Lifting and carrying was not a problem but using a scoop or carrying buckets could be difficult. Mr Hunt thought the incapacity should be deemed permanent and no future treatment was required.
Medico-legal examiners
95 Mr Stephen Leitl, orthopaedic surgeon, examined the plaintiff on behalf of Allianz in June 2012.
96 On examination, there was some altered sensation of tip of the right index finger and some difficulty handling small objects and for pinch grip, the plaintiff more frequently used his other fingers.
97 The right index finger had been shortened distal to the DIP joint. The nail was irregular. There was a small nail spicule over the radial side of the tip of the finger. There was normal range of movement of all of the index finger joints. Two-point discrimination over the tip of the finger was four millimetres.
98 Mr Leitl noted the symptoms were continuous. The plaintiff used no medication. He enjoyed golf and bowling.
99 Mr Leitl noted the range of index finger joint movements was performed actively and he considered the plaintiff cooperated fully with the examination.
100 Me Leitl thought the plaintiff continued to suffer the after effects of the injury and amputation with altered nail growth and altered sensation. He considered the prognosis was for the continuation of current symptoms and signs and there was unlikely to be any further improvement.
101 Mr Leitl thought the plaintiff would suffer no harm by undertaking the normal activities of daily living. He considered the condition had stabilised and no further treatment was required.
102 Mr Murray Stapleton, plastic and hand surgeon, examined the plaintiff in June 2013 on behalf of the defendant’s solicitors.
103 The plaintiff told him he had no pain with his right hand at rest. His hand was painful if bumped, particularly in the cold weather. He tended to avoid using the index finger when manipulating small objects. In that situation, he placed the pulp of the thumb to the pulp of the middle finger. There was no sensation in the distal one-centimetre of the index finger tip and that of course would prevent the plaintiff ever using the index finger for manipulating small objects.
104 The plaintiff had movement to a slight degree in the distal interphalangeal joint. Power of grip was diminished.
105 Mr Stapleton thought the condition had stabilised. He noted the plaintiff’s right index finger had been shortened by one centimetre. The fingernail remained and was “parrot beaked”. The one-centimetre tip of the right index finger was devoid of transverse sensation.
106 Mr Stapleton could detect no functional component or psychological reaction. He noted the plaintiff had returned to work with some difficulty performing his normal duties and he believed as a shift miller, the plaintiff did not require formal restrictions in his duties.
107 The plaintiff was examined by plastic surgeon, John Anstee, in December 2013.
108 Mr Anstee noted the plaintiff went on to make a satisfactory though incomplete recovery from the injury following the initial surgery and a portion of the nail bed grew a distorted nail and on 16 August 2010, the nail was removed.
109 Mr Anstee noted the plaintiff had returned to work and managed satisfactorily, not taking part in any maintenance jobs at work.
110 Mr Anstee reported the plaintiff’s complaints included swollen and numb tip of the right index finger, avoiding a pinch grip using the middle finger, reduction of grip strength and more difficulty using tools.
111 On examination, Mr Anstee found the plaintiff a pleasant, cooperative man with reduced sensation in the right index finger tip and reduced range of movement in the joints of the right index finger. He noted the plaintiff suffered a crushing injury to the distal pulp of the right index finger and he had a permanent impairment in relation thereto.
112 The plaintiff was examined by hand surgeon, Damian Ireland, on 5 February 2014 on behalf of the defendant’s solicitors.
113 The plaintiff described his pre injury job was sixty per cent manual work lifting pallets of bags weighing up to twenty five kilograms, and forty per cent office work operating computers to control the machinery.
114 On examination, the plaintiff complained of numbness over the index finger amputation stump. He complained of tenderness on the ulnar side of the stump when the finger was knocked. That happened frequently as the plaintiff tended to exclude the index finger from power gripping, making it vulnerable to injury. He complained of awkwardness for that reason.
115 Mr Ireland found there was no specific functional loss and the plaintiff complained of weakness of grip.
116 Mr Ireland noted the plaintiff attended to all normal activities of daily living and household chores and maintenance, including gardening. He could drive without difficulty. The plaintiff said he had difficulty with lawn bowls and playing golf. He was playing once a week and now played once a month. He lived on a golf course and his handicap had not changed from fifteen.
117 Mr Ireland noted on examination the plaintiff presented as an honest reporter of historical facts and showed no tendency to exaggerate his symptoms.
118 The index finger was shortened by eight millimetres and there was deformity at the residual nail which was beaked. The tip of the index finger was atrophic. The pulp was stable and non tender. Firm percussion over both the radial and the ulnar sides did not elucidate a Tinels sign.
119 Sensation was tested by two point discrimination and was normal at six millimetres on both the radial and ulnar sides of the injured digit.
120 Measurement by goniometer was at normal range at the metacarpophalangeal joint and proximate interphalangeal joint. At the distal joint, range of movement was to ten degrees extension and to thirty degrees flexion.
121 Mr Ireland diagnosed amputation through the tip of the right index finger of the dominant hand. In his view, there was no functional component.
122 Mr Ireland considered there was no restriction of activities in terms of particular body functions, weight lifting, repetition or duration of work that was precluded by the stabilised injury to the plaintiff’s right index finger.
Overview
123 There is no dispute the plaintiff suffered a crushing injury to the distal pulp of the finger in a frightening incident. The amputation of the top joint of the finger has shortened its length by about nine millimetres.
124 By letter dated 24 July 2012, Allianz advised the plaintiff that his claim for impairment benefits relating to a right index finger injury suffered on 23 March 2010 had been accepted.
125 There is no suggestion in the medical evidence of any functional element in the plaintiff’s presentation
Credit
126 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[34]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[34](supra) at paragraph [12]
127 I found the plaintiff to be a truthful, credible witness who gave a straight forward account of his pain and restrictions without embellishment. There was no surveillance film or other evidence challenging the plaintiff’s reported level of pain and restriction. The plaintiff was an honest reporter and historian as Mr Ireland noted, with no tendency to exaggerate his symptoms.
128 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[35] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors);
[35](supra) at paragraph [11]
129 Generally, in his viva voce evidence the plaintiff described pain and restriction of a lesser degree than that deposed to.
130 I accept the plaintiff continues to experience pain in the tip of the finger on activity. There is a numbness on the tip of the finger only, the sides of the finger not being involved.
131 When the plaintiff’s hand is at rest, there is no finger pain. Once a week or once a shift, the plaintiff experiences excruciating pain in the finger when it is knocked. Such pain can last for up to thirty seconds.
132 I accept that after constant repetitive work and particularly at the end of the week’s work, the plaintiff has increased finger pain and his finger swells. The plaintiff also has reduced strength in his right hand.
133 However, movement of the finger joint is not particularly affected with Mr Leitl finding full movement and Mr Ireland noting only a very minor restriction on examination.
134 Although the plaintiff in examination-in-chief described how the finger would protrude when he formed a claw to grip items such as a toothbrush or hair brush, he later agreed he was able to form a claw with no difficulty. He could not explain why the finger would stick out.
135 The plaintiff has not required any ongoing medical treatment since last attending his general practitioner in June 2010. No further treatment has been suggested. The plaintiff does not require pain killing medication of any nature.
136 A couple of months after the incident, the plaintiff was able to resume full unrestricted work duties which involved sixty per cent manual work. He is able to grip, lift and carry the range of items involved in his work. He can undertake machine maintenance work without difficulty. He can still pick up bags and drums/buckets and unload pallets, although he prefers to use his left hand when performing these tasks.
137 There have been no formal modification to the plaintiff’s duties post incident or any concern expressed about the use of his right hand doing his current duties.
138 The plaintiff is also able to do the computer work involved in his job. In recent times, he has started to use the finger to operate the mouse, having used his index finger for some time after the incident.
139 The plaintiff’s major complaint relates to his ability to carry out some fine hand movements as Mr Anstee described, such as picking up nuts or bolts, but activities of this type do not form a major component of his work or activities at home.[36]
[36]T44
140 The plaintiff is still able to write as much as he is required to at work and his style is only altered in that he does not have the tip of his finger upon which to rest the pen.
141 The plaintiff is able to do work at home in the house and the garden at his own pace and does not require assistance. He has some difficulty using a hammer and an axe and has not cut firewood for his parents since the incident.
142 Whilst the plaintiff had given up cricket earlier in the year of the incident, I accept that he would have played in reunion or memorial matches, had he not suffered injury and feared being hit by a cricket ball as he described.
143 The plaintiff continues to play pennant bowls on Saturdays and club during the week. He does however have problems splaying the bowl on release and he has to be careful when bowling not to knock the finger.
144 I accept the plaintiff’s golf has been affected somewhat by his injury experiencing problems if he miss hits the ball and jars his right hand. His grip is unaffected by his injury. His handicap is the same as before the incident.
145 It is unclear why the plaintiff played competitive golf on a reducing basis since playing his first season in 2010 after the injury, with no evidence of a deterioration in his condition during that time.
146 Medico-legal examiners generally, whilst accepting there is some limitation, are of the view the plaintiff is able to carry out a wide range of physical activities.
147 As Mr Ireland noted, there is no restriction of activities in terms of particular body functions, weight lifting, repetition or duration of work precluded by the stabilised injury to the finger. Mr Hunt thought lifting and carrying heavy objects was not a problem if no jarring was involved.[37]
[37]T47
148 I accept that the plaintiff’s life is not what it was pre injury and he has had to adapt and in some respects he cannot perform some tasks as well as he could pre injury and he suffers pain.[38] As Mr Anstee described almost all right handed tasks would be made somewhat more difficult by virtue of this injury and some tasks would be impossible.
[38]See paragraph 78, per Ross AJA in Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12
149 However, the plaintiff has retained the ability to work full time in his pre injury job without restriction. His level of pain is such that he does not require medication and no further treatment has been suggested. He is able to do household tasks and other activities of daily living with little restriction
150 Taking into account all the evidence, I am not satisfied that the impairment to the plaintiff’s right dominant hand, by virtue of the amputation of the tip of his right index finger, is serious.
151 Accordingly, the plaintiff’s application is dismissed.
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