Davis v SPC Ardmona Operations Limited and VWA

[2010] VCC 804

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL JURISDICTION
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-09-02802

MARK ANTHONY DAVIS	Plaintiff
v
SPC ARDMONDA OPERATIONS LIMITED	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE SHELTON
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2010
DATE OF JUDGMENT:	17 June 2010
CASE MAY BE CITED AS:	Davis v SPC Ardmona Operations Limited & VWA
MEDIUM NEUTRAL CITATION:	[2010] VCC 0804

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Serious injury application – s.134AB Accident Compensation Act 1985 – amputation of tips of three fingers of dominant hand – application under paragraph (a) and (b) of definition of “serious injury” – return to alternative work on full-time basis – no need to “disentangle” – leave granted to issue proceedings for recovery of damages with respect to pain and suffering only pursuant to paragraph (a) and not paragraph (b) – Sabo v George Weston Foods [2009] VSCA 242; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12; Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Smith	Slater & Gordon
For the Defendant	Mr R H Stanley	Thomson Playford Cutlers
HIS HONOUR:

Introduction

1 This is an application by way of Originating Motion seeking leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of damages in respect of the amputation of the fingertips of the index, middle and ring fingers of the plaintiff’s left hand (“the injury”). The injury was suffered by the plaintiff in the course of his employment with the first defendant on 23 June 2006 while he was working on a machine at the first defendant’s premises (“the accident”).

2 Section 134AB(19)(a) of the Act provides that I must not give leave to bring the proceedings unless satisfied on the balance of probabilities that the injury suffered was a “serious injury”.

3 Section 134AB(37) of the Act, so far as relevant, defines “serious injury” as follows:

“serious injury means –

(a)	permanent serious impairment or loss of a body function;
(b)	permanent serious disfigurement;
… .”

4 The plaintiff seeks leave to bring proceedings in relation to consequences with respect to pain and suffering only: see s.134AB(17) of the Act.

5 Section 134AB(38)(j) requires me to assess whether, at the present time, the plaintiff has a “serious injury”.

The Issues

6 It is not in issue that the accident occurred and that the injury is permanent. The main issue for my determination is whether, under paragraph (a) or paragraph (b) of the definition of “serious injury”, the consequences to the plaintiff of his impairment or disfigurement are serious “when judged by comparison with other cases in the range of possible impairments of a body function [or] disfigurements” which when so judged could be “fairly described as being more than significant or marked, and as being at least very considerable” - see s.134AB(38)(b) and (c). Thus, this is “a range case”.

7          Should I decide that the plaintiff has suffered a “serious injury” as defined in paragraph (a), there is no need for me to determine whether the plaintiff has suffered a “serious injury” as defined in paragraph (b).

Application under paragraph (a) of definition of “serious injury”

8          The body function relied upon by the plaintiff is his left hand.

9          I note the comments by the Court in Sabo v George Weston Foods [2009] VSCA 242, at paragraph 66, that:

“… the court must consider the impairment of body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments. As Ashley JA said in Stijepic:

‘The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other.’”

The Plaintiff’s Evidence

10        The plaintiff relied upon an affidavit sworn by him on 16 February 2009, and also gave viva voce evidence. He was the only person on the application to do so.

11        The plaintiff was born on 12 February 1962 and is now aged forty-eight. He is married with two children, aged nineteen and twenty-one. He went to Year 10 level at technical college and since then has been engaged in manual labouring jobs. He is left-hand dominant. He commenced employment with the first defendant in about 1995 and at the time of the accident, was employed as a team leader with the first defendant. After he suffered injury, he was flown to St Vincent’s Hospital in Melbourne and underwent plastic surgery. His ring finger was replanted and his middle and index fingers shortened. He made a good recovery from the plastic surgery and returned to work on 28 July 2006 on alternate duties, only five weeks after the accident. Following the surgery, he underwent intensive hand therapy with Mr Mohan Bodhankar, a hand therapist.

12        The plaintiff states that now he experiences pain down the side of his middle and ring fingers and at times through the nail of his ring finger. At times he has an intense shooting pain from the outside of his hand into the middle of his palm. He has a constant feeling that the fingers of his left hand are squashed. He described this as “the most significant symptom”. He stated: “it’s uncomfortable; it’s a tightness, like pressure”.

13        He is awakened two or three times a night by pain in his left hand.

14        He periodically has nightmares of the accident.

15        He does not have the same levels of energy. Work exhausts him and he is usually in bed by 7.00 pm most evenings which affects his social life.

16        His left fingers really ache in cold weather, which is particularly relevant in an inland city such as Shepparton where he lives, where early morning temperatures in winter are often freezing.

17        Intimate moments with his wife can be embarrassing because of his awkwardness with his left hand.

18        He now tends to use the thumb and little finger of his left hand to grip things more than prior to the accident. He has lost grip strength and tries to avoid repetitive or prolonged use of his left hand. Simple daily tasks, such as handling coins and doing up buttons or tying shoe laces, are now awkward to perform. He has difficulty lifting with his left hand unless the object is in the palm of his hand.

19        Prior to the accident, he was quite a home handyman. In a previous home he had built a carport, shed, pergola, carried out paving, polished floorboards and re-tiled the kitchen. About twelve months prior to the accident, he moved with his family into a new house and again built a pergola and did outdoor concreting. He has been unable to perform such activities since the accident. He cannot handle power tools because of the lack of feeling in his fingers. He has had trouble holding a paint roller in his hand. In the garden, using a shovel jars his fingers.

20        Writing is now more difficult and his writing hard to understand.

21        The injury has interfered with the plaintiff’s leisure activities. He used to play golf at least once a week, sometimes up to three times a week. He can no longer play golf since he cannot grip a club and cannot properly swing a golf club.

22        He enjoyed fishing. He can no longer go fishing on account of the difficulty in tying lines and baiting the hook, and also gripping a rod. He was fond of camping prior to the accident. Pitching a tent and carrying camping equipment around now causes difficulties. He used to regularly play darts with his brothers-in-law in a competitive fashion. He is nowhere near as competitive throwing darts with his right hand.

23        As mentioned, the plaintiff has limited education and has always been involved in manual-type work. He has an office-type supervisory role with the first defendant at the moment which attracts a higher salary. He is anxious, however, that, should this employment cease given his inability to carry out manual work, his employment prospects are limited. He also preferred his position as a team leader which was more “hands on” and there was more interaction with fellow employees. At the height of the fruit picking season he had twenty employees under his control.

24        The plaintiff struck me as a very credible witness who, if anything, downplayed the significance of his injury. Mr Stanley, who appeared for the defendants, sensibly conceded that the plaintiff was a stoic individual and a credible witness. I accept the plaintiff’s evidence unreservedly.

Medical and Like Evidence

25        Refreshingly, not much time was spent in openings and final addresses trawling through medical and like reports.

26        A report from St Vincent’s Hospital dated 3 March 2008 states:

“Mr Mark Davis is a 44 year old gentleman who was brought to St. Vincent’s Emergency Department on 23 June 2006 with injuries sustained to his left hand after he had his left hand cut in running machinery while working in a cannery. Recorded history states amputation at the level of finger tips of all three middle fingers. Mr Davis was admitted under the care of the Plastic Surgical Unit and had surgery undertaken to his left hand. He had replantation of his ring finger at the finger tip level and shortening of his middle finger and index finger. He remained in hospital till 3 July 2006. He was discharged with subsequent review organised in [the] Plastic Surgical Outpatients Clinic. He was seen on 6 September 2006, eight weeks after his initial injury. He was deemed as having an excellent result. He was told he would need no further treatment at that time and he had returned back to work.

He was subsequently seen [in] December 2006, 5 months after his initial injury. His progress was deemed excellent. He was seen again [on] 5 December 2007, eighteen months after the initial injury. He had no major symptoms or complaints at the time and thus was discharged from the Plastic Surgical Clinic with [a] diagnosis that he had a good result from his initial injury and subsequent surgery.”

27        A report from Dr John Dyson of the Archer Street Clinic in Shepparton states that the plaintiff, on 5 October 2006, had a left hand grip strength of ten per cent and that this improved by 4 December 2006 to twenty per cent. The plaintiff states that his grip strength has not improved and thus he has a much reduced grip strength in his left hand.

28        The plaintiff last saw Dr Dyson with respect to his hand in December 2006, and states that he has not obtained any medical treatment for his left hand since then. He does not take any medication.

29        Mr Bodhankar saw the plaintiff on seven or eight occasions up to 7 December 2006. He provided intensive hand therapy and exercises which could be performed by the plaintiff at home. He stated that the range of movement, strength, dexterity and function of the plaintiff’s left hand improved progressively. He noted that the plaintiff was able to touch the palm of his left hand with his fingers with the exception of the index finger. In a report of 1 February 2008, he states that he expected that the plaintiff “may experience deficits in the sensibility and the dexterity of his dominant left hand function”.

30        Mr Felix Behan, plastic and reconstructive surgeon, examined the plaintiff on 22 February 2010 at the request of his solicitors. He expressed the view that deterioration may occur over time. He further stated:

“Future treatment may involve refinement of the pulp surface of the (L) index finger at the amputation site where a bony prominence is quite evident, and also in relation to the middle finger, where a spicule of bone is also apparent. The (L) ring finger demonstrates reasonable recovery in shape but is without sensation.”

31        The clear thrust of the medical evidence before me is that the condition of the plaintiff’s left hand has stabilised and that there will be no further improvement in its state.

32        Mr Stanley relied upon the following evidence as to the plaintiff’s mental state.

33        On 9 September 2008, the plaintiff was examined for the defence by Dr John Douglas, consultant psychiatrist. In a report of 12 September 2008, he stated that the plaintiff told him that he had periods of depression and that a month before his appointment he felt very frustrated and had cried and that he had periods when he felt nervous or anxious. In cross-examination, the plaintiff conceded that there were still times when he felt depressed and nervous or anxious.

34        Mr Stanley noted that the clinical records of Dr Dyson for 2 August 2006 stated that the plaintiff needed counselling for his Post-Traumatic Stress Syndrome and that on 17 August 2006, the plaintiff stated that he felt a bit depressed and very angry. In a report of 29 April 2008, Dr Dyson stated that although he had not seen the plaintiff since December 2006, he suspected that the plaintiff “may suffer some significant ongoing post-traumatic stress symptoms, and may take some years to fully adjust to his disabled hand”.

35        During 2006 and 2007, the plaintiff attended Mr David Jones, psychologist, on five occasions for psychological counselling. He stated that the plaintiff:

“… presented with clinically significant Post-Traumatic Stress Disorder with associated mixed generalised anxiety and depressive features. Mr Davis was in profound need of continued physical, psycho-social and occupational rehabilitation.”

36        Mr Stanley also relied upon WorkCover Certificates from 2006 which indicated that the plaintiff was suffering from Post-Traumatic Stress Disorder and Depression.

Discussion

37        As indicated, the plaintiff seeks leave to bring proceedings for the recovery of damages for pain and suffering only. I take account of the comments of the President in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, at paragraphs 9 to 17, where he looks at “pain and suffering consequence” under the headings of “the experience of pain” and “the disabling effect of pain”. I also note the reservations expressed by Buchanan JA, at paragraph 48, and Nettle JA, at paragraph 51, as to the value of a comparison with other cases and checklists of relevant considerations.

38        As to the plaintiff’s being able to return to work with the first defendant, but in another capacity, I note the comment of Ross AJA in Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12, at paragraph 26:

“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. ….”

and of the President in Haden Engineering, at paragraph 15:

“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.”

39 So far as the plaintiff’s mental condition is concerned, I am particularly mindful of the provisions of s.134AB(38)(h) of the Act.

40        The only references to Post-Traumatic Stress Disorder are in Dr Dyson’s clinical notes and his view as to the future in December 2006, the WorkCover Certificates from that period and Mr Jones’ comments in relation to 2006 and 2007. The plaintiff is now only suffering from some residual anxiety and depression as a result of the injury which is to be expected. There is no suggestion of exaggeration on his part.

41        The comments of Ashley JA, with whom Neave JA and Pagone AJ agreed, in Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167, at paragraph 19, are relevant:

“. . . A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.”

42        Here, there is not even any suggestion of “a supervening psychological overlay”. No “disentangling”, as submitted by Mr Stanley, is necessary.

43        Relevant factors in considering the application, in my view, are:

ƒ	The plaintiff is left-hand dominant.
ƒ	Pain in his fingers which is on occasion “an intense shooting pain”, the constant squashing sensation in the fingers of his left hand and being awakened two or three times a night by the pain in his left hand.
ƒ	Periodic nightmares of the accident.
ƒ	Aching of left hand in cold weather.

ƒ Work exhausts him.

ƒ  The stoic nature of the plaintiff and his positive motivation – as shown, for example, by his early return to work. In Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, Nettle JA, said of such a plaintiff:

“… But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”

ƒ	The plaintiff’s having only twenty per cent grip in his dominant left hand and the effect of this on daily activities.
ƒ	Interference with the plaintiff’s home handyman and leisure activities.

ƒ The possibility of further surgery being necessary as suggested by Mr

Behan.

ƒ	The plaintiff’s anxiety about his work prospects in the future.
ƒ	The plaintiff’s ability to return to full-time alternate employment.

44 In all the circumstances, the plaintiff has, in my view, clearly satisfied s.134AB(38)(b) and (c) of the Act with respect to the definition of “serious injury” under paragraph (a) so far as pain and suffering consequences are concerned.

Application under paragraph (b) of definition of “Serious Injury”

45        Having so found, there is no need for me to consider whether the plaintiff has suffered a “serious injury” within the meaning of paragraph (b). For the sake of completeness, however, I deal with the application under paragraph (b) in summary fashion.

46 Again, so far as paragraph (b) is concerned, this is “a range case”. As is clear from the wording of s.134AB(38)(b) and (c), “serious” has the same meaning under paragraph (b) as under paragraph (a).

47        I saw the plaintiff’s left hand and also photographs of it taken by Mr Behan on 22 February 2010. I note the comment of the plaintiff at paragraph 21 of his affidavit sworn 16 February 2009:

“I am embarrassed by the disfigurement I now suffer from. I often notice people staring at my hand and at times people who I don’t know ask me how I suffered injury. There are times when I find this quite irritating.”

48        I note with interest that in their final addresses, neither counsel referred to the application under paragraph (b) and only did so after I reminded them.

49        In all the circumstances, I am far from satisfied that the plaintiff has suffered a “serious injury” as defined in paragraph (b).

Conclusion

50        I give leave to the plaintiff to issue proceedings for the recovery of damages with respect to pain and suffering.

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