Dern v Saizeriya Australia Pty Ltd
[2014] VCC 2049
•10 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE DAMAGES AND COMPENSATION LIST | Revised (Not) Restricted Suitable for Publication |
Case No. CI-13-04655
| Larissa Dern | Plaintiff |
| V | |
| Saizeriya Australia Pty Ltd | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 December 2014 | |
DATE OF JUDGMENT: | 10 December 2014 | |
CASE MAY BE CITED AS: | Dern v Saizeriya Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2049 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: Serious Injury – Accident Compensation Act s.134AB(37(a) – injury to right upper limb- right hand – pain and suffering – whether sequelae meet the test.
Judgment: Leave is granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering in respect of the injury to the right hand suffered on 23 March 2010 during the course of employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms N Wolski | Slater and Gordon |
| For the Defendant | Mr I Gourlay | Minter Ellison |
HER HONOUR:
1 Ms Dern is 40 years old and right-handed. On 23 March 2010, while working for the defendant as a packer and pallet stacker, she sustained an injury to the right hand when it got caught between a pallet and the concrete floor of her workplace. Whilst the hand was not fractured, she was eventually diagnosed with Complex Regional Pain Syndrome (“CRPS”). She says that as a result of the injury to the right hand at work, she has sustained a permanent impairment of the function of the right upper limb. She says that, in terms of pain and suffering, the consequences of that impairment constitute a “serious injury” within the meaning of s.134AB(37)(a) of the Accident Compensation Act 1985 (Vic) (“the Act”), and she seeks leave under s.134AB16(b) of the Act to bring proceedings for the recovery of damages for pain and suffering only.
2 The defendant concedes that the plaintiff does suffer from CRPS and is stoic, but says that for a number of reasons the consequences of the impairment of the right upper limb are not more than considerable when compared with other cases in the range of permanent impairments. In particular, it says that the plaintiff’s condition has been described by doctors as mild or moderate and she is self-managing her condition without further medical treatment; that the degree of pain she suffers is not of the substantial type often found in these cases; that that she is coping with her symptoms in that she is able to work full-time, albeit in a different field, perform most activities of daily living (apart from vacuuming and mopping) – although more slowly than before, and engage in a fairly full range of pre-injury activities (although to a lesser extent than before) including fishing, playing basketball, swimming, boogie board riding, home renovating and going on holidays. The defendant also says that the plaintiff’s assertion that, when mowing the lawn, she pushes the lawn-mower with her stomach rather than with her hands is contradicted by the extracts of video surveillance shown in court. The surveillance material also shows her using her right hand to turn a screwdriver, bang on the top of the lawnmower, lift the lawnmower onto a ute, balance a number of pine lengths of wood on her right shoulder, which contradicts her claimed inability to grip objects. Finally, the defendant says that the plaintiff failed to tell various medico-legal doctors about her past history including a fracture of the right wrist when she was a teenager, and about some bruising and swelling of the right hand after an assault in 2009.
3 In the light of the parties’ agreement that the plaintiff’s condition is appropriately diagnosed as one of CRPS, there is no need to canvass all the medical opinions to this effect from her treating doctors (general practitioners, Dr Steve Stojkovski[1] and Dr Trinh Thai[2]; rehabilitation specialist, Dr Louisa Soh[3]; Plastic surgeon, Mr Mark Baldwin[4]) and from examining doctors including Dr PD Clark,[5] Dr Peter Blombery,[6] Mr Murray Stapleton,[7] Dr Clayton Thomas,[8] and Dr Dominic Yong.[9] I note that only Dr Karna,[10] while conceding that it was “conceivable” that the plaintiff may have developed “some degree” of CRPS at some earlier stage, felt that by the time he saw her in April 2102 there was “no evidence of such an ongoing problem”.[11] In the light of the predominance of medical opinion, including more recent opinion, which I accept, that, as at the date of the hearing, the plaintiff suffers from CRPS, I attach little weight to the reports of Dr Karna.
[1] See his report at Plaintiff’s Court Book (PCB) 39
[2] See his report at PCB 52.
[3] See her reports at PCB 42-46
[4] See his report at PCB 48-51
[5] See his report at PCB 57
[6] See his reports at PCB 62-71
[7] See his report at PCB 72
[8] See his report at PCB 76
[9] See his report at Defendant’s Court Book (DCB) 11-26
[10] See his reports at DCB 1-4
[11] DCB 3.
4 The plaintiff’s evidence about her work history, treatment, attempts at returning to work, and current symptoms and restrictions may be briefly summarised.
5 She completed Year 12, and she obtained a Diploma in Community Development in 2004. After leaving school she worked fruit picking, as a courier driver, and as a packer and pallet stacker with the defendant, working in a cold environment. After her injury, she tried to return to normal duties but could not manage. In 2010 she sought treatment from Mr Baldwin, who attempted to aspirate a hemotoma on the top of the right hand, injected the hand with steroids, and referred her for hand therapy, for which funding ceased after a time.[12] She was unable to perform her normal duties at work and by March 2011 was offered manual handling in sorting and replenishing stock, washing and moving wheelie bins and removing soiled laundry. Once diagnosed with CRPS, Dr Hogg prescribed medication (Gabapentin) but her symptoms persisted and her employer could not provide any work that she could undertake.[13] Funding for further hand therapy was declined in 2011, as was funding for myotherapy. She was funded for a three month gym membership. She was then given a hot wax spa treatment device which she uses when the hand gets cold.
[12] Affidavit of the plaintiff, 14 April 2013, PCB 4.
[13] PCB 5.
6 She has been working with a community health outreach provider full time since September 2012 and earns more now than she did when she worked for the defendant. She sees her general practitioner when she needs to. She takes 4-6 Nurofen per day, three days per week and, in the colder months, takes the same number of Nurofen five days per week.[14] She has been prescribed Lyrica but it makes her drowsy so she cannot use it when working and takes in on Friday and Saturday nights.[15] She has constant pain on the top of the right hand which is worse in cold weather. She also suffers from a tugging pain between the fingers of her index, middle and ring fingers which she describes as “feeling like fishing line being pulled”,[16] and which is aggravated by gripping activities. Nurofen does not relieve the pain completely but “takes the sharpness away.”[17] She can straighten the fingers in her right hand, but it takes a little time and often when relaxed the hand assumes a ‘clawed’ position. The hand swells and can change colour. She cannot carry out repetitive work or repetitive tasks using her right hand. The pain also affects her right arm several times per week. She uses the hot wax spa to provide relief. The pain in her right hand interferes with her sleep and she wakes up once or twice per night, between 4 and 6 nights per week. She has to warm up her right hand before she can get back to sleep. In winter, she will often wake with pain and get up to take Nurofen and use the wax hand spa between two and six times per night. She sits up for an hour or so to get her hand warm. She wears an insulated glove on the right hand during the day in the cold weather.
[14] Transcript 8 line 9-23.
[15] Ibid.
[16] PCB 10.
[17] See Transcript 55 line 15-17
7 Prior to the hand injury, the plaintiff enjoyed manual work and the satisfaction it gave her. She had no trouble sleeping. She is skilled at building and renovating and doing carpentry and tiling work. She and her partner have done 90% of the work renovating their house and had partly completed an extension before her injury.[18] She was very sporty and played basketball weekly in a lower level women’s competition with her partner. She was regularly on-court for the entire game and played offence without restrictions. She also played indoor volleyball in a family team. She loved the outdoor beach life and would spend much of each summer holiday fishing, swimming and boogie boarding. She went fishing regularly for twelve years with a friend and was able to fish all day. She was able to spend hours in the water each day. She was able to cut firewood and could mow the lawns unrestricted. She loved cooking and was able to do this without restriction. She was able to take care of herself and do the household cleaning without restriction. She was able to write and type unrestricted and enjoyed writing. She had two motorbikes which she planned to refurbish and ride with her son. She was fit and slim.
[18] PCB 7.
8 As a result of the right hand injury, the plaintiff suffers constant pain as noted above, which she manages as I have already outlined. She derived a great sense of achievement from the manual work she undertook for the defendant, and from the physical work she was capable of doing before her hand injury, and does not get the same sense of achievement from her current job, which she does not enjoy. She cannot control her big Labrador on the leash with her right hand and cannot walk him. She still plays basketball but mainly defends using her torso, plays two-handed, and does not dribble or take shots from long distances. She has put on quite a bit of weight due to a lower rate of physical activity since the injury. After each game she takes Nurofen and ices her hand.[19] She coaches a girls’ AFL D-grade football team but cannot run around or do drills with them; she just walks around and tells them what to do. She still goes to their caravan in summer but does not spend much time in the water because the cold affects her hand. She can no longer fish from her own boat because she cannot pull the motor starter cord. She can still fish from the shore but does not enjoy it as much because she cannot cast the line far and she cannot reel in a big fish. She can no longer ride a motor bike. She is very upset that she will not be able to teach her son how to surf, fish, renovate or ride motorbikes. She can still boogie board but without paddling, and enjoys it much less than before. She can no longer complete the extension on her home as she intended, as she cannot render, build the deck, do the guttering, complete the indoors, as she had intended to do.[20] This disappoints her greatly. She can use tools like a drill for a very short time, but this causes more pain in the hand. She can still mow the lawn but says that she pushes the mower with her stomach. She cannot mop or sweep. In the kitchen, she cannot lift heavy pans or stir food repetitively. She tries to use her left hand more. She can manage administrative tasks at work because she has been given a tablet.[21] She uses voice recognition software on her computer to avoid using her right hand. She cannot handle tongs and suffers pain gripping most objects. Whatever she used to do, she still tries to do, but more slowly.
[19] Transcript 64, lines 21-28.
[20] Affidavit of the plaintiff, 7 August 2014, PCB 12.
[21] PCB 12.
9 In relation to the activities she is seen doing on the extracts of surveillance video shown in court, the plaintiff agreed that in the footage taken on 9 June 2014 she pushed the lawnmower with both hands. She agreed that she was able to move some lengths of wood, and unload some shopping from the car, and was able to use a screwdriver with her right hand, tap on the lawnmower, lift it into the ute. She said that some of the movements caused her exacerbations of pain, and that was why she shook her right hand a number of times. She agreed that she is managing her pain as best she can. She said that she could not do any of the activities seen on the video repetitively for any length of time.
Legal Principles
10 In order to make out the serious injury within paragraph (a) of the definition in s 134AB(37) of the Act, the plaintiff must establish that she has suffered a permanent impairment or loss of a body function, and that the consequences to her in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[22] The Court must consider the impairment of a 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.[23]
[22]Accident Compensation Act 1985 (Vic) s 134AB(38)(c).
[23] Sabo v George Weston Foods [2009] VSCA 242, [66]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [42] (Ashley J).
11 On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[24]
[24]Fleming v Hutchinson (1991) 66 ALJR 211.
12 The “pain and suffering consequence” of an injury encompasses the plaintiff’s experience of pain and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. The intensity and frequency of the pain must be assessed in the light of the plaintiff’s evidence (which may be affected by the Court’s assessment of the plaintiff’s credibility), the treatment received, the medical evidence, and the objective evidence about the disabling effect of pain.[25]
[25] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [9]-[12]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [45]-[47] (Tate JA).
13 Generally, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[26]
[26]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199] (Dodds-Streeton JA).
14 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[27]
[27] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46.
15 Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[28] Each case has to be determined in the light of its own facts.[29]
[28]TAC v Dennis [1998] 1 VR 702, 703 (Callinan J).
[29]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
16 In determining the application the whole of the evidence is to be considered, and a successful return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering, particularly where the alternative employment found by a worker has not had the effect of reducing her symptoms.[30] What matters is the extent to which an area of work which the plaintiff enjoyed has been closed off to her or him. Overall the Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what she has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[31]
[30] Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 79 (Tate JA); Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
[31] Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].
Findings and Reasons
17 I found the plaintiff to be an impressive and understated witness, who gave evidence without embellishment. I do not consider that any of the surveillance material shown in court, which represents only 51 minutes of a total of 21 hours and 50 minutes of surveillance, detracts from the plaintiff’s credit. She was candid in acknowledging that she can take care of her personal needs, drive, work full time, undertake many of her former recreational pursuits, albeit with significant modifications, that she has had very little medical or other treatment in the past couple of years, and that she is doing her best to get on with her life.
18 On the other hand, she was emphatic in expressing her attachment to her work in a physical occupation and the loss of enjoyment she has experienced as a result of having to give up her chosen occupation and work instead full time in an occupation from which she derives little satisfaction. The organic sequelae of her right hand injury includes constant pain, loss of grip strength, and reduced manual dexterity. The pain is exacerbated by gripping activities and by repetitive use of the right hand. She takes a substantial amount of analgesic medication on a daily basis, along with additional and much stronger medication on weekends. Her sleep is interrupted by pain most nights and often more than once per night. She has had to curtail many of her former recreational activities and give up some of them. I found the plaintiff to be a fairly stoic woman who has done the best she can to adjust to the limitations forced upon her by her work-related impairment of the right upper limb.
19 I note that the plaintiff’s expert medical reports confirm the extent of her restrictions. All stated her ongoing need for analgesics and anti-inflammatory medications, as required,[32] and Dr Thomas stated that she had “moderate levels of pain and disability on a daily basis”.[33] Dr Blombery, in March 2014, regarded that the plaintiff is impaired in using her right hand “for fine and manipulative activities or for repetitive pushing, pulling, or lifting as well as for repetitive use” of her hand.[34]
[32] See reports of Dr Blombery dated 8 October 2012, 17 March 2014, PCB 64-65, 69-70; Mr Stapleton 12
June 2014 PCB 75, and Dr Thomas 13 June 2014 PCB 77-78.
[33] PCB 77.
[34] PCB 70.
20 In all the circumstances, I am satisfied that the pain and suffering consequences of her right upper limb impairment are more than considerable when compared with other cases in the range of permanent impairments.
Conclusion
21 Leave is granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering in respect of the injury to the right hand suffered on 23 March 2010 during the course of employment with the defendant. I reserve the question of costs.
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