Esposito v RGS Constructions Vic Pty Ltd

[2021] VCC 1199

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-05792

JOSHUA VINCENT ESPOSITO	Plaintiff
v
RGS CONSTRUCTIONS VIC PTY LTD (ACN 168 628 895)	Defendant

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JUDGE:	HER HONOUR JUDGE TSALAMANDRIS
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2021
DATE OF JUDGMENT:	27 August 2021
CASE MAY BE CITED AS:	Esposito v RGS Constructions Vic Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VCC 1199

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION   

Catchwords:              Serious injury – injury to right upper limb – pain and suffering damages

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013

Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181; Hooley v Transport Accident Commission [2019] VSCA 263

Judgment :Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Angenent	Carbone Lawyers Australia
For the Defendant	Ms D Manova	Thomson Greer

HER HONOUR:

Preliminary

1Mr Esposito is a 23-year-old man who suffered an injury on 6 June 2017, while he was working as an apprentice carpenter.  Mr Esposito and a co-worker were rehanging a glass door, when the pane of glass in the door broke unexpectedly, and fragments of the glass lacerated Mr Esposito’s right forearm (“the accident”).   

2In order for Mr Esposito to be entitled to claim common law damages for his pain and suffering, the impairment to his right forearm must satisfy paragraph (a) of the definition of “serious injury” contained in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). In the alternative, Mr Esposito must satisfy me that the disfigurement to his right forearm meets the definition of “serious injury” contained in paragraph (b) of the same section of the Act.

3Mr Esposito was called to give evidence and, due to COVID-19 restrictions, he did so via video.  Also in evidence were medical reports and other records relevant to Mr Esposito’s claim.  I have read these tendered documents, together with the transcript of the proceedings.  I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.

4For the reasons that follow, I am satisfied that the consequences to Mr Esposito from his right forearm impairment can be described as at least very considerable. I therefore grant Mr Esposito leave to seek common law damages for the injuries suffered by him in this accident.

Mr Esposito’s life before the work accident

5Mr Esposito was born in Australia in 1997 and lives with his parents in Melbourne. He attended school until Year 11.

6Following school, in 2015, Mr Esposito commenced an apprenticeship in carpentry with a company in Airport West. He worked in this capacity for approximately six months.

7In around July 2016, Mr Esposito commenced employment with RGS Constructions Pty Ltd. He was working with this employer at the time he suffered the injury to his right forearm in the accident.

8Mr Esposito stated that prior to suffering his right forearm injury, he was an active person who enjoyed boxing, attending the gym, and playing social cricket and tennis with his family and friends.  Prior to his injury, Mr Esposito also played competitive football for his former high school, St Bernard’s.  

The work accident and Mr Esposito’s claimed consequences

9Mr Esposito stated that after suffering his injury, he was taken by ambulance to St Vincent’s Hospital.  There, he underwent surgical debridement and repair of his right wrist.  Such surgery involved a repair of the radial artery, repair of his flexor carpi radialis tendon, and repair of the muscle belly of the flexor profundus longus. Thereafter, Mr Esposito’s forearm was splinted and he was discharged from hospital the following day.  Mr Esposito said that he wore this splint for approximately one month.

10At a six-week post-operative review on 26 July 2017 at St Vincent’s Hospital Plastic Surgical Clinic, it was noted that Mr Esposito was doing well, and that he would be able to undertake modified work duties until such time as he gained increased strength from hand therapy.

11On 20 June 2017, Mr Esposito attended on hand therapist, Ms Katie Anjou, whom he saw on a weekly basis until 1 August 2017.  Mr Esposito said that he ceased such treatment as he felt that Ms Anjou was not listening to his reports of pain and she was too keen to rush him back into pre-injury work duties.

12In or around early August 2017, Mr Esposito returned to work on modified duties, which included tasks such as vacuuming and sweeping. Shortly after he returned to work, Mr Esposito was informed by his employer that there was no further work for him to do, and his employment was subsequently terminated on 15 August 2017.

13In late 2017, Mr Esposito commenced employment with Goz Constructions as an apprentice carpenter.  During that employment, Mr Esposito suffered a left hand injury, which required surgery.  However, Mr Esposito said that he recovered well from that injury.

14Mr Esposito said that he wanted to complete his apprenticeship.  However, he felt that his right wrist became sore and fatigued after working all day. Mr Esposito said that he came to realise that hands-on carpentry work was no longer a realistic option for him, so he decided to undertake further study to become a building and construction manager.

15In mid-2019, Mr Esposito started a two-year Diploma in Construction Management at RMIT, and he now has only one subject left to complete.  Mr Esposito said that in this course he has had to do a lot of typing and writing and, although he can manage this, when he does it for long periods, his hand becomes sore and fatigued.  Mr Esposito said he is unsure about the income he will earn in this alternate career, and is uncertain it will be suitable for him as it is not hands-on work.

16Whilst studying, Mr Esposito has also been employed in casual employment, working as a bartender at Moonee Valley Racecourse and as a labourer at Winslow Construction.

17Mr Esposito stated that he experiences pain, sensitivity, loss of feeling, numbness, and pins and needles in his right hand and wrist.  He stated that exposure to cold weather aggravates the pain and results in numbness in his right wrist.

18Mr Esposito stated that he also suffers from fatigue and soreness when he uses his right hand for prolonged periods of time.  He also stated that he finds completing activities that require repetitive use of his right hand, or that involve raising or lifting his right hand, more difficult.  Such activities cause him to experience pins and needles and lose feeling in his right hand.

19Mr Esposito said that he experiences pain in his hand about 60 per cent of the time.  For this pain, Mr Esposito stated that he takes over the counter pain relief medication including Panadol and Nurofen, and he usually takes two tablets, every day or every second day.  

20Mr Esposito also said that after showering he rubs lotion into his scar, to help with his scar tenderness, Mr Esposito also said that a couple of times a week, he performs hand exercises which he was taught by his hand therapist.

21Mr Esposito stated that he struggles to perform simple tasks and activities, including activities around the house such as helping his father to install shelves in their house.

22Mr Esposito said that prolonged driving causes his right hand to become sore and fatigued.  

23Mr Esposito said that he was an active person prior to suffering his work injuries.  He stated that he now struggles to play tennis and cricket with his friends and family, as using the racquet or bat causes sharp pain in his right hand and wrist.

24Mr Esposito stated that he recently attempted to re-commence boxing training. However, he said that striking the boxing bag caused him pain and soreness in his right hand and wrist, such that he ceased boxing training.

25Mr Esposito said that he has continued going to the gym and, although he is not restricted in the exercises he performs, he said that he lifts lighter weights and focuses more on cardiovascular exercises.

26Mr Esposito stated that he re-commenced playing football in the 2019 pre-season and played six games in the 2019 season for St Bernard’s football club between April and July.  However, he thereafter stopped playing as he said that he suffered pain and discomfort in his right forearm during those games.

27Mr Esposito stated that he finds it frustrating and saddening that he is now unable to be active and participate in sport in a way that he used to, as participating in sport had always been something that he enjoyed and had been a big part of his life.

Medico-legal evidence

28In October 2020, Mr Esposito was examined by sports and industrial physician, Dr David Kennedy.  In a report dated 2 November 2020, Dr Kennedy detailed the circumstances in which Mr Esposito had suffered his injury and noted that, at the time of the examination, he complained of pins and needles with numbness around the surgical scar, extending to the thumb and outer part of the little finger, reduced grip strength of the right hand and painful movements of his thumb and index finger.  Dr Kennedy noted that Mr Esposito had problems writing for any length of time and keyboarding on a computer.  Dr Kennedy also noted that Mr Esposito had given up sporting activities, including boxing, cricket and tennis.

29On examination, Dr Kennedy noted a surgical scar in the shape of a Z, which measured approximately 12 centimetres in length.  Dr Kennedy noted there were almost full movements, with pain at the extremes of the movements of the small joints, particularly Mr Esposito’s right thumb and index finger.  Dr Kennedy considered that Mr Esposito’s ongoing problems are consistent with the injury he sustained in the work accident, and he considered there were no obvious discrepancies between his current symptom presentation in the clinical findings on examination.

30Dr Kennedy noted that Mr Esposito reported that he had difficulty with his apprenticeship in carpentry and that he had subsequently undertaken study in building and construction.  Dr Kennedy stated that Mr Esposito should continue with his studies so he is able to commence more sedentary work, avoid excessive load and stress on his right distal forearm, wrist and hand, particularly with lifting and carrying activities, or excessive gripping and grasping activities with his right hand.  Dr Kennedy also recommended that Mr Esposito continue with the exercises shown to him by his hand therapist.

31In February 2021, Mr Esposito was examined by hand, plastic and reconstructive surgeon, Mr John Buntine.  In a report dated 19 February 2021, Mr Buntine detailed Mr Esposito’s background and the circumstances in which he suffered his injury.  He noted that at the time of the examination Mr Esposito stated that he undertook self-treatment for his right wrist for approximately 20 minutes about twice weekly.  Further, it was noted that Mr Esposito did not persist with manual desensitisation of his scar because it causes him discomfort.

32When this aspect of Mr Buntine’s report was put to Mr Esposito in cross-examination, he accepted that he only does his hand therapy exercises a couple of times a week.  However, Mr Esposito said that he does rub lotion into his scar each day after he showers.  Mr Esposito said that he understood that this would assist with his scar’s tenderness.

33Mr Buntine noted Mr Esposito’s present complaints included continuous pain affecting the lower volar aspect of his right forearm when his hand is used, weakness of grip in his right hand and the discomfort at the limits of movement at his right wrist.  Mr Buntine also noted that Mr Esposito stated that he disliked the appearance of the Z-shaped scar and hides his scar when practicable, by wearing long sleeves or long gloves. 

34On examination, Mr Buntine noted that the longitudinal length of the scar was 9 centimetres and the strip of forearm skin was 2 centimetres wide.  Mr Buntine considered the upper half of the scar was “minimally palely thickened”, but the lower half was mildly reddened.  Mr Buntine then considered that the distal extremity of the scar was fine, pale and inconspicuous.  Mr Buntine considered that the scar was unduly sensitive to light touch and he noted that Mr Esposito complained that the sensitivity to touch extended for about 2 centimetres in both the lateral and medial directions from the scar. 

35Mr Buntine then performed grip-strength tests, which demonstrated what he considered to be clear evidence of lessened use of the dominant right hand.

36Mr Buntine diagnosed Mr Esposito as having suffered a division of the radial artery and of the tendon flexor carpi radialis, and 60 per cent division of the muscle belly of the tendon of the flexor pollicis longus in the workplace accident.  He noted that the divided structures were satisfactorily repaired.  Mr Buntine considered that in the short term Mr Esposito would suffer scar sensitivity and deep discomfort in his right hand, but that this would subside slowly over a significant period of time, providing desensitisation of the scar is resumed and Mr Esposito continues with strengthening exercises or grip of his right hand.  Mr Buntine recommended that Mr Esposito undergo vigorous hand therapy.  Ultimately, Mr Buntine considered that Mr Esposito’s injury to his right wrist was clearly not resolved, but that the physical effects of his injury should be “capable of resolving almost completely over a moderately long period of time”. 

37Mr Buntine was of the opinion that, given Mr Esposito’s difficulties with ongoing pain, with weakness of grip in his right hand and some limitation of movements in his right wrist, he was verging on abnormal illness behaviour.  Although Mr Buntine considered that Mr Esposito would be better managed by a hand therapist than a psychologist.

38In April 2021, Mr Esposito was examined by occupational physician, Dr David Barton.  In a report dated 14 April 2021, Dr Barton detailed the circumstances of Mr Esposito’s workplace accident and the treatment he subsequently received for it.  Dr Barton noted that Mr Esposito complained of ongoing issues with diffuse pain around his right hand, wrist and lower forearm. 

39On examination, Dr Barton considered that Mr Esposito’s grip strength was 30 on the left side and 20 on the right side, with pinch testing indicating 10 on the right and 15 on the left.  Dr Barton noted that there was greater muscle bulk of Mr Esposito’s right arm, which Dr Barton considered demonstrated that he was undertaking a variety of life activities using his right arm.  Dr Barton then concluded that the physical findings made “little medical sense”.  Dr Barton then stated that, in his opinion, Mr Esposito had essentially recovered from the laceration injury to his right arm, and that his reduced grip strength, reduced pinch test and generalised weakness suggested a small degree of overlay

40Also in April 2021, Mr Esposito was examined by plastic and reconstructive surgeon, Mr John Crock.  In a report dated 3 June 2021, Mr Crock detailed the circumstances of the work accident and the treatment provided for it.  Mr Crock noted that Mr Esposito complained of extreme sensitivity in his right forearm when the scar and skin flap were lightly touched, such that he experienced electric shocks up and down his forearm.  It was also noted that he complained of reduced grip strength on his right-hand side. 

41On examination, Mr Crock noted a large skin flap running down Mr Esposito’s right forearm.  Mr Crock then described the scar, which measured 9 centimetres long, with an extension on the other side measuring 3 centimetres.  Mr Crock described the scar as slightly raised, slightly hypertrophic, purple distally and white with pink edges proximally.  He noted that the scar was hypersensitive to touch and the whole limb of the scar reconstruction area was hypersensitive so that light touch was able to produce extreme pain which runs down into Mr Esposito’s hand and up into his elbow.

42Mr Crock noted that Mr Esposito had a full range of movement in his right hand and wrist.  However, a grip-strength test indicated that his right side was 10 kilograms, 5 kilograms and 8 kilograms, using the JAMAR dynamometer set, whereas on the left side his grip strength was 20 kilograms, 10 kilograms and 15 kilograms.

43Mr Crock noted that Mr Esposito experienced hypersensitivity of his scar and noted that if he rubs the area with a towel it causes him a lot of pain.  Mr Crock then noted that Mr Esposito had a full range of movement in his hand, but noted that Mr Esposito complained that grasping and holding things causes pain in the forearm, which was reflected in his reduced grip strength in his right hand.  Mr Crock noted that Mr Esposito’s recreational activities had been significantly impacted, including boxing, football and cricket.

44Mr Crock is of the opinion that, due to the hypersensitivity in Mr Esposito’s scar, surgical intervention was not advisable, as there was a chance his symptoms could worsen.

45Mr Crock is of the opinion that the hypersensitivity in Mr Esposito’s forearm produced pain, which affected tasks such as pushing, pulling, lifting, repetitive pushing and pulling and lifting above his head.  Mr Crock also noted that fine manipulative tasks could be affected by the shooting pain, and this affected Mr Esposito’s manual dexterity.  Mr Crock considered that Mr Esposito’s condition will remain chronic and will impact his ability to work into the foreseeable future.  Mr Crock recommended that Mr Esposito could be examined by a neurologist or pain specialist to see if his condition could be improved by medical means. 

46In June 2021, Mr Esposito was examined by neurologist, Dr Michael Tan.  Due to COVID-19 restrictions in place at the time, this examination was conducted by video.  In his report dated 10 June 2021, Dr Tan detailed the circumstances of the workplace accident and surgical treatment Mr Esposito received for it.  Dr Tan then detailed the medical opinion of numerous doctors who had assessed Mr Esposito in respect of his work injury. 

47As the examination involved a Telehealth appointment, Dr Tan was not able to physically examine Mr Esposito’s scar or conduct any examination of his right hand and forearm.  However, based upon Mr Esposito’s complaints of pins and needles around a scar region, together with nocturnal hand symptoms, Dr Tan considered Mr Esposito may suffer carpal tunnel syndrome.  Therefore, Dr Tan recommended that Mr Esposito undergo nerve conduction tests. 

48In a report dated 5 August 2021, Dr Tan reviewed the recently performed nerve conduction study report dated 30 July 2021, and noted that it excluded a differential diagnosis of carpal tunnel syndrome.  However, Dr Tan considered there remained the potential involvement of the palmar cutaneous branch of the median nerve resulting in dysaesthesia, as the palmar cutaneous branch of the median nerve was not assessed in the nerve conduction study.

49Dr Tan recommended that a referral to a pain management specialist may be indicated.  When this aspect of Dr Tan’s report was put to Mr Esposito, he said that he had not really turned his mind to going to see a pain management specialist. 

Mr Esposito’s credibility

50Overall, I considered Mr Esposito to be a reliable and credible witness. Mr Esposito gave simple and straightforward answers.  At times, he struggled to clearly articulate his experience of pain and its consequences to him. For example Mr Esposito did not accept counsel’s suggestion that his pain was only mild, but struggled to find a word to describe its intensity.  Instead of immediately seeking to exaggerate his account of pain, I considered his delayed response to this was genuine, in keeping with his age and level of education and demonstrated his credibility.

51Mr Esposito said that he experienced pain about 60 per cent of the time, and expressly stated it was not present all of the time.  He readily accepted that it did not impede his social life.  He was still able to attend the gym and was able to do the writing and typing for his course, although doing so for prolonged periods would bring on his pain.

52The defendant tendered video footage taken of Mr Esposito on several days in November 2020 and March 2021.  The defendant admitted it had Mr Esposito under surveillance for approximately 10.5 hours, but only 16 minutes of footage was shown. In the video, Mr Esposito was seen to close his car door with his right arm, but he said that in doing so, he did not use his right wrist.  Mr Esposito was also seen to carry a sports bag that then slid down his right arm and crossed over his scar area and he did not appear to flinch.  In addition, he was seen to have his hands in his pockets, which necessarily would involve some touch of his scar area with the inside of his clothing.

53I considered the video consistent with a young man, going about his life, without any apparent restriction.  However, in light of Mr Esposito’s evidence that the pain is not present all of the time, and that it does not always give him an electric shock, I do not consider this video to be inconsistent with his oral evidence.

Mr Esposito’s pain and suffering consequences from his right arm impairment

54In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[1] Maxwell P stated that, in assessing a plaintiff’s pain and suffering consequences, the Court should have regard to what the plaintiff says about the pain, what the plaintiff does about the pain, what the doctors say about the extent and intensity of the plaintiff’s pain, and what objective evidence shows about the disabling effect of the pain.  The weight to be attached to the plaintiff’s account of pain depends largely upon an assessment of the plaintiff’s credibility.  President Maxwell noted that the Court will make its own assessment of the plaintiff’s credibility based upon the evidence provided, and said that the Court may also take into account the views expressed by examining doctors as to the reliability of the plaintiff’s accounts of pain.[2]

[1] (2010) 31 VR 1

[2]        Haden Engineering v McKinnon (ibid) at paragraphs [9]-[12]

55As stated previously, I consider Mr Esposito to be creditworthy and reliable, and I have no hesitation in accepting his evidence. His credibility bears significantly on my assessment of his evidence regarding his pain experience.

56The doctors all accepted that Mr Esposito suffered a significant laceration injury to his forearm. The doctors were relatively consistent in a finding of reduced grip strength. Mr Buntine felt that, with further hand therapy, Mr Esposito’s symptoms may subside slowly over a significant period of time.  However, given Mr Esposito’s evidence that he does hand exercises a couple of times each week and four years have passed since the accident, notwithstanding Mr Buntine’s optimism, I am satisfied that the consequences to Mr Esposito will persist.  

57I accept Mr Esposito’s sensitivity to pain is genuine and affects him on a daily basis. 

58I accept that, although his pain is not constant, Mr Esposito experiences some pain each day, and his pain is more than mild.  I accept at times the pain feels like a shooting sensation that causes him to jump.

59I accept that Mr Esposito takes over the counter pain medication every other day, as consequence of his right forearm pain.  As has been recognised by the Court of Appeal in previous cases: “… the endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[3]

[3]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 at paragraph [199]. See also ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31

60I accept that Mr Esposito has retrained due to his pain and the difficulties he experienced completing his apprenticeship. It is commendable that he adapted so quickly to his restrictions, and it may well result in increased earning potential. However, I accept Mr Esposito’s evidence that he had wanted to be a hands on builder, and he feels concerned as to how he will work in a job that is primarily off the tools.

61In considering the “disabling effects of pain”, I am also satisfied that Mr Esposito suffers the following consequences as a result of his right forearm injury:

·        He is no longer able to play football, an activity he previously played at a competitive level. Notwithstanding his study and work commitments, I am satisfied that this is an activity that Mr Esposito would have undertaken now and into the future, but is not able to do so due to the pain he experiences in his forearm.

·        He is no longer able to do boxing due to the pain he experiences.

·        He is no longer able to play cricket or tennis.

·        He is limited in the weights that he lifts at the gym.

·        His ability to type and write for long periods is compromised due to pain.

62I am mindful that Mr Esposito is still young and I am satisfied that he will suffer these consequences for decades to come. As was noted by Ashley JA and Beach AJA in Stijepic v One Force Group Australia Pty Ltd & Anor:[4]

“… when judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period to which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”

[4][2009] VSCA 181 at paragraph [43]. Affirmed in the Court of Appeal decision of Hooley v Transport Accident Commission [2019] VSCA 263

63Collectively, I consider these consequences to be more than significant, and at least very considerable to Mr Esposito.

Is Mr Esposito’s scarring “serious”?

64The parties accepted that if I was satisfied that Mr Esposito’s right arm impairment satisfied the serious injury definition under sub paragraph (a), it was not necessary for me to separately determine whether the scarring and disfigurement to his forearm is “serious”.  Therefore, it was not necessary for me to have Mr Esposito attend Court for an in person assessment of his scar.

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