Foley v Western Forklifts P/L and VWA
[2011] VCC 1103
•23 June 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
No. CI-10-01410
| COLIN FOLEY | Plaintiff |
| v | |
| WESTERN FORKLIFTS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE JENKINS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 April 2011 |
| DATE OF JUDGMENT: | 23 June 2011 |
| CASE MAY BE CITED AS: | Foley v Western Forklifts P/L and VWA |
| MEDIUM NEUTRAL | [2011] VCC 1103 |
| CITATION: |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION Application for leave pursuant to s. 134AB Accident Compensation Act 1985 Paragraph (a) of serious injury definition; Pain and suffering consequences only; Assessment of consequences associated with injury to non- dominant left hand; Leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Collis QC with | Vincent Verduci & |
| Mr Ingrim | Associates | |
| For the Defendants | Mr Ryan | Wisewould Mahony |
| HER HONOUR: |
Nature of Application
1 This is an application for leave to bring a proceeding for the recovery of damages pursuant to section 134AB of the Accident Compensation Act 1985 (“the Act”) made by Application pursuant to section 134AB(4) on 18 November 2009 by the Plaintiff, in respect of an injury suffered by him in the course of his employment with the first Defendant on 18 March 2008. On that date, whilst working as a truck driver, the Plaintiff suffered a crush injury to the index finger of his left hand.
2 The Plaintiff seeks a declaration that he suffered a serious injury as defined within section 134AB(37) under paragraph (a), by reason of an injury to his left index finger and consequent impairment of function to his left hand.
3 Leave is sought in relation to damages for pain and suffering only.
4 In the course of the application, the Plaintiff gave oral evidence and was cross-examined. Otherwise the parties rely upon material tendered by them which included three affidavits sworn by the Plaintiff,[1] a number of medical reports which were tendered by both parties and extracts from medical files which were tendered by the Defendants.
[1] dated: 24/11/2009 - PCBpp.19-25; 14/08/2010 - PCBpp.31-39; and 30/01/2011 - PCBpp.39(a)-(c)
5 The Defendants dispute the seriousness of the consequences of the Plaintiff’s claimed injury.
The Plaintiff’s Evidence
6 The Plaintiff was born on 6 February 1965 which makes him now 46 years old and 43 years old at the time of his injury.
7 He attended Camperdown Primary School and Cobden Tech School from year 7 until Year 10. He left school at the age of 16.
8 He then undertook a four year apprenticeship in garment construction at the end of which he was a qualified Tailor by trade. He continued to engage in this trade to some extent up to the time of his injury because it was something he enjoyed doing. He also assisted family and friends in garment alterations.
9 When he completed his apprenticeship he obtained employment with Country Road on a full-time basis as an Apparel Cutter. His position title was again "garment construction".
10 Between 1986-1987 he was employed by Ripcurl as a full-time Apparel Cutter.
11 He then undertook employment with Great Shape Clothing again as an Apparel Cutter on a full-time basis, undertaking similar duties to what he had been doing at Country Road and Ripcurl. In addition he also unloaded trucks. He did this for about 2 years.
12 In 1990 he commenced with Robroad Transport as a truck-driver on a full-time basis where he remained for about 15½ years. His duties included: driving a heavy ridged truck; and loading and unloading general freight to other companies. In the last 5 years at Robroad he was Operations Manager with responsibilities including customer service, allocation of loads and vehicles, supervision of up to 17 staff, radio control and pricing for jobs.
13 Between 2005 and 2007 he was employed as a truck driver for a number of companies including: Wallington Rural on a full time basis as a Tip Truck driver, for approximately 16 months; Tip-Top Bakeries, as a full-time truck driver for approximately 7 months; SA Access in Adelaide as a truck driver on a full-time basis for about seven months; and DFS Holdings in Melbourne on a full time basis for about 8 months, where he also worked as a Mechanic's Assistant when there was no material to deliver.[2]
[2] PCB 21 paras 10 to 13. The Plaintiff commenced with DFS on 18 August 2006: DCB 2 para (g) & (h)
14 DFS was taken over by United Equipment[3] when all of the employees were moved from the Geelong depot to Altona in Melbourne. He was employed with this company as a full time truck driver for about 12 months until he had the work place accident. His duties included; delivering and picking up forklifts and access gear after loading them onto the 8 ½ tonne truck.
[3] The Plaintiff formally commenced with the Defendant, a wholly owned subsidiary of United, on 6 June 2007
Prior Injuries and Medical Conditions
15 The Plaintiff suffered appendicitis in Primary School. Following a motor vehicle accident as a teenager he had four stitches to his top right shoulder blade on his back.
16 On 6 March 1999 he suffered a cerebral aneurysm after which he took 5½ months off work and suffered short-term memory loss, for which he undertook rehabilitation sessions. At this time, he was still employed with Robroad.[4]
[4] PCB 22 para 18
17 In approximately August 2000, he suffered a second cerebral aneurysm in the same area as his first one.[5] After the operation, he returned straight back to work at Robroad.
[5] PCB 22 para 19
18 Subsequently, he received stitches to the head following a physical assault at a pub.
19 Under cross examination the Plaintiff also confirmed that he suffered occasional back pain and sciatica since his operation for the aneurism; and has undergone decompression surgery for his left elbow.[6]
[6] Transcript 28
Workplace Accident
20 On 18 March 2008 during the course of his employment with the first Defendant he was unloading two new forklifts at Nufarm. The sales representative (Craig Martin) for United Equipment was helping him. Together they started removing the first forklift from the truck. Craig Martin reversed the forklift back to take the pressure off the chain. The Plaintiff then told him to stop. Martin stopped, and while the Plaintiff went to take the chain out off the floor of the truck, without warning, Martin took his foot off the brake, and at this point, the Plaintiff’s finger was caught between the chain and the floor of the truck. Due to the pressure, the top part of his left index finger was severed. The end of his finger remained in the glove in what was a very traumatic accident for him.[7]
[7] see Investigation Report 19/03/2008; PCB 88-89.
Immediate Treatment and First Surgery
21 The Plaintiff was taken to Sunshine Hospital by Nufarm's Medical Nurse where under general anaesthetic the left index finger was debrided, termalised and covered with skin graft taken from the Plaintiff’s left arm. The surgery was performed by Mr Mark Baldwin[8] and the Plaintiff was discharged the same day.
[8] Refer also report of Prof. Ian Brand Medical Administrator PCB 44-45
22 On 20 March 2008 the Plaintiff attended the outpatient department complaining of bleeding from the donor site. Upon review it was noted to have healed well and was cleaned without action. The graft had also taken well. The Plaintiff told medical staff that he was leaving for Queensland in a few days.
23 The Plaintiff attended for hand therapy on eight occasions between 10 April, and 3 July 2008. He complained of finger stiffness, tingling in the finger, which woke him at night and he was unable to flex the distal interphalangeal joint. There was also discussion as to whether such finger should be amputated.[9]
[9] see reports PCB 44-45 and 50
24 When seen on 7 July 2008 it was noted that:
… He was more comfortable and had desensitised well. The finger was healing well and the nail is growing back but because it was stiff it was difficult to grip chains etc at work…[10]
[10] PCB 45 per Prof Brand
25 The Plaintiff continued to be seen monthly in the Outpatient Department between July and November 2008.
Second Surgery
26 On 2 April 2009, he underwent further surgery comprising a partial amputation of his left index finger being an amputation of the distal phalanx, to the level of the middle phalanx[11] because the knuckle had seized up and it did not have any movement.
[11] PCB 48
27 The Plaintiff underwent rehabilitation for 6 weeks with a hand therapist located at the Sunshine Hospital, in order to get him used to how it will feel without that top part of his finger.
Return to Work
28 On 5 May 2008 the Plaintiff returned back to United Equipment as a Transport Manager for approximately 6 months, but on light duties only, which included forklift stock take and transport allocation. On 3 October 2008 he was made redundant, due to the economic situation.
29 On 6 October 2008, he gained employment with Tip Top as a bread delivery truck driver. He told Dr Elder that he had some difficulty with the manual handling requirements such as picking up the loaves of bread in their packages as well as in the baskets.[12] In oral evidence he clarified that he could only pick up 3 loaves instead of the 4 loaves he could handle prior to his injury. Otherwise, the Plaintiff describes manual duties similar to his pre-injury duties.[13] The Plaintiff remained with Tip Top for somewhere between three and seven months.[14]
[12] PCB 71
[13] PCB 21 para 11 cf 23 para 23
[14] Periods of 3, 6 and 7 months are given in the medical histories: PCB 21 para 11 and 34 para 34; PCB 78 and DCB 23
30 The Plaintiff then commenced employment with Allied Towing as a Dispatch Manager on a full time basis. His duties include: allocating trucks to jobs and moving access equipment and earth moving equipment. He is still currently employed there working at least 70 hours per week. He confirmed that his income has increased since the workplace injury.[15]
[15] Transcript 24-25
Consequences of the Injury
31 Since the workplace accident, the Plaintiff says that the injury and its consequences have affected his ability to undertake his pre accident activities in the following way:
a) There is now a loss of strength in his left hand;
b) The stump of his left index finger is highly sensitive and often feels cold. If he knocks the stump of his left index finger the extreme pain is such that: I "jump through the roof”
c) He suffers a phantom itch which occurs approximately twice each day when he has the sensation of needing to scratch where the tip of his finger used to be. 32 In relation to his truck driving, he has to secure the whole piece of equipment on to the tray of the truck, loading and unloading. This affects his left index finger in a number of ways: with loose chains, the chain flicks around and hits his hand all the time; he has limited amount of pressure on grip when trying to secure the load and when manoeuvring items around on the tray of the truck.[16]
[16] Transcript 7
I take a lot longer now, hence I've moved up to a bigger truck which means the bigger the gear you take your time and that you're allowed a lot more time to load and unload and that’s helped me keep my position where we are, anyway…
33 The Plaintiff is not working longer hours than he used to:
… we work long hours anyway but I work a bit slower than other guys
who have been employed for about the same time.[17]
[17] Transcript 34-35
34 In relation to domestic duties, he cannot undertake normal domestic duties such as holding clothes pegs, as the top of his finger is missing to hold the peg open. In terms of using cutlery, he has difficulty holding a fork in his left hand.
35 He suffers difficulties with a wide variety of fine manipulative tasks involving the use of his left hand for example when dressing he has difficulty doing up buttons or trying to tie up a tie.
36 The Plaintiff has 2 children, one son who is 16 but who lives with his previous partner, and one 5 year old to his present partner. He cannot play building blocks with him; and he cannot teach him to hold a knife and fork properly for his etiquette skills as when he holds his knife down to provide pressure with his third finger his son copies him.
37 In relation to recreational activities, the Plaintiff used to engage in golf; fishing an motor cycle riding in a very active way.
38 He used to enjoy playing golf regularly every 3 weeks and was a member of IGAV Golf Club. Since his accident he tried to return to golf but found that he could not hold the golf club, as he could not grip his hand around the club. He found it frustrating that his altered grip meant that he was unable to play as he had before and his handicap was blowing out. As a result he gave up golf with IGAV, has sold his clubs and has not played golf for about 18 months.
39 He used to love to go fishing in his boat nearly every weekend. Now, he can barely go fishing, as he is unable to hold the fishing line in place or feel when a fish is biting.[18] He also has difficulty tying knots and overall his fishing activities have significantly reduced.
[18] Transcript 32
40 He rides a motorbike but now does so with difficulties. His reduced hand strength means that he has trouble holding the clutch with his left index finger. As a consequence there is an increased tendency to stall the bike when taking off at lights. He used to ride the bike most weekends and will now do so only every couple of months.
41 He also finds it extremely difficult to work on his car and his motorbike. He cannot perform the simple task of holding a screw with his left hand while holding a drill in his right hand.
42 He refrains from doing a range of tasks for fear of knocking his index finger which causes severe pain.
…it's household things, like household maintenance and that sort of stuff, to hold nails and screws or do all those handyman sort of things. I've now go to get someone in to do some of the more difficult ones that I can't physically do any more, that I used to be able to do - motor mechanic sort of stuff. I've now got to pay someone to do that sort of thing because I can't do the finer things on my motorbike now or on the car or on the boat motor, to service my boat motor and that sort of stuff, I've now got to take it to pay someone to service that sort of thing, yes.
43 In relation to garment construction, he now finds it extremely hard to sew freehand owing to restrictions of sensitivity in holding small and delicate objects and general sewing requirements. Simple things like threading the sewing machine has been made extremely difficult. As a consequence he gets frustrated and cannot enjoy the work he needs to do.
44 When attending a hand therapist on 1 September 2008 the Plaintiff completed a questionnaire headed “The Upper Extremity Functional Index”[19] in which he indicted that he had extreme difficulty or was unable to perform any of his usual work or housework activities; had moderate difficulty performing his usual hobbies, recreational or sporting activities; and had a little or no difficulty performing a range of other tasks. In evidence he clarified that the tasks which he could perform were ones he would normally perform with his right hand.
[19] Exhibit 1
45 He has been prescribed antidepressants for the last 2 months, by his family doctor to relieve some of the anger issues he was facing and the short tempers. Since taking them he feels great.
46 His injuries and its consequences have seriously affected his capacity for work and social life and he believes that this situation will persist into the future and probably become worse.
The Medical Evidence
47 Mr Anthony McDonald Plastic and Reconstructive Surgeon assessed the Plaintiff on 1 August 2008 or about 4½ months after his initial surgery upon referral by his general practitioner. At this stage Mr McDonald noted:[20]
[20] PCB 50
The main issue for him now is the stiffness. He finds the finger often gets in the way. The pain is more of a minor issue. He has received hand therapy at Sunshine Hospital though they feel they cannot offer him anything more.
48 Mr McDonald further noted that the fingertip has healed well, the scar tissue was still reasonably mature, he had moderate swelling of the entire digit and the tip did not appear particularly sensitive. The active and passive range of movement was limited. Further hand therapy will improve function although he may not develop much movement. However…
distal amputation would leave him with worse problems than he has
already.
49 On 11 June 2009 Dr David Elder Occupational Physician examined the Plaintiff for WorkCover and his report includes the following history and assessment:[21]
[21] PCB 70-72
a) The Plaintiff had assessed 17% loss of strength in his left hand;
b) He was unable to hold nails and had difficulties doing up nuts;
c)
He had a well healed scar at the end of the stump of which he has no sensation;
d) He has a decreased range of motion;
e) 12% whole person impairment; and
f) He reported no significant pain in the finger. 50 On 25 February 2010 Dr Clayton Thomas Consultant in Rehabilitation and Pain Medicine examined the Plaintiff at the request of his solicitors. The Plaintiff reported the following ongoing problems:[22]
[22] PCB 67-69
(a) loss of strength; (ii) difficulty with some domestic tasks and fine manipulative skills; (iii) not able to hold fishing line in left hand, feed out the fishing line and feel the tension of the line; (iv) had been a keen weekend golfer but his golf handicap had gone out from 19 to 22 and his left hand grip was not the same as he cannot grip club properly; (vi) lacks sensitivity at the top of stump; (i) has difficulty manipulating bolts and small objects and holding screws which makes working on his car and motor bike difficult; and (ii) has pins and needles in the tip of his left index finger. 51 Dr Thomas concluded that:[23]
[23] PCB 69
The nature of the injury is certainly more significant for someone who works in a manual capacity and therefore requires full use of both hands. Nonetheless over time he has made a number of adjustments to the way he functions and has learnt to compensate. There are still however, residual aspects which are very frustrating and disabling for him, in particular, fine motor activities involving the use of the index finger and thumb in view of the hypersensitivity and loss of sensation to the distal skin area of the amputated stump of the index finger and is not able to use this and must compensate by the use of his middle finger when possible, but still the index finger does tend to get in the way…
52 Dr David Walder is the Plaintiff’s treating general practitioner. He provided a number of reports.[24] The Plaintiff last attended at Dr Walder’s Clinic in March 2010. In his most recent report dated 18 March 2011 Dr Walder states that the amputation:
[24] PCB 46-49(b)
… Has provided him with some disability with regards to his work, social and domestic lifestyle… When last seen [he] was employed as a truck driver where the partial amputation may have caused him to suffer from pain when knocking the finger during the course of his work both within driving and managing the delivery… In the social arena this may well have impaired on Mr Foley's ability to perform certain tasks and in particular he will have some disability with regards to tasks such as keyboard operating and the use of his left hand for manual tasks. From a domestic point of view Mr Foley's injury may cause him embarrassment and difficulty with domestic and personal lifestyle.[25]
[25] PCB 49(a)
53 On 22 March 2010 Mr Murray Stapleton, Plastic and Hand Surgeon – examined the Plaintiff at the request of the Defendant’s solicitors and noted the following history and assessment:[26]
[26] DCB 17-19)
a) Much more awkward in picking up small objects;
b) Amputation stump was tender and he has sensory loss; and
c) Power grip of left hand is diminished. Has difficulty holding golf clubs; 54 Mr Stapleton found the Plaintiff to be genuine and not exhibiting any functional component. He will always have problems with some manual tasks.
His capacity for work is that manual work such as dogging down a load with chains will be a problem for him, probably always, but he is now driving a tilt truck delivering earthmoving equipment and he finds his current job can be performed without significant difficulties entailed.[27]
[27] DCB 19
55 On 25 October 2010 Mr Behan Plastic and Reconstructive Surgeon examined the Plaintiff at the request of his solicitors and noted the following history and assessment.[28]
[28] PCB 51-66)
a) has hypersensitivity at the distal pulp tip; b) loss of 1½ phalanges of left index finger;
c) loss of tripod grip between left thumb, index stump and middle finger; d)
difficulty performing specific tasks such as holding a fork or pen; doing a buttons;
e) has returned to full time unrestricted work activity as a truck driver;
f) still enjoys fishing, with difficulty; g) has problems performing normal maintenance household tasks; and
h) no further improvement anticipated.56 On 8 September 2010 Dr Paul Kornan Forensic Psychiatrist examined the Plaintiff at the request of his solicitors. Although the Plaintiff does not now rely upon a psychiatric impairment Dr Kornan’s assessment throws light upon the physical consequences for him. In his conclusion he states in part:[29]
[29] PCB 84
the loss of a finger has particularly affected him… Because it relives his own father's situation of losing toes and fingers [owing to a rare leukaemia]. … In particular, his personality type, of being someone who is basically a hands on individual with family interests in doing things with his hands, as well as sporting interests, that he would be particularly affected by this hand injury… There has been some loss of capacity to work… His social functioning has been noticeably affected and the domestic situation has also been noticeably tense because of Mr Foley having significant frustration irritability and depression.
57 Dr Kornan recommended continuation of his present antidepressant medication.
58 On 11 November 2010 Dr Nigel Strauss, Psychiatrist examined the Plaintiff at the request of the Defendant’s solicitors and noted the following opinion:[30]
[30] DCB 20-28)
… He is back working as a truck driver but he uses modified equipment. The finger remains sensitive and somewhat weak and his left wrist is weak. There are certain things that are more difficult for him to do and this has caused him some frustration and despondency… Antidepressants …have helped… Nevertheless he still suffers from some intermittent symptoms of anxiety and depression and certainly some post-dramatic stress symptoms…
He is capable of normal employment although obviously from a physical point of view there are some modifications to equipment required… He has a reasonable capacity for work… He will need to take antidepressants for at least another year or two but does not require any psychological or psychiatric treatment.[31]
[31] DCB 27
Relevant Statutory Provisions and Case Law
59 This application falls to be determined in accordance with Section 134AB of the Act. Sub-section 134AB(2) prescribes the conditions which must be satisfied before a compensable injury may give rise to an entitlement to recover damages:
(2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arose on or after 20 October 1999.”[32] [32] By Act No. 95/2003 s.3(8) the words “employment of that nature was a significant contributing factor, and” were omitted from sub-section 134AB(2) as from 3 December 2003, which was before the injury relied upon by the Plaintiff in this case.
60 For the purpose of the current application “serious injury” means:
(a) permanent serious impairment or loss of a body function33 61 Section 134AB (38)(b), so far as it is relevant to the present case, sets out what must be shown in order to establish that impairment or loss of a body function [under paragraph (a) of the definition] is “serious”. It does this by reference only to the consequences to a worker.
(38) For the purposes of the assessment of “serious injury” in accordance
with the sub-sections (16) and (19)-(b) the terms ‘serious’ and ‘severe’ are to be satisfied by reference to the consequences to the worker of any… impairment or loss of a body function… with respect to- (i) pain and suffering; …
when judged by comparison with other cases in the range of
possible… … impairments or losses of a body function ….
62 Section 134AB (38)(c) provides, so far as it is relevant to this case, as follows:
(c)
an impairment or loss of a body function … shall not be held to be serious for the purposes of sub-section (16) unless the pain and suffering consequence … is, 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;
63 The physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury.34
64 Accordingly, the question to be determined in this case is whether the Plaintiff’s pain and suffering consequences, when judged by a comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than significant or marked and as being at least very considerable.
65 I must assess the consequences in terms of pain and suffering which the Plaintiff’s injury has occasioned to him, and determine where the facts of this case sit in the broad spectrum of cases. This task involves “a value judgment in which matters of fact and degree, and of impression, are operative”.35 I must also take into account:
“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of the consequences, may be informed, to some extent, by what is retained.”36
66 In Haden Engineering Pty Ltd v McKinnon37 Maxwell P. undertook a useful analysis of the kinds of considerations to which judges have routinely had regard when considering pain and suffering consequences. His Honour
Section 134AB (37)
section 134AB(38)(h)
Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
[2010] VSCA 69 @ paras 9-17; cited with approval in Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ paras 46-50
pointed out that the following summary was intended to be more descriptive
than prescriptive.
Evaluating the “pain and suffering consequence”
[T]he "pain and suffering consequence" of an injury encompasses both the Plaintiff's experience of pain as such and the disabling effect of the pain on the Plaintiff's physical capabilities (including capacity for work) and enjoyment of life ...
The experience of pain
As to the experience of pain as such, the Court must assess the intensity of the pain which the Plaintiff experiences. For this purpose, pain intensity is often classified on the scale "mild/moderate/severe". Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the
following:
(a) what the Plaintiff says about the pain (both in court and to doctors); (b) what the Plaintiff does about the pain (eg medication, rest, seeking medical treatment); (c) what the doctors say about the extent and intensity of the Plaintiff's pain; and (d) what the objective evidence shows about the disabling effect of the pain.
67 Maxwell P pointed out that the first evidentiary basis will turn on an assessment of a Plaintiff's credit. He said:13
As to (a), 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. The Court will make its own assessment of the Plaintiff's credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the Plaintiff's accounts of pain.
68 His Honour recognized that an assessment of the fourth evidentiary basis must be tempered by an understanding of the effect of stoicism. Maxwell P observed:[38]
[38] Approving what was said in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 by Nettle JA
As to (d), the cases recognise that some Plaintiffs may be more "stoical" than others. This means that such a Plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the "stoical" Plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the "objective" evidence of the disabling effect may be of less significance than usual.
69 To identify the disabling effect of pain requires an understanding both of a Plaintiff's pre-injury and post-injury employment and activities, although this does not amount to a simple comparison.[39] As Maxwell P explained:
[39] Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ para 49
The disabling effect of pain
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the Plaintiff's physical functioning, and interferes with the Plaintiff's enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): " ... [I]mpairment is concerned with what has been lost. But the significance of what has been lost ... may be informed, to an extent, by what is retained."
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 to the extent to which "an area of work which [the Plaintiff] enjoyed has been closed off to [him or her]."
70 Assessing loss of enjoyment of life, in a broad sense, requires an understanding of the effect of the impairment upon numerous aspects of a Plaintiff's daily life and activities.[40] In this respect, Maxwell P said:16
[40] Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ para 50
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the Plaintiff's:
• sleep; • mobility; •
cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management; • performance of household and family duties; • recreational activities; • social activities; • sexual life; and • enjoyment of life. Whether and to what extent the matters listed are relevant to the court's task in a particular case will, naturally, depend on the circumstances of the case.
When judging the pain and suffering consequences for the Plaintiff by comparison with other cases, it is relevant to look at the Plaintiff’s life expectancy in order to determine the likely period for which those consequences will be experienced.
71 I will be guided by these principles.
Defendant’s Final Submissions
72 Counsel referred to the following circumstances:
a) The Plaintiff last attended a hospital outpatient appointment in relation to his left hand on 6 November 2008; b) The clinical notes of his general practitioner indicate numerous attendances about other complaints, without mention of his left hand, in particular backache across the lower thoracic region and left ulnar neuropathy; c) The Plaintiff concedes that he does not experience constant pain; d) The Plaintiff’s gross post injury earnings have increased;[41]
[41] DCB 85
e)
On 13 July 2009 the clinical notes of his general practitioner refer to a history of depression for 2 years, which would predate the injury. Antidepressant medication appears to have been first prescribed in August 2009; and
f)
Apart from antidepressant medication, the Plaintiff has required no ongoing treatment to his finger or hand;
73 Defendant’s Counsel also referred me to three particular decisions of this Court which also concerned injuries to the non dominant hand.[42] I note that while there are certain similarities in the present case and the circumstances of each of these Plaintiffs, significantly there are also matters of relevant distinction which I will endeavour to indentify below.
[42] McCann v Bonlac Foods Ltd [2005] VCC 497 Wodak J; Balcar v Tenix Defence Pty Ltd [2010] VCC Saccardo J; and Reeve v Jelena Hall Pty Ltd [2010] VCC 1471 SaccardoJ.
Analysis of the Evidence and Findings
74 I have set out above a brief synopsis of evidence and submissions of Counsel. However, my findings and reasons for judgement have only been determined after careful re-reading of the whole transcript of evidence and tendered documents.
75 I am satisfied that the medical reports are essentially consistent in terms of the history taken; results of medical examinations; description of the injury; surgical treatment; and prognosis for the future.
76 I am satisfied from all medical reports and confirmed by the oral evidence of the Plaintiff that he has been a co-operative and responsive patient who has endeavoured to return to work full time as soon as practicable and has attempted to pursue his normal domestic, social and sporting activities with limited success.
77 In his evidence before the Court I am satisfied that the Plaintiff presented in a frank and considered manner without apparently embellishing his physical difficulties or minimising his accomplishments.
78 I am further satisfied that the medical opinions have not questioned or in any way doubted the accounts given by the Plaintiff as to his current limitations and circumstances which precipitate his experience of pain. The Plaintiff appears to have been accepted as a reliable historian and genuine in any complaints.
79 I turn now to consider the questions as formulated by the Court of Appeal in the Barwon Spinners & Other Cases, noting that the first and second questions were essentially not in dispute in this case:
80 First, what is the injury and what is the impairment said to be produced in consequence?
81 The Plaintiff suffered a traumatic crush injury to his left index finger resulting to two surgical procedures which has left him with an amputated left index to the extent of 1½ phalanges.
82 The consequent impairment and loss of function to the left hand is described in detail in various medical records and the Plaintiff’s evidence.
83 Secondly, is the impairment permanent, i.e., likely to last for the foreseeable future?
84 In my view the evidence readily supports a conclusion that the impairment suffered by the Plaintiff is permanent for the purposes of the Act.
85 Thirdly, are the consequences for the Plaintiff such as to satisfy the “very considerable” test?
86 I specifically state that, consistent with section 134AB(38)(h) I have only taken into account pain and suffering from the organic injury to the Plaintiff’s left hand.
Application under paragraph (a) permanent serious impairment:
87 It is self evident that the Plaintiff suffered a particularly traumatic injury to his left index finger. Equally, it is apparent that the injury and impairment has now stabilised and he has apparently adapted to his limitations probably to the maximum extent possible in the circumstances. He has continued to maintain full time employment, albeit with certain difficulties and risk of occasional excruciating pain. His social, domestic and recreational pursuits have variously suffered restrictions and limitations.
88 I must determine whether the restrictions and limitations with respect to pain and suffering to which the Plaintiff is now and will remain subject, constitute a consequence which can be fairly described as being more than significant or marked, and as being at least very considerable when judged by comparison with other cases in the range of possible impairments… In my view, taking the evidence as a whole, they can be so described.
89 It is appropriate at this point to recall the qualification to serious injury which was made in Humphries v Poljak. To be “serious” the consequences of the injury must be serious to the particular applicant.[43] Accordingly, the same consequences can assume a markedly different significance from one applicant to another depending upon such factors as age, prior state of health and level of activities.
[43] Crockett and Southwell JJ @ 140
90 Accordingly, it is appropriate to identify circumstances pertaining to the Plaintiff immediately prior to his injury which were of particular importance to his capacity to enjoy life. In summary, the following circumstances of the Plaintiff assume particular importance:
• he was a healthy male in early middle age with no physical injuries or ailments which affected his capacity to perform his employment or domestic duties or pursue his major recreational interests; • he was a qualified tradesperson who had always exercised his training and expertise primarily through the use of his hands; and • his recreational activities were all directed at outdoor pursuits for which the unrestricted use of the hands generally was of paramount importance. 91 In the context of the Plaintiff’s pre-injury circumstances, permanent impairment to the Plaintiff’s left hand is a potentially very significant consequence.
92 I accept the evidence of the Plaintiff as confirmed by medical opinions that in broad terms the impairment to his left hand carries the following features:
• he has permanent sensory deficit to his left index finger; • he has hypersensitivity of the tip of his left index finger; • his grip strength in his left hand is now appreciably reduced; • he has limitations manipulating small objects and in handling fine procedures; and • he has limitations handling small tools, which assumes a greater significance for a male who has primarily worked with his hands. 93 In the course of the proceeding, Defendant’s Counsel focused upon the absence of certain features which he submitted are ordinarily the indicia of a serious injury:
94 First, Counsel pointed to the fact that the Plaintiff had not complained of any pain or restriction to activities in his left hand when he had attended medical practitioners for treatment for conditions which included, amongst other things, lower back pain and ulnar pain. It was submitted that this lack of complaint should be used by me to make a finding either adverse to the Plaintiff’s credit, or to the effect that the symptoms of which the Plaintiff complained in his left hand were not so severe that they warranted treatment.
95 I do not find this submission to be at all persuasive, given:
a)
the circumstances which generally gave rise to those presentations, namely, the occasioning of an acute injury; and
b)
the Plaintiff’s evidence, which I accept, that in the context of the advice given to him by his treating surgeon and general practitioner, he considered that he had no further treatment options.
96 Secondly, Defendant’s Counsel referred to the absence of any treatment since his second surgery, or ongoing medication save for antidepressant medication. In my view, again this is hardly surprising given the nature of the injury. It is accepted that the surgical procedures have been successful, the wound has healed and there is no more treatment which was envisaged by his treating doctors.
97 Thirdly, Defendant’s Counsel referred to the absence of constant pain, identified by Maxwell P. in Haden Engineering as one of the key factors to be taken into account.. The Plaintiff readily acknowledged that he does not experience constant pain or indeed any pain as long as he can avoid any physical impact upon the stump of his left index finger.
98 While the lack of any constant or regular pain is an important factor to take into account, nevertheless, the Plaintiff has to be extremely vigilant in his daily work routine to avoid physical impact upon the stump of his left index finger. When he fails to do so he experiences excruciating pain. In my view this is a very serious consequence for him in maintaining full time employment and otherwise impacts upon his daily life outside of the workplace.
99 Fourthly, Defendant’s Counsel impressed upon the Court that the Plaintiff had largely resumed his pre injury activities, including full time employment and that this outcome was inconsistent with the very considerable test.
100 However, in my view, the extent and significance of the consequences to the Plaintiff only becomes apparent from a closer analysis of the detailed impact of his impaired left hand.
101 I accept the Plaintiff’s evidence of the impact of his shortened left index finger and consequent dysfunctional left hand upon a range of everyday activities. He does not deny that he can perform most activities, but he can only do so at the expense of some difficulty, pain and/or frustration and often only at a slower pace. Sometimes the difficulty is great and sometimes the pain can be at least momentarily excruciating.
102 The impact of the Plaintiff’s impairment upon each individual activity is not debilitating in itself and indeed in many circumstances may be described as an inconvenience or interference. However, it is the accumulative effect of using such an impaired hand, particularly in the context of his employment, which creates an overall consequence as to pain and suffering which is more than significant or marked and at least very considerable when judged by comparison with other cases in the range of possible impairments.
103 In particular, I accept that the evidence attests to a continuously problematic left hand. I accept the Plaintiff’s evidence to the effect that the tip of his left index stump is now hyper-sensitive. This factor coupled with the limitations in finger movement and the appreciably reduced strength and grip capacity of his left hand potentially impacts to varying degrees, upon every task undertaken with that hand.
104 The Plaintiff referred to a range of simple everyday tasks which he could accomplish only with difficulty and associated frustration. I would envisage that this list is far from exhaustive. I accept that there are a range of activities which the Plaintiff will not undertake at all either because he cannot manage them satisfactorily or because of the fear or risk of hitting the hypersensitive stump of his finger. Accordingly, the Plaintiff now has to pay tradespeople to perform tasks which he would have previously performed himself.
105 He is right hand dominant and many pre injury tasks are unaffected to the extent that he can rely upon his right hand alone. However, the impact of restricted use of his left hand, for an essentially manual worker, is far more serious than for a worker whose job is primarily sedentary and does not rely upon frequent manual handling.
106 I also accept that the difficulties which the Plaintiff describes impacts more gravely upon him by reason that he is still in early middle age; his pre injury work and recreational activities were manually based; and he seeks to perform a normal parenting role to a teenager and young child.
107 Medical opinion confirms that the Plaintiff’s condition has stabilised and there is no suggestion that his current difficulties and symptoms may improve at any stage in the future. The extent to which he has adjusted the use of his left hand and compensated by over use of his right hand merely highlights the constant and ongoing difficulties with which he is confronted.
108 In relation to recreational activities, the Plaintiff has had to abandon his principal activity being golf and has severely curtailed both fishing and use of his motor cycle, each of which cause him difficulty with consequent loss of enjoyment. In the case of his motor cycle he also expressed safety concerns.
109 I find that the Plaintiff has suffered an injury to her left index finger as a result of his employment with the Defendant and I am satisfied on the balance of probabilities that the consequent impairment to the left hand is both serious and long term within the meaning of paragraph (a) of the definition of serious injury of the Act. Accordingly, I am persuaded that the injury suffered is a “serious injury” within the meaning of the Act.
Orders 110
The Plaintiff is granted leave pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985, to commence common law proceedings for the recovery of damages for pain and suffering only in respect of injury to his left index finger, arising out of, or in the course of, or due to the nature of, employment with the Defendant on 18 March 2008, relying upon paragraph (a) of the definition of serious injury.
111
After hearing the parties on the question of costs the following orders were made:
1. Order that the Defendant pay the Plaintiff’s costs of the proceeding, including reserve costs, on County Court Scale D to be taxed in default of agreement;
2. Certify for:
a) Two Counsel for the Plaintiff;
b)
Senior Counsel’s brief fee of $550; plus two hours of special conference @ $550 per hour;
c)
Junior Counsel’s brief fee on scale plus two hours of special conference on scale;
d) Junior Counsel to take judgement; and
e) The reasonable costs of the preparation, filing and service of court books, the first copy at scale and each subsequent necessary copy at the commercial printing rate determined by the Costs Court, including any necessary attendances.
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