Forsyth v RLA Polymers Pty Ltd

[2013] VCC 1777

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION  Revised
Not Restricted
Suitable for Publication

Case No. CI-12-02778

James Freeburn Forsyth	Plaintiff
V
RLA Polymers Pty Ltd	Defendant

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JUDGE:

S. Davis

WHERE HELD:

Melbourne

DATE OF HEARING:

18 November 2013

DATE OF JUDGMENT:

DATE OF WRITTEN JUDGMENT:

Judgement (with oral reasons) 18 November 2013

19 November 2013

CASE MAY BE CITED AS:

Forsyth v RLA Polymers Pty Ltd

MEDIUM NEUTRAL CITATION:

[2013] VCC 1777

REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – injury to the hands – pain and suffering - range                   
Legislation Cited: Accident Compensation Act 1985 (Vic)
Judgment: Leave granted to the plaintiff               

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Hill	Slater & Gordon
For the Defendant	Mr N. Dunstan	Thomsons Lawyers

HER HONOUR:

1 Mr Forsyth is 61 years old and applies under s134AB(16)(b) of the Accident Compensation Act 1985 for leave to issue proceedings for the recovery of damages for pain and suffering only in respect of industrial dermatitis in both hands arising from his work for the defendant as a chemical blender between 2003 and 2005.

2 The parties agree that the injury to the hands has given rise to a permanent impairment of the function of the hands, that of chronic contact irritant dermatitis. I note that Dr Segal concluded that the condition was permanent based on the fact that signs and symptoms of the skin disorder are present, there is limitation of the performance of some of the activities of daily living,[1] and physical agents could increase the limitation temporarily and intermittent treatment is required.

[1]See Defendant’s Court Book (DCB) 16

The issues

3       The only issue between the parties is that of range. Mr Forsyth’s account of his condition and its consequences was largely unchallenged, apart from the details of his medical treatment from his general practitioner, Dr Sharon Kumar, and his attendances on her since early 2005. According to the defendant, Dr Kumar’s clinical notes for the period 2005 to 2013 contain only seven consultations which expressly record Mr Forsyth’s hand condition as the reason for the visit. On the other hand, the defendant concedes that on a number of other consultations between these dates, Dr Kumar provided a prescription for Celestone cream which, along with Prednisolone, Mr Forsyth uses to manage his condition. Mr Forsyth’s unchallenged evidence was that whenever he attended the doctor, she would ask about his hands, and he would obtain scripts for Celestone cream and/or Predinosone if he needed them. He said that he would obtain scripts for two tubes of celestone cream at a time, and that these would last him around seven months.

4       The defendant relies on the report of Dr Alan Segal dated 27 January 2011[2] which states that the plaintiff has a “mild ongoing eczematous problem on his hands that intermittently needs moderately aggressive treatment to bring it under reasonable control and the ongoing use of topical corticosteroids,” and that when the flare up has “somewhat subsided” it is “about 40 to 50% of its maximum severity.” The flare ups occur about every two months and last about two weeks, and require the use of a strong topical corticosteroid cream and a short course of oral prednisolone.

[2]DCB 14

5       Dr Segal noted that Mr Forsyth was playing occasional golf and occasionally did weekend gardening and did not feel these activities made his condition worse. He noted that the main disability was the embarrassment from the small blisters on his hands. He noted that the condition “does not appear to interfere greatly with his activities of daily living”.[3] I will return to this aspect shortly as the plaintiff’s evidence is to very different effect.  

[3]DCB 15

6       The defendant submits that the plaintiff has a mild condition, is getting minimal treatment, manages his condition himself with creams and steroids, but otherwise requires no referrals for specialist treatment. He still works full time albeit in a different job. Even the serious flare ups he experiences do not appear to warrant trips to the doctor or further referrals to specialists. On this basis, it was submitted, the pain and suffering consequences of his permanent impairment are not more than considerable when compared with other cases in the range of permanent impairments.

The hearing

7       The plaintiff gave evidence at the hearing and was cross-examined. There were no other witnesses. The parties each tendered a court book and I have considered all the material relied upon by them. In addition, I inspected the plaintiff’s hands during the course of the hearing, as did counsel.

Plaintiff’s evidence

8       The plaintiff’s history and treatment may be briefly summarised.

9       He is 61 years old, was educated to Year 10 in Scotland, and then worked there as a chemical blender between 1968 and 1993. He migrated to Australia in 1993 and continued working as a chemical blender until he started work for the defendant in June 2003, also as a chemical blender. In late 2004 he suffered itchy, red, blistered hands, along with cracking and bleeding of the hands, and was treated with sigmacourt cream by his general practitioner, Dr Sharon Kumar. He was referred to a number of dermatologists including Dr Ronald Rosanove in February 2005, Dr Peter Fergin in May 2005 and Dr Rosemary Nixon in June 2005. Dr Nixon concluded that the plaintiff had suffered a contact irritant dermatitis as a result of his work for the defendant. None of these specialists have seen the plaintiff since 2005. He had time off work due to his symptoms in early 2005, but symptoms continued to recur and later in 2005 he left his job with the defendant and commenced working for Sunrise Carpets, on the production line, where he presses buttons to operate machines which stretch carpets.

10      His current treating doctor, Dr Kumar, provided reports dated 14 July 2010 and 26 November 2012.[4]  The second report notes that when the plaintiff has flare ups of his dermatitis, he uses diprosone and celestone creams as required, but when his symptoms are really bad he has to go on oral prednisolone. She noted that he began taking antidepressants in August 2012 “as his recurring symptoms were making him depressed and frustrated”.[5]  She stated that he had seen specialists in the past who had not recommended anything apart from his current management plan, and that the plaintiff was currently managing his dermatitis as required.

[4]See Plaintiff’s Court Book (PCB) 33 and 36

[5]PCB 36

11      The plaintiff’s evidence concerning the consequences of his skin condition may be briefly summarised. Firstly, the condition upsets him and contributes to a loss of enjoyment of life for a number of reasons. For years prior to his injury he had intended to change directions and to practise Reiki and massage therapies. To this end, he qualified as a Reiki Master in about 1998 and later completed a TAFE course in massage and aromatherapy. He also registered a business name for this future venture. He performed some casual Reiki therapy at home. However, due to his condition he cannot perform massage or Reiki. His hands are very sensitive to heat, often look unsightly, and when he suffers a flare up they sometimes blister and bleed. He is upset that this alternative work avenue has been cut off to him. At work, he works alone and does not suffer embarrassment but if required to help other staff with other duties, such as with the bobbins or doing manual work, his hands start to tear and bleed.

12      He has trouble gripping things and can no longer play golf. He last played five years ago and his hands blistered very quickly. He has given up his club membership. Even when he is not suffering an exacerbation, as was the case today, he said that the skin on his hands at best is dry, cracked and tender. Further, his hands hurt when he tries to bend his fingers or to stretch out his hand or to grip things. The skin on his hands has been thinned by the daily use of cortisone cream and his hands hurt in sunlight or even in warm water. His hands have a rough texture and this interferes with his physical intimacy with his wife. It also affects his toileting, as when his hands are dry and flaky the toilet paper catches on them. His finger tips lose feeling. He cannot wear gloves or keep his hands in his pockets as the rubbing can irritate the skin and cause bleeding. He has four grandchildren between the ages of 5 and 13. He cannot play games with his young grandson because he cannot grip or throw a ball or grip a bat. He struggles to pick up his grandchildren. He applies cortisone cream 2-3 times per day, but only one week at a time because it causes the skin to thin. He also uses Kenacomb cream once a day to soothe his itchy and flaky skin. He also uses over the counter moisturiser and moisturising soap.

13      He suffers exacerbations about every six weeks and these take two weeks to resolve. During the periods of exacerbations, his skin cracks, bleeds and peels, and sometimes he gets infections and pustules. His hands catch on fabric and bleed. At these times, he cannot even do up his buttons, wash in hot water, carry bags or hold hot cups. He cannot grip a knife properly. He misses social events because of his embarrassment at how his hands look.

14      He said that he has been to Dr Kumar more than five times in the past two years, but not necessarily just about his hands. He said that whenever he goes to see her she asks about his hands. At some of the consultations she provides him with scripts for Celestone cream or other medication. He insisted that his depression arose from his frustration and unhappiness about his skin condition.  He did not recall any follow up appointments being made for him with Dr Rosanove or Dr Fergin. He said that Dr Rosanove told him how to manage his condition using creams and oral steroids when necessary.

Legal principles

15      In order to make out serious injury within paragraph (a) of the definition in s 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function, and relevantly, that the consequences to him 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 are fairly described as being more than significant or marked and as being at least very considerable.[6] 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.[7] 

[6]Accident Compensation Act 1985 (Vic) s 134AB(38)(c).

[7]Sabo v George Weston Foods [2009] VSCA 242, [66]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [42].

16      On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[8] The ‘pain and suffering consequences’ of an injury encompass 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.[9]

[8]Fleming v Hutchinson (1991) 66 ALJR 211.

[9]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [9]-[12]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [45]-[47] (Tate JA); Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46.

17      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”.[10]

[10]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199] (Dodds-Streeton JA).

18      The whole of the evidence before the court should be considered, not just the medical evidence.[11]

[11]Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, [170].

19      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.[12] 

[12]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

20      Some weight must be given, in considering the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[13] Each case has to be determined in the light of its own facts.[14] 

[13]TAC v Dennis [1998] 1 VR 702, 703 (Callinan J).

[14]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.

21      Overall the Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[15]

[15]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

22      I found the plaintiff to be an understated and cooperative witness who did his best to answer questions concerning the frequency of his attendances upon his doctor in relation to his hand condition. I accept his evidence, and acknowledge his concession that the specific mention in his affidavits of seeing the doctor every four to six weeks or every two months in relation to his hands is not accurate. I accept the balance of his evidence, which was largely unchallenged, as to the pain and suffering consequences of the chronic dermatitis. In particular, I accept his unchallenged evidence to the effect that he suffers exacerbations every six weeks or so which take about two weeks to resolve. I also accept his evidence, which contradicts some of the material in Dr Segal’s report, concerning his ability to play golf, and concerning the extent of the interference by his condition with his activities of daily living and his enjoyment of life. I note that in relation to the frustrations he experienced as a result of his injury to the hands, his evidence is consistent with the content of Dr Kumar’s reports.

23      I had the opportunity of inspecting the plaintiff’s hands during the hearing. I was also assisted by a series of 31 colour photographs taken of the plaintiff’s hands between April and September 2013. These photographs represent the different stages of his dermatitis, from when they are blistered and cracked to when they have recovered from an exacerbation and are just red and dry.

24      Comparing what has been lost with what has been retained results in the following assessment – prior to his injury, he could use his hands in an unrestricted fashion. Further, his hands were not affected by any restrictions in his domestic, occupational, and recreational activities. He could retrain in massage and Reiki therapy and practise Reiki therapy, albeit to a limited extent at that time. As a result of his injury, his life is vastly different in the ways outlined below.  He is upset by these limitations, and clearly has suffered a substantial loss in his enjoyment of life.

25      I consider for the following reasons that the pain and suffering consequences of the impairment of the function of the hands are more than considerable when compared with other cases in the range of permanent impairments.

26      Firstly, the plaintiff had to give up not only his life long occupation as a chemical blender, but also his preferred alternative career in Reiki and massage for which he had trained himself. Secondly, on any view, the interference with his life which he suffers, even when not suffering an exacerbation, is profound. His hands, at best, are dry and flaky, sensitive to heat and to sunlight, unable to be subjected to any rubbing, even against a glove or a pocket, and do not tolerate gripping or repeated handling of objects. They hurt when he tries to bend his fingers or stretch his fingers. They interfere with his basic activities of daily living. The creams which he uses daily contribute to thinning of the skin which also contribute to cracking and bleeding when there is contact with objects. Thirdly, the exacerbations which occur, occur frequently, require intensive treatment with more creams and oral steroid medication, and take two weeks to resolve. This means that every four weeks the plaintiff struggles with a two week cycle of a flare up, in which he cannot do up his buttons, use a knife, pick up hot cups, use toilet paper or really use his hands. His hands also become even more sensitive to heat. There is greater interference with physical intimacy with his wife.

27      Thus the so called “moderately aggressive treatment”[16] referred to by Dr Segal which is required to bring the condition “under reasonable control”[17], is required very frequently – that is, every six weeks or so.

[16]DCB 15

[17]DCB 15

Conclusion

28      Leave is granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering in relation to the injury to the hands suffered during the course of his employment with the defendant. I will hear from counsel on the question of costs.