Fragomeni v Victorian WorkCover Authority
[2017] VCC 1849
•14 December 2017
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-01754
| MATTHEW JAMES FRAGOMENI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KL BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 4 December 2017 | |
DATE OF JUDGMENT: | 14 December 2017 | |
CASE MAY BE CITED AS: | Fragomeni v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1849 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the right dominant hand and fingers – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s134AB(38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Transport Accident Commission & Anor v Dennis (1998) 1 VR 702; Sabo v George Weston Foods [2009] VSCA 242; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment:Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr G Pierorazio | Maddens Lawyers |
| For the Defendant | Mr W R Middleton QC with Ms D Manova | Thomson Geer |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with NBS Crushing Services (“the employer”) on 31 July 2015 (“the said date”).
2 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
3 The body function relied upon in this case is the right dominant hand/fingers.
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
11 The plaintiff relied upon two affidavits and gave viva voce evidence. He also relied upon affidavits sworn by his former partner, Chloe Matthews, on 18 September and 24 October 2017 and his father, Domencio Fragomeni, sworn on 15 August 2017. In addition, both parties relied on medical reports and other material which was tendered in evidence.
The Plaintiff’s evidence
[1] (2005) 14 VR 622
[2] (2006) 14 VR 602
11 The plaintiff is presently aged twenty-five, having been born in April 1992. He grew up in Mildura, where he was educated to Year 11. He then worked in a range of jobs including as a farmhand, supermarket checkout, truck driving and as a machine operator.
12 In 2011, while working for PDF Food Services in Adelaide, the plaintiff injured his right shoulder. He had only a few days off work, with no significant treatment, and believed he recovered from that injury.
13 On 7 March 2012, while working for Warakirri Dairies, the plaintiff suffered a severe injury to his right knee. He underwent several operations. His knee still troubles him, and prevents him being involved in an active sporting life. However, despite that injury, the plaintiff had always been handy around the house. He enjoyed household maintenance and renovations and also looking after his own car.
14 The plaintiff commenced work with the employer in February 2015 as a machine operator and, in particular, an excavator operator loader and dump truck driver. Within three months of commencing this job, he was made supervisor when the supervisor quit.[3]
[3]Transcript (“T”) 16
15 The plaintiff’s usual pre-tax weekly earnings were $1,021.06 per week.[4]
[4]See Claim Form dated 6 August 2015
16 On the said date, the plaintiff was checking for air leaks in the radiator.[5] Whilst holding a radiator hose which was about to be fitted, his right hand was sucked in and he suffered a severe injury to his right hand and thumb by the thermo fan (“the incident”).
[5]T18
17 Following the incident, the plaintiff knew he had suffered a serious injury. He was taken by a co-worker to Werribee Hospital and, subsequently, the Hand Therapy Department at St Vincent’s Hospital.
18 While he was an inpatient at St Vincent’s Hospital, the plaintiff’s wound was washed out and stitched in theatre. He was told to have two weeks off work, but returned to work three days after the incident when he discharged himself. His employer tried to get him to discharge himself when his hand was unstitched but the plaintiff refused.
19 The plaintiff denied he discharged himself out because his hand was feeling good.[6] He did so because his employer harassed him, sending him abusive text messages over the weekend. He told the plaintiff he did not want a loss of time injury, “LTI”, therefore the plaintiff went back to work straight away. He went back because he enjoyed his job, and it was not an LTI, as he went back on the Monday, having suffered injury four days earlier.[7]
[6]T15
[7]T16
20 The plaintiff thought he was reviewed about a week after discharge and then again on 28 August 2015 when his stitches were removed. He was then sent to a hand therapist, who told him to continue his exercises.[8]
[8]T17
21 The plaintiff had bad lacerations and bruising in his thumb, his right forefinger and right index finger. On his return to work, working seven days a week, he had a great deal of difficulty performing a lot of his duties. He had no choice but to go back to work on the same duties. He went back because he was harassed by the employer and was told the site would not run without him.[9]
[9]T28
22 The plaintiff wore a sling on his return to work, so he could only use one arm. He could not do shovelling, other than with his left hand.[10]
[10]T29
23 The plaintiff worked as a supervisor for four weeks. He then returned to working as a machine operator but, again, the change in duties was premature and after about three weeks, he found he could not handle the pressure from his supervisor, and he left the job on 8 October 2015.
24 The plaintiff then worked as a machine operator for Basin Sands Logistics at an iron ore mine in Pooncarie, New South Wales, until about the start of November 2015. In that role, he worked twelve-hour days,[11] fourteen days on and seven days off. He was only there for two stints, working a total of six weeks.[12]
[11]T18
[12]T19
25 The plaintiff returned to work with the employer as a machine operator from about 3 November 2015 until 17 November 2015.
26 Over the following few months, the plaintiff worked for a crane truck hire business and for a trucking firm, until he obtained a job with Eagle Contracting as a truck driver in December 2016. This job as a truck driver was not easy, but the plaintiff had the advantage of working locally. Jobs like tarping were all electrical or power operated.[13]
[13]T19
27 As of December 2016, when he swore his first affidavit, the plaintiff’s hand injury affected him in most activities of his daily life.
28 The plaintiff had difficulty with the following:
·housework
·lifting a bag of groceries to waist level
·lifting a bag of groceries above his head
·combing or brushing his hair
·personal hygiene
·taking any weights on his hands
·preparing food and, in particular, cutting hard vegetables such as pumpkin
·driving – he drove most of the time with the left hand on the steering wheel and the right hand resting in his lap
·dressing, such as tying up laces or doing up buttons, a wide range of tools, opening doors, washing and hanging out clothes and, in particular, opening pegs, opening jars and bottles.
29 The plaintiff was affected in minor activities, such as making the bed, when he got his fingers caught in the sheets as he could not feel them. While having breakfast, he found he could not hold a spoon or fork in his right hand all the time. If he knocked his right hand on anything, the pain could be excruciating.[14]
[14]Confirmed in the plaintiff’s second affidavit
30 The plaintiff enjoyed house maintenance and the fact of being handy. Due to his injury he was unable to help his partner with a lot of the work in the renovation of his house in Adelaide. He was unable to hold a paint brush or roller, and the vibration of power tools caused pain in his hand.[15]
[15]T12
31 Because of his difficulties after the injury, the plaintiff had to pay family and others to come in and do his work on the house for him.[16]
[16]T28
32 The plaintiff could not use his right hand to operate a spray can of deodorant and he had to use scissors to open a packet of cereal.
33 Whereas a lot of the plaintiff’s sporting activities were affected by his knee injury, he still enjoyed doing press ups. He was then unable to put pressure on his fingers and right hand.
34 The plaintiff could drive a truck, but that was all he did at work. For example he would be unable to do wheel nuts if he had flat tyre.
35 The plaintiff’s knee injury still caused him difficulty, but he relieved that by simply taking the weight off it and that is why he was able to keep driving. However, he found that his hand injury affected him almost every hour of the day.
36 There was scarring to the plaintiff’s right hand and fingers which affected the mobility of his thumb, index and middle fingers. When he moved those fingers and thumb, he stretched the scarring which was at best uncomfortable or, at worse, which was often, very painful. The scarring was sensitive and felt “nervy” to touch. He applied a vitamin C moisturiser to it every day.
37 Whilst the plaintiff suffered scarring to his right knee as a result of his injury at Warakirri Dairies, he had been able to cover that scarring where at all possible by wearing long pants. However, he could not cover his right hand, and it was constantly visible. He was embarrassed about its appearance and did not enjoy it when people sometimes asked him about how the scarring happened.
38 The plaintiff sometimes saw people looking at his hand, for example when paying for things at a shop, shaking hands when he met new people, signing paperwork or eating out. He was embarrassed by the scarring and found it unsightly.
39 The plaintiff also had a lack of sensation over the back of his thumb, middle finger and index finger.
40 In his October 2017 affidavit, the plaintiff deposed that lifting bags of groceries with his right hand was still very difficult. He now no longer has problems combing or brushing his hair, as he wears his hair shorter and uses his left hand. He continues to have difficulty with personal hygiene tasks such as going to the toilet.[17]
[17]T10
41 The plaintiff has trouble lifting a bag of groceries. While he could make a fist and grab a shopping bag, it pulls on the scarring when he has to carry a weight.[18] He does not have the strength to hold things with his hand closed.[19]
[18]T7
[19]T9
42 The plaintiff’s work boots are no longer laced, they are ratchet, so he is not doing laces every day. He turns the ratchet with his left hand. He does not wear button shirts.[20]
[20]T11
43 The plaintiff now has less problems opening doors because he uses his left hand and never uses his right. He still finds washing or hanging out clothes difficult, although not as difficult as before.[21]
[21]T26
44 The plaintiff has been living in Queensland for roughly three months. His girlfriend has lived with him for the last two months. He can wash the clothes, but did not hang them up, because he has trouble squeezing the pegs.[22] He does not does not do any housework, because he is always working, and a lot of household tasks irritate his hand.[23]
[22]T7
[23]T7
45 The plaintiff can do basic housework that involves tidying up and putting things away. Otherwise, he has a friend who, once a fortnight or so, will help him with vacuuming, sweeping and cleaning, and more of what he would call the heavy housework.
46 The plaintiff now has less problems opening doors because he uses his left hand as much as possible. Similarly, he now finds washing and hanging out clothes less difficult[24] as he has learnt to do so using his left hand more than his right. He cannot open jars and bottles.[25]
[24]T26
[25]T12
47 Basically, the plaintiff’s injury continues to affect every hour of the day. It can be simply getting his hand caught on the edge of his pocket, having to get a pair of scissors to open a packet of cereal, undoing nuts or bolts, or rotating his hand, as he would have to if he was turning on a gas bottle of a barbeque. Otherwise, he continues to have the problems previously deposed to, and more so recently, as his right hand feels weaker than it was.
48 The plaintiff has to use scissors to open a packet of cereal because he cannot grab the bag to open it. Pulling the bag apart, like getting the grip on the bag and pulling it, pulls on his scarring.[26]
[26]T29
49 The plaintiff still drives most of the time with his left hand on the steering wheel and his right on his lap. If he wants to change position, he can rest his right hand on the gear stick, which is on the right side of the truck, which is left-hand drive.
50 The plaintiff was cross-examined about the history to Dr Elder that he could do all the household chores without restrictions, apart from using the Whipper Snipper. There was more that the plaintiff could not do. Dr Elder did not really ask him any questions and the plaintiff never said this to him, although he did say he had some problems with the Whipper Snipper.[27]
[27]T5
51 The plaintiff last used a Whipper Snipper when he was living in Adelaide. There is no need to do any gardening now as he lives in a rental property in Queensland. The vibration from the Whipper Snipper gave him extensive sharp pain through his arm from his hand up to his arm. He last used a Whipper Snipper about three of four months ago. Before his injury, he used it every weekend on his own lawn in Adelaide.[28]
[28]T6
52 In summary, every morning the plaintiff gets out of bed, he knows he has crook hand. Every activity he tries to perform will hurt him to varying degrees. A lot of the time it can be just an irritation, but on other occasions it will stop him in his tracks. He is getting to the stage where he has to compensate for the injury. As time goes by, he is more or less training himself to be left handed.
53 The plaintiff’s right hand and the scarring were viewed during the hearing in the presence of counsel.[29] The plaintiff pointed out the scars on his thumb, across the back of his hand, over the second and third MCS, on his index and middle finder and in the cleft between his second and third fingers. When he squeezed, all the scarring pulled, and it was tight. He indicated he had pain in all the scar area. There is a lot of pain between the web of his finger and the index finger between the second and third MCS. He had been told this was due to something that had been done to the nerve in surgery. The pain is generally overall.[30] It goes roughly to his wrist, depending on what he is doing.[31]
[29]T8
[30]T8
[31]T9
54 The plaintiff explained that when he clenched his hand it was shaking as a result of all the scarring pulling.[32]
[32]T10
Recent work
55 While the plaintiff is driving the truck, resting his hand on the gearstick, he has no problems, but as soon as he gets out of the truck and he gets involved in various activities of daily life, he seems to have problems with his hand every hour of the day.
56 The plaintiff has only ever been trained to do manual work. He was not a very bright student and cannot see himself sitting at a desk or doing desk or clerical work. He is lucky that at this very time he is driving trucks which are all computer controlled or respond, very much, to the touch of a button, or where any activity in the truck is limited simply to turning the steering wheel.
57 The plaintiff managed to get a new job as a machine operator within a week or so of moving to Queensland and commenced his current job on 28 August this year.
58 Prior to moving to Queensland, the plaintiff had been working as a truck driver with a trucking company which operated out of Adelaide. He was working on a full-time basis driving trucks when there was a change in the type of truck he was driving during February 2017.
59 Until that time, the plaintiff had been driving trucks that towed float trailers. Those trailers are used for carrying things such as machinery that needs to be chained down onto the float trailer. He was having problems with chaining and unchaining because of the pain in his fingers. He also found he had limited strength in his right hand, as a result of which it was hard for him to secure the chains strongly enough.
60 The plaintiff also had problems when sometimes during manipulating or manoeuvring the chains, the chains would sometimes hit his hand and he would suddenly be in heaps of pain.
61 As a consequence, the plaintiff told his employer he would like to drive side trailers or side tippers. That request was agreed to. The difference in operating with a side trailer or side tipper is that there is no manual work involved in this operation. All he has to do is flick a switch and the side of the trailer opens automatically to release the dirt, gravel or whatever is being carried at the time.
62 Some of the plaintiffs jobs post incident involved operating tools or machinery rather than just sitting in a cabin. He confirmed his difficulties in his last job and the changes that had to be made in his duties as a result thereof.[33]
[33]T27
63 The plaintiff managed to continue working through to July 2017 and, in particular, until 1 August 2017, when he had an operation on his right knee which he had injured early 2000.
64 The plaintiff currently works as a machine operator in Queensland, employed by Program Enterprise, which is like a labour-hire firm. It placed him with Boral as a dump truck operator, in around August 2017. He works about sixty hours a week and is paid $25 an hour. He is driving a dump truck on site in a quarry. He works Monday to Friday and some weekends, mainly Saturday.
65 The plaintiff operates a 32-tonne truck, which is a frontend loader or excavator. He drives it to the site. He starts at 6.00am and usually finishes work at 5.00pm. The vehicle has a centre shift. The plaintiff changes gears with his right hand and drives with his left.[34]
[34]T21
66 The plaintiff has difficulty gripping the steering wheel with his right hand for a long periods. He spends fifteen minutes in the cabin transporting loads to where they are dumped and then repeats this trip. It takes four minutes to load.[35]
[35]T22
Recent treatment
67 Not long after starting with Program Enterprise, the plaintiff found he could not use a hammer and, in fact, had difficulty using any tools. His problems were twofold: first, he could not grip the tools or handle the, and, secondly, he had little strength.
68 Starting a new job, the plaintiff was doing new things. He noticed different tasks that he was having difficulty with, so he thought it was time for him to address the problem.[36]
[36]T13
69 The plaintiff went back to seeing a physiotherapist, who told him there was more or less nothing she could do for him in relation to the pins and needles that he has in his fingers, but he could do some exercises to try and strengthen his right wrist and hand.
70 Since last seeing the hand therapist and resuming physiotherapy, the plaintiff really had not had any treatment. He had not gone back to a doctor or had any further investigations.[37]
[37]T14
71 When hand therapy finished, the plaintiff was given exercises and things to do in the meantime, because he was told there was not much else apart from getting his strength back.[38]
[38]T14
72 The plaintiff had still been doing what he had been told to do. He had a grip strength ball and to get the sensation back, used a ball of rice. However, that was not really improving his hand.[39]
[39]T25
73 It was put to the plaintiff, if his hand was giving him so much trouble, why had he not done something about it after seeing Catherine Reid. He explained he had not been able to get time off work.[40] He did not seek treatment for his hand when he was in hospital for his knee because his focus was to get himself out of bed and back to work. He had to work almost from the Monday after the incident happened.[41]
[40]T20
[41]T25
74 The plaintiff attended On the Pulse Physiotherapy ten times since October this year. He resumed that treatment after the gap of eighteen months, because he noticed his hand had been deteriorating over that time, and after starting the new job, he had done different things, and he noticed he “had to really get on top of it.”[42]
[42]T14
75 In re-examination, the plaintiff confirmed that he had not really been told of any other treatment that he could have after he had finished with Catherine Reid.[43]
[43]T26
Knee injury
76 Dr Elder had made a mistake when he reported that the 2012 motorbike accident left the plaintiff with no sequelae.[44]
[44]T22
77 The plaintiff agreed his knee had been a problem for him since that accident. He received a substantial common law settlement, which involved a claim for incapacity, but it was not suggested he was permanently incapacitated for truck driving.[45] He was supposedly incapacitated for physical work which involved, standing all day.[46]
[45]T22
[46]T23
78 About five months ago, the plaintiff underwent knee surgery in Adelaide to have his ACL removed. Thereafter, he had physiotherapy.
79 The plaintiff’s knee continues to give him problems and pain; however, he does not take any medication for it, and only for his hand. His knee is not always painful and he is not always standing. His maximum level of knee pain is probably three or four out of ten.[47]
[47]T23
80 The plaintiff thought he might have had about three months off work after the knee surgery. He returned to just truck driving.[48]
[48]T27
81 The plaintiff confirmed he goes to the gym three times a week, and apart from that, does not play any sports, although he last played basketball in his late teens.[49]
[49]T26
82 The hand injury continues to have a massive effect on the plaintiff’s life.
Wage details
Year Documents $ 2008 No Taxation Return Lodged Nil 2009 No Taxation Return Lodged Nil 2010 Not required to lodge returns for this year Nil
2011 Notice of Assessment and Taxation Return $3,939.00 2012 Notice of Assessment and Taxation Return $23,318.00 2013 Notice of Assessment and Taxation Return $33,482.00 2014 Notice of Assessment and Taxation Return $29,513.00 2015 Notice of Assessment, Amended Notice of Assessment and Taxation Return $31,602.00 2016 Notice of Assessment and Taxation Return $65,369.00 2017 Taxation Return $61,544.00
Lay evidence
83 The plaintiff’s former partner, Chloe, swore two affidavits: the first while she was in a relationship with him, and the second after they had separated, and she had shifted to live with her parents.
84 In her first affidavit, Ms Matthews deposed she was the plaintiff’s partner at that time, having met him at high school. They started living together in April 2014.
85 When the plaintiff shifted to Victoria in February 2015 to work for the employer, she remained in South Australia, but moved to Geelong in July 2015 to be with him.
86 When the plaintiff obtained a job in Pooncarie, she returned to South Australia. He moved in with her after he finished his second stint with the employer in mid-November 2015.
87 At that stage, they lived with the plaintiff’s father in Woodville, South Australia, with the plaintiff having previously purchased a property, into which they shifted together in early 2016.
88 Prior to the incident, the plaintiff had no problems with his right hand.
89 When they got together, she learnt he had injured his right knee in an accident some time before. He was modifying his life around the restrictions the injury imposed, such as slowly returning to some modified gym work and car maintenance.
90 Since the incident, the plaintiff has told her his hand aches, especially in the cold weather. There is no feeling in the sides of his pointer and middle fingers, but where they joined the hand between the fingers it is extremely sensitive to touch, and if accidently bumped, causes him significant pain.
91 The plaintiff sometimes has difficulty holding objects in his right hand, particularly if they are of any weight or if he needs to get a firm grip on them. When they are holding hands, she now tends to hold his left hand because of his complaints of pins and needles in his right.
92 The plaintiff has difficulty using a knife in his right hand and he becomes embarrassed about this if they are eating out. He is self-conscious about the look of his scarring.
93 The plaintiff now uses his left hand to walk their large dog. He has trouble doing up his buttons and the laces on footwear. He prefers to wear work boots, which have a zip.
94 When lifting groceries, the plaintiff tends to use his left hand, rather than the right, particularly if they are heavy. He has tried to use a Whipper Snipper and lawnmower around the house, but the vibration caused an increase of pain in his hand, so she now does those jobs.
95 The plaintiff no longer goes to the gym, and has told her that is because he is very limited in what he can do. He gets hand cramps doing weights and increased pain with push-ups.
96 The plaintiff has not been able to help as much as he could like with renovations to the property in which they live. He has difficulty using power tools because the vibration increases the ache and pain in his right hand. He has difficulty holding certain tools and implements in his right hand because of his injury. Tasks that require full and pain free use of both hands are problematic and he tends to use his left hand and arm wherever possible.
97 The plaintiff cannot hold a pen properly in his right hand and cannot write for long periods as he develops cramps in his hand.
98 The plaintiff does not work on his cars as much as he used to and tells her it is difficult to use some tools and make adjustments with fine use of his fingers and thumb on the right hand.
99 The plaintiff becomes frustrated and upset because of the restrictions the injury has placed on his ability to do things.
100 In her second affidavit, Ms Matthews explained that she and the plaintiff were having relationship difficulties and separated shortly thereafter, with her shifting to her current address in Victoria with her parents, and the plaintiff moving to Queensland.
101 Ms Matthews confirmed it was an oversight to not tell the plaintiff’s solicitors of their separation; however, she confirmed her observations as to the effects of the plaintiff’s injuries and various aspects of his life were true observations made by her until they separated.
102 In his affidavit of 15 August 2017, the plaintiff’s father, Domenico Fragomeni, confirmed the problems the plaintiff deposed to.
103 The plaintiff was living in a caravan park at Geelong at the time of the incident, and Mr Fragomeni then visited him to see how he was going.
104 Later that year, the plaintiff and his girlfriend shifted into Mr Fragomeni’s Woodville premises, where they lived for about six months until shifting into the property they purchased. In January 2017, Mr Fragomeni moved into that address.
105 Pre incident, the plaintiff did not have any problem with the use of his right hand and fingers. He was a pretty active sort of young man, although he had some problems caused by his right knee injury.
106 After the incident, Mr Fragomeni observed a number of problems that had arisen post incident. They included the plaintiff having problems picking up certain items with his right hand and sometimes losing his grip and dropping things. He could not seem to make a proper fist with his right hand.
107 The plaintiff had stopped working on, and maintaining and repairing, his personal motor vehicle, and said he had problems with the use of tools and dis-assembly and reassembly of items because of pain and loss of fine motor skills in his right hand and some of the digits.
108 The plaintiff had problems holding eating utensils in his right hand.
109 Mr Fragomeni felt that the plaintiff’s grip, when shaking with his right hand, was less forceful, and he now prefers to shake hands with his left hand.
110 The plaintiff has complained his right hand and some of his fingers feel funny when he puts them in hot water when washing the dishes. He has problems holding dishes when wiping them, and complains it is hard to get a good grip.
111 The plaintiff has had difficulty cutting vegetables such as pumpkin, and peeling potatoes when using his right hand, to the extent, when Mr Fragomeni is present, he will do that for him.
112 In terms of the plaintiff’s efforts to continue renovating the Adelaide property, Mr Fragomeni has seen him having difficulty holding a paintbrush properly in his right hand and difficulty in replacing cornices, with an inability to hold replacement cornices in place, to the extent he had to pay someone else to do it.
113 The plaintiff also had to pay someone else to install the kitchen when, previously, he believed the plaintiff had the capacity to do it himself. Also, there were certain preparatory electrical works that involved drilling holes, that the plaintiff could not do properly because the vibration in drilling tools caused pain to his right hand and digits and another family member had to undertake that work.
114 The plaintiff sometimes becomes angry and upset when the right hand injury precludes him from doing something, or otherwise causes a problem in some way.
Treaters
115 The plaintiff initially attended Werribee Hospital and was later treated at St Vincent’s Hospital.
116 The plaintiff attended the Emergency Department at Werribee Hospital at 1.49pm on the said date. He presented with a crush injury to his right dominant hand which had been caught in a rock grader machine on the day of presentation.
117 It was noted the plaintiff had sustained a crush injury to his right hand with multiple lacerations on the dorsum of his hand over the proximal metacarpal, the distal first metacarpal, the index-middle web space, the dorsum of the middle finger over the entire length and the dorsum of the thumb. Distal sensation was intact except for part of the thumb and part of the index finger. Tendon function was intact.
118 The plaintiff received irrigation and local infiltration with local anaesthetic for cleaning. He underwent x-rays that could not find any convincing underlying fracture, nor any radio opaque foreign material. He was given an ADT and intravenous antibiotic, and transferred to be seen by the Plastics Unit at St Vincent’s Hospital.
119 The plaintiff was admitted to St Vincent’s Hospital after assessment under the plastic surgical team for management. He was found to have multiple lacerations to the dorsum of his right hand with intact vascular supply to all his fingers and no evidence of injury to tendons or nerves.
120 The plaintiff was taken to theatre and had a washout and repairs with multiple lacerations to this right hand on 2 August 2015.
121 It was reported there was no evidence of damage to deeper structures. The ulnar dorsal nerve and nerve to middle finger were bruised, but intact. A hand splint with fingers and extension was placed, and ongoing analgesia was given.
122 The plaintiff remained in the Hospital until 3 August 2015, with subsequent follow up to be organised in Outpatients. He was seen one week post his surgical repair and his wounds were good. He was seen again three weeks after the surgery, on 28 August 2015, when his sutures were removed and he was referred to hand therapy for mobilisation, with his progress deemed satisfactory.
123 There was no further attendance at the Hospital.
124 The plaintiff has recently started seeing On the Pulse Physiotherapy in Queensland, having first attended on 5 October 2017.
125 At his initial attendance, the plaintiff complained of pins and needles in the whole right hand from the wrist down, slight numbness around the third and fourth MC and pain between the fourth and fifth digit.
126 On assessment, it was noted there was reduced right grip strength, with decreased sensation along the median nerve track of the hand.
127 A range of exercises were suggested.
128 On examination on 15 November 2017, it was noted the plaintiff fatigued very quickly in various exercises. His right hand was painful in several movements and he had significantly reduced grip strength. A strengthening program with an exercise physiologist was suggested. He was to be reviewed in two to three weeks.
The Plaintiff’s medico-legal evidence
129 The plaintiff was examined at the request of CGU by occupational physician, Dr Elder, in September 2016.
130 The plaintiff advised he used moisturiser on his hand most days. He was advised to continue putting his hand in a bowl of rice for desensitisation by the hand therapist, but had not continued doing so as he did not think it was making any difference.
131 In terms of occupational history, Dr Elder noted the plaintiff actually returned to work as he was forced to do so by his employer, going back directly to work when he was discharged from the Hospital so it would not be counted as a lost time injury. The plaintiff then received abusive text messages from the employer, and that is why he no longer worked there.
132 At the time of this examination, the plaintiff was a full time truck driver in Victoria, driving grain. At that stage, he had moved in with his partner’s mother.
133 The plaintiff told Dr Elder he was able to drive. He said he could do all household chores without restrictions, apart from using the Whipper Snipper, on which he could not pull the trigger, especially because the vibration was very uncomfortable. He was independent in self-care, and right-hand dominant.
134 Dr Elder noted the quite prominent scars on the back of the plaintiff’s hand over the second and third MCPS as well as scarring over the thumb, index and middle finger. There was scarring in the interdigital cleft between the second and third fingers. These measured 7 centimetres, 4 centimetres, 3 centimetres and 6 centimetres over the back of the hand and fingers and there was an ‘H’ shaped scar over the back of the thumb measuring 4 centimetres and 3 centimetres.
135 Movement was of the right hand was diminished. There was also a two-point partial loss of sensation over the ulnar aspect of the thumb of 70 per cent, and over the dorsum of the index and middle finger of 60 per cent, and 50 per cent of the length respectively.
136 Dr Elder considered the plaintiff’s impairment had stabilised. He assessed the plaintiff’s whole person impairment at 13 per cent making an allowance for scarring, loss of sensation and nerve damage.
The Defendant’s medico-legal evidence
137 Associate Professor Anthony Buzzard, orthopaedic surgeon, examined the plaintiff in October this year.
138 The plaintiff advised he was not on any medication save for Panadol, averaging about eight tablets a week. Pain was brought on by vibrations from power tools.
139 The plaintiff told Associate Professor Buzzard that he was able to wash, dress, toilet and feed himself.
140 On examination, Associate Professor Buzzard noted the scarring. He thought there was absent sensation in the contiguous borders of the right thumb and index finger.
141 On testing of the forearm flexors on the right, the measurements were 40:40:38 kilograms and on the left, 54:59 and 56 kilograms.
142 Associate Professor Buzzard noted the injury involved a laceration of the dorsal aspect of the right hand. It appeared not to have involved a tendon, albeit, there is some evidence of involvement of cutaneous nerve in the dorsal aspect of the hand.
143 Associate Professor Buzzard was concerned the plaintiff claimed weakness in the right hand compared with the left, thus he carried out a strength evaluation which showed the plaintiff had a 17 per cent loss of strength index.
144 Associate Professor Buzzard thought the plaintiff was now capable of unlimited work. He did not think that the claim of weakness was a significant employment problem, nor that the other symptoms were significant in terms of employability.
145 Associate Professor Buzzard considered the plaintiff’s condition to be stable. He did not think any further treatment was indicated.
146 In terms of the plaintiff’s enjoyment of life, Associate Professor Buzzard noted the plaintiff no longer lifts weights at the gym, otherwise, Associate Professor Buzzard did not think there was a significant ongoing problem in relation to either the hand injury or the earlier knee injury.
Overview
147 There is no dispute the plaintiff suffered a compensable injury on the said date when his right hand and fingers were sucked into a radiator and hit by the thermo fan.
148 The defendant accepted liability for the payment of weekly payments and medical expenses. The plaintiff’s permanent impairment application was also accepted by letter dated 11 October 2016 in which he was advised that liability had been accepted for injury to his right hand, including the fingers and thumb.
149 There is no suggestion of any functional element in the plaintiff’s presentation, nor is there any history of previous right hand problems.
150 Counsel for the defendant confirmed the issue was only one of range.[50] Whilst it was conceded that there was a compensable injury, in determining whether the plaintiff’s impairment was at least very considerable, it was submitted weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & Anor v Dennis:[51]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable.”[52]
[50]T4
[51](1998) 1 VR 702
[52]T29; See also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [73]
Credit
151 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[53]
“… 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.”
[53]Supra
152 There was no attack on the plaintiff’s credit by counsel for the defendant.
153 I found the plaintiff to be a truthful, credible witness who gave a straightforward account of his pain and restrictions without embellishment.
154 As this is not really a credit case, counsel for the plaintiff submitted the Court should accept the plaintiff at his word when he says for example he wakes every day and knows he has a crook hand. Every day he is affected in some way or another by this injury.[54]
[54]T35
155 In my view, the plaintiff is somewhat of a stoic. Despite a traumatic injury to his dominant hand, he has missed very little time off work, discharging himself from St Vincent’s Hospital, immediately resuming his duties at the employer’s insistence, despite having to wear a sling.
156 The plaintiff’s work ethic thereafter has also continued to be very strong.
157 As Nettle JA noted in Dwyer v Calco Timbers Pty Ltd (No 2),[55] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”[56]
[55][2008] VSCA 260
[56] [2008] VSCA 260
158 Since he was injured, the plaintiff has moved from job to job, taking up various opportunities. He drives in a manner compatible with his injury. He was not really challenged in this regard or as to how his injury affected him, in many ways, every hour of the day.[57] His problems with use of power tools was not really challenged and his problems with obtaining a proper grip were confirmed by Associate Professor Buzzard’s testing.[58]
[57]T34
[58]T35
159 Further, the corroborative evidence of the plaintiff’s former partner and father was not challenged.
Is the impairment serious?
160 Counsel for the defendant submitted any current impairment just does not meet the test. “It is just not in the range.”[59]
[59]T33
161 It was conceded there was an injury that occurred in compensable circumstances; however, that had been repaired. It was submitted the two hospital reports did not contain any indication of any compromise of any aspect of the hand. At best, there was some bruising found. There were multiple lacerations, intact vascular supply to the fingers, and no evidence of further injury.[60]
[60]T30
162 It was submitted that cutaneous nerve involvement described by Associate Professor Buzzard was speculative. However, in my view, this was not Associate Professor Buzzard view and he clearly made this finding.[61]
[61]T30
Pain
163 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[62] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).[63]
[62]Supra
[63](supra) at paragraph [3]
164 The plaintiff’s continues to complain of pain when his right hand is knocked. Further, he experiences pain when his fingers are stretched doing a range of tasks.
165 When seen by Dr Elder, the plaintiff described continuing decreased movements in the thumb, index and middle finger, secondary to the scarring, which felt tight, especially the inter-digital scarring between the index and ring finger. The other two fingers generally felt stiffer than they did before the injury. He also described altered sensation over the back of the thumb, index and middle finger.
166 On examination by Associate Professor Buzzard, the plaintiff advised he had trouble lifting because of a lot of weakness of the right hand, and that weakness was worsening. He reported he had pain in the right hand in the web space between the index and middle finger and between the web space between the right thumb and index finger.
167 Loss of sensation was found by both examiners as was loss of strength in the right hand. As a result thereof, the plaintiff is unable to grip effectively and he has problems carrying things. Fine motor tasks are difficult.
Treatment
168 Counsel for the defendant submitted that demonstrably, the plaintiff had done very little, if anything, in the way of treatment. He takes Panadol and Nurofen, not a significant dose, only eight or less tablets a week.[64]
[64]T32
169 It is now two and a half years since the incident and the only treatment is a “burst of physiotherapy” when the plaintiff said his job was altered. However, it was submitted he was in fact doing much the same job driving a truck.[65]
[65]T32
170 However, there has been no suggestion by any treater of medico legal examiner of any further treatment.[66]
[66]T33
171 Initially, the plaintiff was seen at Werribee Hospital and he was then an inpatient at St Vincent’s Hospital for four days, when his wounds were cleaned and sutured.
172 The plaintiff has undergone all recommended treatment thereafter. Following his stay at St Vincent’s Hospital, he underwent hand therapy for twelve weeks with Catherine Reid and he continues to do the exercises suggested. Whilst not requiring the higher level of painkillers, the plaintiff continues to require about eight Panadol a week for pain relief.
173 In addition to ongoing pain and the need for treatment, I accept there are further consequences of the plaintiff’s hand injury relating to his work, social, domestic and recreational activities.
174 Whilst the plaintiff has been able to continue in full-time[67] work doing most of his pre-injury duties, there are restrictions on the tasks he can now perform.
[67]Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
175 The plaintiff is able to undertake the truck driving duties involved in his current job and other jobs since leaving the employer; however, he has to rest his right arm whilst driving.
176 The plaintiff’s work is however not solely driving. At times, he has been required to do manual work involving chains and tools. He had difficulty with the chains at his last job in South Australia and in more recent times, in his current job in Queensland with operating vibratory tools, leading him to seek further physiotherapy treatment.[68]
[68]T33
177 As counsel for the plaintiff submitted, the plaintiff is a young fellow with limited education, and apart from a job as a checkout operator in a supermarket, had done nothing but worked as a plant operator all his life. Clearly, with the problems he has with his right hand, if it was not for truck driving, he has no job he could do. While it was conceded it is not an economic loss claim, the plaintiff is limited in what he can now do in the labour market as a result of his hand injury.[69]
[69]T34
178 Further, I accept that the plaintiff is a hardworking, unsophisticated man with limited hobbies. As a result of his hand injury, he was unable to continue working on his Adelaide home, having problems with using tools, undertaking electrical work and doing fine hand movements working on cornices, and had to employ others to carry out jobs he otherwise would have done. Similarly, he is unable to do the fine motor tasks required to work on his car.
179 The plaintiff’s right hand and fingers are a problem for him every day in all aspects of his life, and this situation is permanent. Dressing, going to the toilet, doing up buttons and shoe laces, cutting up hard vegetables, even using cutlery are issues for him with the stretching aspect of the scarring that causes him real difficulty.[70]
[70]T3
180 The plaintiff’s injury, although not to a weight-bearing joint, affects him almost every hour of his life, in a range of activities, both minor and more serious.[71]
[71]T3
181 The plaintiff is still a very young man, now aged only twenty-five.
182 In Stijepic v One Force Group Aust Pty Ltd,[72] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[72](Supra) at paragraph [43]
183 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty 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.
184 Taking into account all the evidence, I am satisfied that the plaintiff’s impairment to his right hand and fingers meets the statutory definition of “serious”.
185 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
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