Ghimire v Peuker and Alexander Pty Ltd
[2018] VCC 1999
•3 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-02146
| SUJAN GHIMIRE | Plaintiff |
| v | |
| PEUKER & ALEXANDER PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 November 2018 | |
DATE OF JUDGMENT: | 3 December 2018 | |
CASE MAY BE CITED AS: | Ghimire v Peuker & Alexander Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1999 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment to the right index finger and thumb – pain and suffering only – range case
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Cross v Ridley Agriproducts Pty Ltd [2014] VCC 616; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Slater & Gordon Lawyers |
| For the Defendant | Ms S Manova | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 10 September 2015 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the right hand involving the right index finger (“the finger”) and the right thumb.
5 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.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By s325(1)(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”.
9 Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10 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.
11 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.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
12 The plaintiff relied upon two affidavits and he was cross-examined. He also relied on an affidavit sworn by his wife, Shanta Paudel, on 19 October 2018. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is presently aged thirty-four, having been born in Nepal in June 1984. He is married with a five-year-old daughter. He came to Australia in 2008, having done a third-year equivalent of a degree-level social studies course in Nepal.
14 The plaintiff started work with the defendant in 2009 on a full-time basis as a saw operator. He is right handed and had no pre-existing problems, injuries or compensation claims prior to the present application.
15 In May 2013, the plaintiff resigned from the defendant to take his newborn daughter to Nepal. He recommenced employment with the defendant three months later.
16 Prior to the incident injury, the plaintiff did not suffer from any illnesses of lasting significance that prevented him from working or pursuing his recreational, domestic and social activities.
17 On the said date, the plaintiff was working on an automatic saw,[3] placing timber on a bench and pulling the handle of the saw. When he pushed the saw back, a small piece of timber flipped and flicked and hit the dorsal extremity of his right thumb and the mid-radial side of the finger.[4]
[3]A photograph of the “Spida” machine was tendered
[4]Transcript (“T”) 11
Treatment
18 The plaintiff was taken to the Northern Hospital (“the Hospital”). The whole visible part of his right thumb nail bed had been severed, leaving the bones exposed. He also suffered a laceration to the right side of the finger (“the incident”).
19 The plaintiff had surgery at the Hospital on 29 April 2015. He underwent a debridement and repair of the right thumb and the finger lacerations, ostectomy and nail bed relief of right thumb and nerve/artery repair of the finger.[5] He was hospitalised for three days.
[5]Consent to Operation Form and Operation Sheet
20 After discharge, the plaintiff had hand therapy for about three months and then was managed as an outpatient.
21 The plaintiff agreed that there was mild discomfort when using the finger, as the Northern Hospital reported when he was last seen there in mid 2015. He agreed he was then using both hands for all duties.[6]
[6]T67
22 The plaintiff disagreed he did not have more hand therapy because he was too busy. He had already had that treatment and was told he did not need to come back; if he wanted to he could.[7]
[7]T69
23 The plaintiff was embarrassed about how his hand looked. He had asked one doctor at Camberwell[8] about surgery but was told it would cost too much money.[9]
[8]Mr Buntine mentioned in his 2016 report that the plaintiff would need time off work for further surgery
[9]T78
24 As of June 2017, when he swore his first affidavit, the plaintiff was taking Panadol for pain. He did not like stronger medication and was worried about the side effects and the long-term effects medication may have on him.
25 The plaintiff continues to take Panadol, on average two to three days a week, to manage his right-hand symptoms. He generally takes about two tablets on those days and takes them at night after a day at work.
26 The plaintiff is not taking a stronger painkiller because of the potential side effects and cholesterol issues. His symptoms are adequately managed by the occasional Panadol.[10]
[10]T66
27 The plaintiff continues to see general practitioner, Dr Ifana Akam, at Hanson Medical Centre in Craigieburn, as that practice is closer to his house.
28 The plaintiff agreed he last obtained a certificate from his doctor in July 2015. Since then his doctors had just told him to take Panadol.[11]
[11]T20, T72
29 The plaintiff has mostly attended the Craigieburn Super Clinic (“the Clinic”) about his hand. The notes from the Clinic from December 2016 to 21 June 2018 were tendered. The plaintiff has also been seen by Dr Tunaley in Cooper Street to whom he was sent by Peter Alexander.[12]
[12]T25
30 The plaintiff last mentioned his hand at the Clinic in July 2017. It was then noted he “hurt his Rt thumb and index finger at work 2 years ago, distal phalanx of thumb and proximal IP joint painful. Seen by Professor Behan suggest x-ray.”
31 The plaintiff agreed he had back pain in January last year as Dr Gobinath at the Clinic recorded. There was not a specific incident, it was just lifting and bending too many times every day.[13]
[13]T73
Pain
32 In the first affidavit, the plaintiff described pain occurred when he lifted really heavy objects and increased when the weather was cold. The pain could wake him at night and he could often wake up two or three times in pain. He often felt tired and found it hard to concentrate at work. He had an abnormal sensation, especially in the finger.
33 The plaintiff had reduced pinch strength between his thumb and the finger, so that reduced his ability to pick things up. Both fingers felt stiff, and he felt a limitation of movement in both digits. Sometimes the stiffness in the finger improves during the day but not all the time.[14]
[14]T75
34 In his recent affidavit, the plaintiff described the pain at the top of his thumb and across the scar on the finger as a numbness and pulling-type sensation that can feel tight. He feels the pain increases in winter.
35 The plaintiff believes his right grip strength is less because of the pain in the finger when bending to grip and then gripping. He continues to find his pinch weak between his thumb and the finger causes him difficulty picking up small objects and gripping them.
36 The plaintiff confirmed his right hand pain increases in winter and when he has a hard day at work. There is pain while he is at work[15] and sometimes after working he experiences pain. When working in aged care, he does not need any painkillers but in his other job, if he works too hard, he takes them.[16]
[15]T63
[16]T65
37 On viewing the plaintiff’s thumb, it appeared he had lost the top part of it, about half the size of his thumbnail.[17]
[17]T13
38 The plaintiff cannot curl his thumb or the finger normally. When he curls the finger fully it hurts. It is about 80 per cent curled. If he attempts a pincer grip, he experiences pain. All around the top of his thumb and on the side of the finger it does not feel normal.[18]
[18]T14
39 The plaintiff confirmed Dr Bloom tried to push the finger and his thumb to get more movement on examination earlier this year.[19]
[19]T76
40 In his first affidavit, the plaintiff described his thumb looking deformed, and he was very self-conscious about it. He did not like shaking hands as a greeting and hid his hand to prevent people from looking at it and asking him what had happened.
Consequences
41 As at June 2017, the plaintiff had difficulty undertaking tasks at work, such as lifting timber, due to his reduced hand strength. Writing was extremely difficult and he had to get his wife to help him. He could not write for longer than two minutes. He had trouble with fine motor movements and picking up objects, and found his hand felt clumsy.
42 The plaintiff then had difficulty doing home repairs. He used to enjoy gardening, but had great difficulty using the Whipper-Snipper and now had to get help from his friends and wife.
43 The plaintiff previously enjoyed cooking at home and doing small tasks, like changing batteries in his daughter’s toys. These tasks were now very difficult. The finger was constantly in a bent position and he had to remind himself to straighten it.
44 When asked what he meant by “reminding himself,” the plaintiff said that when he saw people he was self-conscious and he tried to straighten the finger and make it look a lot better when people asked him what was wrong.[20] He tries to straighten it but he cannot make it straight every time; it is always bent.[21]
[20]T16-17
[21]T18
45 The plaintiff had difficulty with driving and found, after a short period of time, his grip strength on the steering wheel was reduced. He did not have the confidence driving that he used to have.
46 The plaintiff played volleyball in Nepal weekly. When he first came to Australia, he did not play initially, but then resumed playing in 2012 with a cultural group every couple of weeks. He did not play competitively before the incident.[22] The plaintiff really enjoyed the sport and now could not play due to his reduced ability to grip the ball.
[22]T77
47 The plaintiff had difficulty cooking and cutting. He tried to do those things, but his wife often had to take over due to his problems. He missed being able to help in the kitchen as he used to enjoy preparing food and cooking.
48 The plaintiff had difficulty with some aspects of dressing, in that he had trouble with long-sleeved shirts and anything that required zips and buttoning up. He was fashion conscious and his wardrobe had become limited.
49 The plaintiff had difficulty lifting and carrying his daughter. He was concerned about his ability to carry her as her weight increased. That situation upset him. He had always wanted to be a hands-on parent and was limited in what he could do in relation to his daughter’s care. He was concerned about his ability to look after children due to his physical limitations.
50 The plaintiff’s intimate life had been affected and that placed a strain on his relationship.
51 In his recent affidavit sworn on 9 October 2018, the plaintiff confirmed the injuries he sustained to his right thumb and the finger continued to impact on his ability to help around the house.
52 Prior to the incident, the plaintiff was the person in the family responsible for gardening, including mowing. The family house is on a 580-metre-squared block of land, so there is a lot lawn. Prior to the incident, he was able to mow the lawn in one day. He now finds that mowing causes increasing discomfort, because it requires him to hold and push a mower in a sustained and long grip. He continues to help out with mowing occasionally, but it is a struggle and uncomfortable. If he tries to do the mowing, he is generally unable to mow the entire lawn in one day and does a small patch only.[23]
[23]T11
53 The plaintiff’s friends and his wife now help significantly with the mowing and tend to do it most of the time. He is lucky to have friendly neighbours in his street. Generally, his wife, and mother, who is now living with them, manage the other gardening.
54 The plaintiff agreed he still does some home maintenance as he was shown doing in the surveillance film. He still mows the lawn occasionally but not all in one day. Sometimes he has trouble with getting dressed with zips and buttons[24] and he gets help from his wife.[25]
[24]T59
[25]T60
55 The plaintiff continues to experience difficulty and discomfort if he writes quickly or for more than a few minutes at a time. He agreed that neither of his present jobs required extensive writing.[26]
[26]T62
56 When it was put to the plaintiff his wife had described him as their daughter’s primary carer, he said he had help from his mother and other family members.[27] He does not cook all the time.[28] He bathes their daughter and puts her to bed.[29]
[27]T57
[28]T58
[29]T59
57 The plaintiff was aware of the Facebook photograph showing him carrying his daughter. He confirmed he has problems with his right hand doing so. He always holds her with his left hand and supports her with his right.[30]
[30]T63
58 Whilst shown on Facebook in September 2016 feeding a family member birthday cake, the plaintiff was not then using the finger.[31]
[31]T80
59 The plaintiff agreed he could take a “selfie” but did so in a strange way, not using the finger.[32]
[32]T74
60 The plaintiff learned to ski in Australia in 2012. When he was photographed on 5 July this year, posted on Facebook, was the next time he went skiing.[33] He just went walking and posed for the photographs. He went because of pressure from his daughter.[34]
[33]T82
[34]T83
Work post incident
61 On his return to work, the plaintiff did not use the Spida machine.[35] It was not part of his normal work before but he was using it at the time of the incident.[36]
[35]A photograph of the machine was tendered
[36]T19
62 The plaintiff agreed that after a period of modified duties he went back to pre-injury duties on the automatic saw for about twenty months before he resigned. He complained to his supervisor at that time about his problems doing that work, not to the boss. He never spoke to Peter Alexander in this regard.[37]
[37]T23
63 The plaintiff continued to work because he did not have any choice, that is what he needed to do.[38] In re-examination, he described the type of duties he did in the last months with the defendant.[39]
[38]T20
[39]T89
64 The plaintiff left the defendant’s employ on 3 March 2017 as he could not continue, as his pain increased and he was struggling with discomfort on a regular basis. He left because they could not give him an easier job. There was “no chance to move anywhere”.[40]
[40]T24
65 The plaintiff enjoyed working with the defendant and missed the social networks there. He could not continue in that job due to reduced grip strength and the danger he felt he was putting himself in. He felt a line of work had been closed off to him that he previously enjoyed and he was still quite young to have work of a physical nature requiring manual dexterity closed off to him.
66 The plaintiff was not then working full time as he felt he found his employment was limited due to his injuries. Further, the type of role he could work in had diminished and his range of employment options had been reduced.
67 The plaintiff completed a Certificate III in Aged Care which he commenced in May 2017. He found it difficult in class to take notes because of right hand pain. He tried to cope by taking notes very slowly, and regularly he would have to stop and rest. He often had friends help him and he relied on their notes. He believed that the difficulty he experienced writing would prevent him from undertaking further study that required him to write.
68 The plaintiff used to drive an Uber to earn some extra income each year. He drove for about seven or eight months.[41] In the year before he hurt himself, he earned an additional $8,500 in that role before deductions. After the incident, he tried to do some casual driving, but had since given that up as he was experiencing pain and discomfort in his right hand after about twenty-five minutes driving.
[41]T61
69 In the financial year ending June 2017, after he quit his job with the defendant, as well as Uber driving, the plaintiff’s income dropped to about $46,000.
Work since leaving the Defendant
70 Since March 2017, the plaintiff has tried to gain meaningful and permanent employment elsewhere, but has been unable to hold down any job for more than about six months because of his right hand injuries.
71 The plaintiff had tried driving a forklift, delivering furniture and installing insulation. He found forklift driving caused discomfort and pain in his thumb and the finger.[42]
[42]T90
72 The plaintiff also found lifting furniture, which involved gripping, caused pain and discomfort in the finger and his thumb. On occasion, he dropped furniture as a result. He found the lifting and gripping of insulation batts too difficult to continue with and quit each job because of his injuries.
73 The plaintiff has also attempted to, and continues to, work in the aged care industry casually. He has only been able to obtain very casual employment for a handful of hours each week. He occasionally has to assist people to dress, including doing up buttons and watches, which he struggles with.
74 For two years, the plaintiff has not been able to find a job he can do pain free. He has tried many things. It has been incredibly frustrating for him and has impacted his family and himself. Because he cannot afford to continue not to work, he has begun working in a job doing similar duties to his pre-injury duties. He continues to experience pain and discomfort, including when lifting heavy things. While he is working through pain at the moment, he does not believe he can continue to do this type of job until retirement and does not know how much longer he can continue to work. He is struggling on at present because he needs the money.
75 After leaving the defendant, the plaintiff initially obtained a job as a truck driver. He later worked at Grand Kayman/No Gap Insulation between September and December 2015. During that time, he earned about $25,000. There, he worked as a store person and truck driver and did long hours; however, he took his time when he did his work and had to do it slowly.[43] He was able to manage the pain in his thumb and the finger sometimes when he was delivering the insulation;[44] however, he would sometimes need to take a rest when doing a delivery.[45]
[43]T28
[44]T30
[45]T31
76 Before he worked at No Gap, the plaintiff worked at Farragher Logistics from July. He was never working in both jobs at the same time.[46] He was like the dogman and sometimes he drove the truck at Farragher. He would go to sites and unload kitchen cabinets.[47] He suffered a loss of earnings, having previously earned about $800 clear a week. He was then earning $500 to $700 clear.
[46]T33
[47]T34
77 At No Gap, the plaintiff was told he was not suitable for this job. He did not tell that employer about his injury because they would have sacked him. They told him that he was not fast enough on delivery and forklift driving. If he had told that employer about his hand, it would have told him to “go straight away”. He could not find a job straight away and that was the main problem.[48]
[48]T35
78 The plaintiff signed a letter of resignation on 11 December 2017 addressed to his employer, Grand Kaman Pty Ltd, which read as follows:
“I am writing to advise that I am resigning from my position as Storeman at No Gap Insulation Service. I am giving you 1 weeks’ notice therefore my last day of work will be Friday 15th December 2017.
Kind regards
Sujan Ghimire.”
79 The plaintiff’s resignation letter was typed by the boss and he just signed it.[49]
[49]T83
80 The plaintiff confirmed that because he was slow doing his job at No Gap and could not do the installation of the batts, he no longer had the job.[50]
[50]T87
81 The plaintiff had the knowledge from that job as to what was involved in insulation. Therefore, he set up his own business – Team Insulation Pty Ltd – with some friends who put the money together. That work was suitable for him because he could get help.[51] He did some installation over about a month-and-a-half.[52]
[51]T36
[52]T37
82 The business ceased after a short period (two months) because the plaintiff could not make much money. He had to pay “the boys” and he really could not do the hard work himself because it was all with his hands. He could not survive on the money there, not doing anything but delivery.[53]
[53]T38
83 The plaintiff had difficulties with his right hand doing the actual installation work. Pushing the batts up into the ceiling required him to use his fingers every time.[54] He could do about an hour or two of installation work but then had pain and he stopped. His right hand would just be the support, and most often he used his left hand in that task.[55]
[54]T39
[55]T91
84 After he ceased this business, the plaintiff did the aged care course.[56] He disagreed that he earns much less money in that role than working as a saw operator.[57] He could not find aged care work during the week. It is easier for him to do that type of work than working as a saw operator.[58]
[56]T40
[57]T42
[58]T43
85 The plaintiff currently works at Daecon as a saw operator. There is not much pushing involved in the job. The material is put on a chain. The heaviest piece of timber he would pick up weigh 5 to 8 kilograms.[59] He now feeds timber that weighs four to five kilograms into the machine.[60]
[59]T43
[60]T92
86 The plaintiff has not told Daecon about his hand injury because he would not have got the job. He had told earlier potential employers.[61]
[61]T44
87 The plaintiff has applied for forklift driving and factory jobs after his injury because he has no choice. He has to, he has to survive and look after his family.[62]
[62]T45
The film
88 The plaintiff was shown surveillance film of his activities. On 29 October last year, he was shown at the front of a house. He explained he was doing some cleaning. He was not painting.[63] He agreed he was also shown using a power drill but demonstrated he used it without involving his index finger, using his middle finger.[64]
[63]T48
[64]T50
89 The second part of the footage was on 31 October 2017, when the plaintiff was shown moving insulation batts on the back of a truck. There were about forty batts which each weighed 5 to 6 kilograms.[65]
[65]T51
90 The plaintiff emphasised he was using his left hand to do various tasks.[66] The finger always sticks out. He does not know if it was doing so on the video.[67] In the activities he was filmed undertaking, he was using his middle finger.[68] He disagreed that he was shown using his right hand normally.[69] When using the ratchet, he put most of the force on his palm.[70]
[66]T52-53
[67]T53
[68]T54
[69]T55
[70]T56
91 The plaintiff agreed the bags of insulation weighed more than 5 kilograms, but he would not say they weighed 13 kilograms.[71] He confirmed he was not doing much with the finger in the film.[72]
[71]T57
[72]T90
Lay evidence
92 The plaintiff’s wife, Shanta Paudel, swore an affidavit on 9 October 2018. She is a qualified personal care attendant and works full time.
93 Since the incident, Shanta has heard the plaintiff regularly complain of pain in the finger and thumb if he accidently knocks them or puts pressure on them.
94 During a regular week, Shanta generally has to work afternoon and evening shifts at least a few times. Practically, that means the plaintiff is the primary caregiver for their daughter in the evening and he also organises family dinners. Before the plaintiff injured himself, he used to regularly cook meals such as curries from scratch, which would involve a lot of preparation. Since his injury, he has regularly told her he cannot cook and chop properly because it causes pain in his fingers and it is uncomfortable. He regularly says he struggles to hold kitchen implements comfortably. Now the plaintiff has generally stopped cooking for the family that involves preparation and chopping. He generally orders take-away for dinner or makes a simple meal that does not involve a lot of preparation or chopping, such as putting things into the oven to roast.
95 Before his injury, the plaintiff used to be generally responsible for the gardening and mowed the lawn and tended to the garden. Since his injury, he told her a number of times that gardening and mowing were difficult for him and caused discomfort and pain in his right hand. Either the neighbours or friends, or she, now generally mows the lawn. The plaintiff helps occasionally, but only does one small part of the lawn at any one time, rather than doing it all in one day as he used to.
96 Shanta also does the majority of gardening on most days. At times, the plaintiff tries to help her, but he tells her it is difficult and uncomfortable on his right hand. This situation has placed stress on the family.
97 One of the plaintiff’s biggest complaints to her since his injury has been he cannot write properly and she observes he struggles to write for more than a few minutes.
98 The plaintiff used to do most of the driving in the family, including long drives. He continues to drive, but she sees that he generally uses his left hand to hold the steering wheel. She has also heard him say at times that long drives are difficult for him. In those circumstances, she now generally drives if they have to go further than locally.
99 The plaintiff used to be very handy and fixed things that needed doing around the house. Since his injury, he has told her on a number of occasions he struggles using tools, such as screwdrivers. While he fixes some things occasionally, they have had to ask neighbours or a handyman to help out around the home on a number of occasions since he was injured.
100 Shanta has observed the plaintiff tell their daughter a number of times he cannot fix her toys.
101 Since his injury, Shanta believes she and the plaintiff’s lives have changed, especially his life, and his injuries have placed a lot of pressure on the family.
Investigations
102 There was an x-ray of the plaintiff’s right hand carried out on 27 April 2015. It was reported there was evidence of a fracture with distal displacement of the bony fragment across the distal tuft of the distal phalanx of the thumb. No further bony fractures were identified.
103 There was a further x-ray of the plaintiff’s right hand on 14 July 2017. It was found the tuft of the distal phalanx of the thumb was irregular, in keeping with a previous fracture. The interphalangeal joint of the thumb was unremarkable. The interphalangeal joints of the index finger were unremarkable and the phalanges of the index finger were normal. It was concluded there was an old fracture of the tuft of the distal phalanx of the right thumb.
The Plaintiff’s medico-legal evidence
Mr John Buntine, plastic and hand surgeon
104 Mr Buntine examined the plaintiff on 28 September 2016.
105 Mr Buntine noted the history of the incident and the plaintiff’s subsequent treatment. At that stage, the plaintiff was occasionally taking Panadol.
106 On examination, the plaintiff said he was not troubled by any continuous pain affecting his right thumb and index finger, but that the small elevated irregular remnant of his right thumbnail was tender when pushed upon, and the same applied, to some degree, to the well-healed skin immediately distal to the thumbnail remnant. He also advised the scar on the radial side of the mid-part of the finger was also tender to pressure and that he experienced discomfort in the finger’s proximal interphalangeal joint at the limit of flexion.
107 The plaintiff reported the pinch between his right thumb and finger was weak, probably largely due to the discomfort he experienced in both digits, and he had problems picking up small objects.
108 The plaintiff advised flexion of the proximal interphalangeal joint of the finger was mildly limited and that he experienced discomfort at the limit of this movement. The same applied to the interphalangeal joint of the right thumb and, to a lesser extent, the whole thumb.
109 The plaintiff reported sensation down the radial side of the dorsal of the finger was abnormal from the scar at the mid-level of the finger to the finger’s extremity, but that sensation was normal on the finger’s palmar aspect.
110 The plaintiff said he disliked being asked about the thumbnail on the shortened thumb and said he hid the ugly thumb by keeping it in his pocket or under a table. He felt unhappy when he looked at his right hand, especially when people commented on it, but the abnormal appearance did not trouble him greatly and he had had no psychological treatment.
111 The plaintiff advised he had difficulty lifting heavy timber, which caused pain in his thumb and the finger. He was not troubled by the right hand while operating the automatic saw which cuts timber for the roof trusses.
112 The plaintiff advised writing was difficult, with his wife confirming that situation, and that he could not drive far.
113 Mr Buntine arranged a series of photographs, commenting on them in his report.
114 Mr Buntine noted the plaintiff’s right thumb had been shortened and that his palmar skin had been turned back to replace the greater part of the nail bed. There was a scar on the radial side of the finger. Sensation was abnormal in the most distal distribution of the fine dorsal digital nerve to the radial side of the finger and then in the distribution of the dorsal branch of the finger’s palmar digital nerve.
115 Mr Buntine noticed evidence of diminished use of the right thumb and the finger was seen.
116 The plaintiff had difficulty fully flexing the finger, although Mr Buntine expected it might have been capable of being slightly more at its metacarpophalangeal joint then shown in the photo. Measuring against the left thumb, the right thumb had been shortened by almost 2 centimetres.[73] Also, appearances suggested the left hand was now used slightly more than the right.
[73]This measurement is much higher than other practitioners’ measurements and appears incorrect
117 Mr Buntine concluded some symptoms and complaints were intermittent, while others were continuous.
118 Mr Buntine diagnosed amputation of the extremity of the right thumb with loss of most of the nail bed. There was a small troublesome remnant of the right thumb nail. There was scarring of the finger and some limitation of all the joints of the finger and thumb.
119 The prognosis was for no appreciable further change to occur. Mr Buntine thought the plaintiff was not likely to suffer further injury or harm from engaging in occupational and daily living activities. In his view, the clinical presentation was consistent in all respects with the incident, and it was clear the plaintiff cooperated fully with the examination and no barrier had influenced recovery from the injury. He thought the present condition of the thumb and finger should be accepted as stabilised.
120 In terms of the treatment, Mr Buntine thought the troublesome nail remnant of the thumb could be removed, and if that was performed successfully and satisfactory healing followed, the impairment of the thumb could be slightly lessened. However, there would be difficulties with that surgery and it would require time off work for the plaintiff.[74]
[74]Perhaps the reason the plaintiff said surgery would be costly
121 Mr Buntine allowed an impairment under the AMA Guide for restriction of movement of the finger and the thumb, together with scarring.
Mr Murray Stapleton, plastic and hand surgeon
122 Mr Stapleton initially examined the plaintiff in July this year, and more recently in October.
123 Mr Stapleton noted that in addition to functional incapacity he has, the plaintiff had pain at the tip of the right thumb at the end of the working day and the tip of the thumb was very sensitive. He reported the small joints of the finger and thumb were very stiff in the early morning and improved as the day proceeded. At that stage, he thought the plaintiff had reached maximum medical improvement and no further surgical intervention should be entertained.
124 On the first examination, Mr Stapleton noted the plaintiff had lost a centimetre of digital length involving the thumb. The distal 2 centimetres of the thumb that remains reveals a partial sensory loss in the thumb. Pinch grip was weaker, and there was a reduced capacity to manipulate small objects because of lack of complete sensation in the tip of the finger and thumb. There was reduced flexion capacity of the proximal interphalangeal joint of the finger and the plaintiff had reached maximum medical improvement.
125 On examination, again noting the centimetre of digital length that had been lost, Mr Stapleton also noted that the interphalangeal joint of the thumb flexed from 0 to 30 degrees. The plaintiff had a normal range of movement in the metacarpophalangeal joint. The distal 2 centimetres of the thumb that remained revealed a partial transverse sensory loss, in that over those areas the plaintiff could perceive the difference between sharp and blunt, hot and cold, rough and smooth. The sensation was not the same as the case on the other side.
126 Mr Stapleton diagnosed a traumatic amputation of the distal part of the plaintiff’s right thumb and deep laceration on the thumb side of the right index finger, all consistent with the incident. He considered the plaintiff’s condition had now stabilised and he needed no further treatment.
127 Mr Stapleton then thought, as a consequence of the injury, manipulating of small objects was a problem and there was a diminution of right hand grip. In terms of work, it appeared the plaintiff was doing repetitive work, but he put up with the discomfort associated with what he does. Manual dexterity of the right hand, all things considered, is very much reduced and that will be permanent.
128 Mr Stapleton noted the plaintiff had returned to pre-injury-type duties as a saw operator, as that is the only job he knows. He is prepared to put up with the discomfort associated with day-to-day activities and he is presently working without any restrictions imposed. If work as a saw operator became too much of a problem, Mr Stapleton thought the plaintiff could be a personal care attendant. Working as a warehouse clerk would be a problem because of his lack of English, and his lack of English skills would affect a range of other jobs.
129 Mr Stapleton thought the injury had had a profound effect on the plaintiff’s social, domestic and recreational activities, given it was his dominant hand. He did not consider the plaintiff would be a candidate for developing arthritis in the future.
130 There were similar examination findings following re-examination in October 2018, after which Mr Stapleton confirmed his earlier opinion.
Mr Felix Behan, plastic surgeon
131 Mr Behan examined the plaintiff in July 2017.
132 At that stage, the plaintiff advised that he had pain along the radial side of the finger in the proximity of the proximal interphalangeal joint. He had hyperaesthesia along the radial side indicating radial digital nerve damage, which extended proximally below the suture line along the proximal phalanx, he had cold-weather sensitivity consequent to scar tissue changes resulting from the incident and he had nocturnal insomnia when the pain and sensitivity of the finger caused him to wake regularly at night.
133 Mr Behan noted the irregularity of nail growth and the closure of the amputated tip of the thumb. Power grip was down 3.5 out of 10 right hand and 15 kilograms dynamometer, compared with 25 kilograms on the left.
134 The plaintiff’s power grip on the right side was mainly in the ulnar half of the hand. His pincer grip was particularly poor when picking up nails in an industrial environment.
135 Post-operatively, hand therapy for three months did not give a full resolution of the problem and ceased voluntarily, as the plaintiff’s recovery had been reached.
136 In terms of causation, Mr Behan noted a circular saw jamming, separating two pieces of timber and eventually cutting the radial side of the right index finger.
137 Mr Behan took a number of photographs and commented thereon.
138 Mr Behan thought there would be no advantage in further surgery.
139 Mr Behan certainly considered the plaintiff to have a disability from an industrial-loss point of view.
140 In general terms, Mr Behan noted the plaintiff still suffers pain intermittently at the PIPJ, he has cold-weather sensitivity at the scar line and there are sensory changes along the radial side which wakes him from sleep. The right thumb is always tender, creating a poor pincher grip and limited pen-holding ability. He did not anticipate further improvement and the plaintiff was likely to have ongoing symptoms. The likelihood of arthritic development was unknown, but the possibility of arthritic change could not be discounted in time.
The Defendant’s lay evidence
141 Peter Alexander, director of the defendant company, swore an affidavit on 12 October 2018.
142 The plaintiff initially started working for the defendant on 6 May 2009 as a truss hand. On 23 May 2013, he resigned, advising he was going to work in the restaurant industry. He started work again for the defendant on 12 August 2013 as a saw operator.
143 After the alleged incident, Mr Alexander believed the plaintiff returned to work, doing alternative duties full time on or about 26 May 2015.
144 Dr Scott Tunaley, on 11 June 2015, provided a Certificate of Capacity, setting out the plaintiff was fit for suitable employment from 11 June to 9 July 2015, with the restriction of using his right hand as a guide, but not for gripping, lifting, pulling or straining. He also certified the plaintiff fit to operate the automatic saw if required.
145 Mr Alexander believed this was the last Certificate of Capacity provided to the defendant by the plaintiff. Although he could not recall the precise date, he believed it was shortly after receiving this certificate that the plaintiff returned to his pre-injury duties as a saw operator. He continued these duties full time until he resigned on or about 3 March 2017.
146 Mr Alexander was not aware of any complaints made by the plaintiff of pain in his right hand, or any difficulty performing his duties after he returned to his pre-injury role to the date of his resignation. The plaintiff did not mention to him he was resigning due to any difficulty or concerns performing his work due to his alleged injury, or because of any pain he had in his right hand.
The Defendant’s medical evidence
147 The plaintiff attended Emergency at the Northern Hospital on the said date. It was noted he was a right-handed saw operator who had had his hand injured with an electric saw at work. There was a nail bed injury to the right thumb and a ragged laceration to the radial side of the index finger overlying the PIP joint.
148 On examination, the plaintiff had loss of the entire nail bed to the right thumb. There was a ragged 3-centimetre laceration to the radial side of the index finger at the PIP joint. Tendon function was intact. He had altered sensation to the radial side of the index finger distal to the laceration.
149 The plaintiff’s finger was x-rayed and a fracture was disclosed. He was admitted to theatre and underwent surgery on 29 April 2015. Under local anaesthetic, the wound was debrided, and in the right thumb and the finger, lacerations were explored. The right collateral ligament of the proximal interphalangeal joint was repaired, as were the thumb and index finger lacerations.
150 The plaintiff had not been seen since 28 August 2015, so Professor Brand from the Northern Hospital could not say whether he was incapacitated for his pre-injury employment, but he believed the plaintiff had fully recovered and his condition had stabilised. The plaintiff did not need further referral.
151 On that last visit, the plaintiff had said he had mild discomfort occasionally in the index finger proximal interphalangeal joint, but that he was using his hand for all his duties. He had full active range of movement and a stable joint. There was a mildly raised scar over the PIP. He was also advised to massage the scar and have hand strengthening. He was advised to return if he was worried, but it was felt there was probably no need for further occupational therapy input at that stage. There was no record of any subsequent attendance.
Medico-legal examiners
Mr Damian Ireland, hand surgeon
152 The plaintiff saw Mr Ireland on 31 January 2018.
153 The plaintiff told Mr Ireland of the incident circumstances and subsequent treatment and that he was, then, not receiving any treatment.
154 On examination, the plaintiff complained of pain in the finger over the scar on the radial side of the proximal interphalangeal joint with flexion of the digit. There was no pain at rest, but he experienced pain with cold temperature in that area. He also complained of episodic thumb pulp pain, which occurred about once every two days and lasted for ten minutes.
155 The plaintiff said he had stiffness of both the thumb and the finger. He had reduced grip strength, with loss of grip strength due to the pain in the finger. He advised there was sensory loss of feeling over the radial side of the index finger proximal interphalangeal joint and on both sides of the thumb pulp, which caused difficulty with function picking up small objects, holding a pen and writing for more than five minutes.
156 The plaintiff told Mr Ireland he attended to all normal activities of daily life, but sometimes needed help doing up zips, had difficulty with some household chores, including gardening and cooking, and had difficulty with hand tools, particularly a screwdriver. He drove a manual car without apparent difficulty. He advised he is no longer able to play volleyball.
157 Mr Ireland noted the thumb appeared bulbous, 4 millimetres shorter than the left. The pulp was, however, quite stable. There was a dystrophic nail at the thumb. At the index finger, there was a traumatic scar measuring 12 millimetres, extending from the dorsal to the palmar aspect of the digit at the PIP joint level. The scar was non-tender, but mildly adherent and hypertrophic.
158 The basal joint of the right thumb was normal. Range of motion of the MP joint was measured at zero to 50 degrees, and the interphalangeal joint, zero to 45 degrees. There was diminished sensation measured by a two-point discrimination on both the radial and ulnar aspects of the thumb, extending from the distal joint to the thumb pulp. These measurements were between 7 and 10 millimetres, and the thumb was 4 millimetres shorter than its opposite.
159 At the index finger, there was a normal range of motion at all three joints. The PIP joint was stable to collateral testing and there was no evidence of angular or rotational deformity. Sensation in the index pulp was normal at 6 millimetres on both sides.
160 Mr Ireland diagnosed right thumb dysfunction due to the thumb-tip injury, treated surgically, and resulting in diminished sensation. He thought the plaintiff had compromised function with the right dominant hand due to diminished sensation on both sides of the pulp of the thumb and minor shortening of the thumb.
161 Grip strength was normal on the left, and the variation on the right exceeded 20 per cent, precluding use of grip as a rateable impairment.
162 There was a full range of motion of the injured finger. There was minor restricted motion at the MP and IP joints of the thumb, sensory testing of the finger was normal, and the thumb was compromised on both sides of the pulp. There was no apparent loss of muscle bulk in the right forearm or any detectable loss of significant grip strength.
163 Mr Ireland thought the stated mechanism of injury and subsequent treatment was consistent with the clinical presentation, and there was no evidence of any Adjustment Disorder or functional component.
164 Mr Ireland was subsequently provided with the surveillance report and film.
165 Mr Ireland commented that fine motor movements were not demonstrated in the film, including the ability to pulp pinch between the thumb and index and middle fingers. The plaintiff did state that this affected him in a number of ways, causing him difficulty in picking up small objects from a flat surface, and he had difficulty changing batteries in his daughter’s toys. He also said it made it difficult to do up a zip with his right dominant hand. Mr Ireland had no doubt all those statements were true based on the examination findings.
166 As demonstrated in the film, the plaintiff had no difficulty with normal lifting and carrying weights, as demonstrated by his ability to lift large containers of insulation batts and to tie them down with tension straps on his delivery truck. Mr Ireland thought examination findings did not reveal any evidence of disuse atrophy on the right dominant side, which attested to the plaintiff’s normal lifting and carrying capacity.
167 Mr Ireland comment that grip strength had not been affected, as demonstrated in the videos. He doubted the plaintiff’s current job installing insulation batts was any less arduous than his previous work at the time of injury in a factory building timber trusses.
Dr Michael Bloom, occupational physician
168 Dr Bloom examined the plaintiff in March 2018.
169 The plaintiff said that the condition of his right hand had stabilised and had not improved over the past year or so. He continued to experience activity-dependent pain affecting the dorsal aspect of the right index finger at the PIP joint, and also sensitivity and pain affecting the tip of his right thumb. He reported being embarrassed about the deformity of his right thumbnail. He thought about it and dwelt on his injury quite a lot. He experienced difficulty in flexing the right index finger and thumb and, therefore, his grip strength in his hand was weaker than the left.
170 The plaintiff reported experiencing exacerbation of symptoms after any prolonged use of his right hand. He did some lighter housework, and could carry loads up to 5 kilograms in his right hand.
171 Other than occasional Panadol the plaintiff might take at night up to three times a week, there was no other current treatment.
172 On examination, Dr Bloom noted the 2.5-centimetre scar at the radial aspect to the finger. There was slight shortening of the distal phalanx of the right thumb compared to the left, with deformity and shortening of the thumb nail. Grip strength on the right was quite reasonable when the plaintiff was engaged, but slightly lighter than the left hand.
173 Active inflexion of the interphalangeal joint of the right thumb was limited to 60 degrees, although passive range of motion was within normal limits compared to the left, but caused apparent discomfort. Extension was full. The active range of motion of the joints of the finger were measured with flexion of the PIP joint measured at 65 degrees and also some restriction in the active range of active flexion of the DIP joint; however, again, the passive range of motion of both joints was within normal limits compared to the left hand, and thus the range of active range of movement was limited by discomfort/pain rather than joint stiffness. There was altered sensation and hypersensitivity about the scar on the finger and also altered sensation and hypersensitivity over the radial and distal aspects of the distal phalanx of the right thumb.
174 Although there was no doubting that there was some minor dysfunction of the plaintiff’s right thumb and finger secondary to the injury, Dr Bloom gained the impression the plaintiff displayed avoidant behaviour that was possibly over-limiting his use of that hand. He thought the functioning of the plaintiff’s hand was compromised to a mild to moderate extent, both for fine activities as well as heavy gripping activities. From a purely physical perspective, the injuries have left a degree of permanent impairment that does impact the plaintiff’s capacity for fine and heavy function of his right hand to a relatively minor degree.
175 Taking into consideration only the physical aspects of the injury, with resulting mild to moderate impairment, Dr Bloom considered the plaintiff does not have the capacity to undertake unrestricted pre-injury-type work duties that require repetitive manual handling, but he does have the capacity for suitable duties that are less physically demanding. Furthermore, he thought it very likely the plaintiff has a relatively good range of transferable skills.
176 Dr Bloom was provided with the surveillance video.
177 Dr Bloom noted that the plaintiff was seen over eight minutes holding and using a relatively large power drill in his right hand on 29 October 2017, and two days later he was seen re-arranging insulation rolls positioned at the rear of a flatbed truck and using webbing fastening straps to secure the load.
178 Dr Bloom noted that in that activity, the plaintiff was seen to be gripping firmly, sustainably and repetitively with both hands, including the right, and he was also tightening the straps using a ratchet handle, operated using his right hand, without apparent difficultly.
179 Dr Bloom thought of note was that, throughout the footage, the plaintiff depicted no apparent hesitation in the full use of the right hand and was seen to repetitively use the right hand to firmly or heavily grip various objects using all four digits and his thumb. He noted, on many occasions the plaintiff’s right index finger was fully flexed while gripping various loads.
180 Dr Bloom commented that the plaintiff’s presentation in March 2018, on examination, was in considerable contrast to the range of activities, particularly those on 31 October 2017.
181 Given the plaintiff’s increased manual-handling capacity, Dr Bloom would suggest there are very few jobs that he could not undertake safely and sustainably. He would certainly have the capacity to undertake jobs and tasks that were of at least a moderate level of physical demand.
182 Having seen the surveillance film, Dr Bloom now believed the plaintiff has more or less full and unrestricted use of his right hand for all light and medium physically demanding occupations and by undertaking any occupations within that sort of description, he would not be at risk of further injury. Furthermore, regular use of his hand was likely to prove therapeutic.
Surveillance summary
183 Exhibit 1 was 17 minutes and 25 seconds of surveillance film taken of the plaintiff on 29 October and 31 October 2017.
184 On the first date, the plaintiff was shown at the front of a house holding a bucket. He appeared to be washing something. He was later shown using a small power drill in his right hand for about 8 minutes, drilling something into the outside of the house.
185 On 31 October 2017, the plaintiff was shown at work in the vicinity of No Gap. At times he rearranged insulation rolls that were on the back of a truck. He fastened straps over the rolls using a ratchet.
Overview
186 The application was brought pursuant to subparagraph (a) only. There was no subparagraph (b) application for disfigurement.[75]
[75]T1
187 There is no dispute that in the incident the plaintiff suffered a traumatic injury to his thumb and the finger,[76] suffering an amputation injury to part of his right thumb and a laceration injury to the medial side of the finger.
[76]T96
188 The plaintiff’s claim for weekly payments was accepted, as was his impairment claim in relation to injuries to his right thumb, index finger, and scarring.[77]
[77]Letter from Xchanging 11 November 2016
189 As counsel for the defendant conceded, there was no medical controversy[78] and there were no issues with causation.[79] The issue is simply one of range.
[78]T2
[79]T9
Credit
190 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[80]
“… 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.”
[80](2010) 31 VR 1 at paragraphs [11] and [12]
191 Counsel for the defendant indicated the plaintiff’s credit is not really an issue, although it was submitted the plaintiff was hesitant to admit an ability to flex the finger when the film showed him clearly doing so. Reliance was placed on the film as part of the “matrix of the evidence” of the plaintiff’s retained capacity to use his hand.[81]
[81]T106
192 Further, reliance was placed on Dr Bloom’s view that there were inconsistencies between what was shown on the film and his findings on clinical examination.[82] It was submitted the film did not show grip strength being affected.[83] The plaintiff’s evidence that the finger was sticking out in the film should be queried.[84] It was submitted the film demonstrated the plaintiff using his right hand in an unrestricted way for what would be fairly heavy manual tasks.[85]
[82]T103
[83]T104
[84]T105
[85]T106
193 Further, it was submitted there was some inconsistency in the plaintiff’s evidence why he ceased work with No Gap.[86]
[86]T106
194 Counsel for the plaintiff responded there cannot be any attack on the plaintiff’s credit, and “in a sense there is not, it is just on what he really can and cannot do. In terms of attempting to get on with it and keep going, he is in the high stoic category.”[87]
[87]T124
195 It was submitted the plaintiff gave a detailed explanation of each of the movements he was shown performing in the film and how he was using the finger during that time.[88] He has been absolutely open about what he is doing, how hard he is trying and whether or not he is able to cope.[89]
[88]T124
[89]T130
196 Reliance was placed on Mr Ireland’s comments that there was nothing really in the film that changed his view.[90] Mr Behan, Mr Buntine and Mr Stapleton all accept the plaintiff continues to suffer genuine restrictions as a result of his right hand injury.
[90]T124
197 I accept the plaintiff is a truthful witness who did not overstate his level of disability and explained clearly what he was shown doing on film. In my view, as Mr Ireland also opined, the plaintiff was not shown on film undertaking any activity inconsistent with his evidence as to his ongoing restrictions and limitations. If anything, when using the power drill, he used his middle rather than index finger. When securing the batts on the back of the truck, he used his whole right hand.
198 Dr Bloom is the only medical practitioner who thought the plaintiff displayed avoidant behaviour possibly somewhat over limiting the use of his hand.
199 Further, I accept the plaintiff is somewhat of a stoic, as his counsel submitted, continuing to work with a significant disability in his right hand.
200 As Nettle JA noted in Dwyer v Calco Timbers Pty Ltd (No 2),[91] 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.”
[91][2008] VSCA 260
Pain
201 The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about his pain both in court and to doctors.[92]
[92]Haden Engineering Pty Ltd v McKinnon (supra) per Maxwell P
202 In his recent affidavit, the plaintiff described the pain at the top of his thumb and across the scar on the finger as a numbness and pulling-type sensation that can feel tight. He feels the pain increases in winter. He suffers pain whilst at work and when he comes home after a day of activity.
203 Complaints to recent medical examiners are in similar terms with sensitivity at the top of the thumb and pain in that area both at work and thereafter. The thumb and finger joint are stiff and movement of the finger is restricted. Right grip strength is weaker.
204 Whilst the plaintiff’s pain is not constant or excruciating[93] and was described by him in June 2015 when he last attended the Northern Hospital as “mild discomfort,” I accept that both his thumb and the finger continue to cause the problems he has described. Such problems are unlikely to improve and are permanent.
[93]T108
Restriction of movement and weakness
205 Whilst nowhere in the medical evidence is the plaintiff described as having a clawed finger or thumb,[94] I accept that there is some restriction in the ability to move those digits which is an important factor with a manual handling worker.[95]
[94]T99
[95]T125
206 Mr Ireland is the only examiner who found that in the index finger there was a normal range of motion at all three joints; however, he found there was minor restriction of the thumb.[96]
[96]T100
207 Dr Bloom found restricted movement of the finger and thumb limited by pain and discomfort rather than joint stiffness.[97] Mr Buntine thought the plaintiff had difficulty flexing the finger but that he may be able to flex more than shown on the photograph taken at the examination; however, he allowed an impairment rating for restricted movement of both the finger and the thumb. Mr Stapleton found restricted movement of both digits.
[97]T101
208 A number of examiners found altered sensation in the thumb and finger. Dr Bloom made this finding in relation to both, Mr Ireland and Mr Stapleton the thumb only and Mr Buntine and Mr Behan the finger only.
209 Whilst Dr Bloom, before seeing the film, thought there was likely some very minor degree of dysfunction of the thumb and finger before the film, and less thereafter, his view is not shared by the other examiners.
210 In 2017, Mr Behan did not anticipate further improvement and the plaintiff was likely to have ongoing symptoms.[98]
[98]T128
211 Mr Buntine thought the plaintiff would have problems with basic activities[99] and that the clinical presentation was consistent.[100]
[99]T125
[100]T125
212 Mr Stapleton concluded manual dexterity of the right hand, all things considered, is very much reduced and that will be permanent. Further, he thought the injury had had a profound effect on the plaintiff’s social, domestic and recreational activities, given it was his dominant hand.[101]
[101]T126-8
213 Mr Ireland thought the plaintiff had compromised function with the right dominant hand due to diminished sensation on both sides of the pulp of the thumb and minor shortening of the thumb. Having seen the film, he had no doubt the plaintiff had the range of difficulties he described with fine motor movements based on his examination findings.
Treatment
214 Counsel for the defendant submitted there was a very conspicuous absence of medical evidence from any treater, save for Professor Brand at the Northern Hospital. There is no report from a treating hand surgeon, a hand therapist or any general practitioner.[102]
[102]T
215 The notes from the Clinic that cover the last twelve months refer to a number of other unrelated conditions but do not have any mention of treatment for hand and thumb symptoms. There is only the note of an attendance on 14 July 2017 where Mr Behan’s report is discussed and the plaintiff underwent an x-ray subsequent thereto.[103]
[103]T111
216 The plaintiff’s treatment to date has, after the initial surgery, involved hand therapy and then medication, prescribed until two years ago, and, of more recent times, over-the-counter Panadol. The plaintiff explained that he is unable to take stronger painkillers because of the side effects thereof.
217 Whilst there was some criticism of the lack of medical attendances since June 2017, the plaintiff cannot be criticised for not having further treatment because none has been suggested.[104]
[104]T126
218 Whilst Mr Buntine mentioned revision surgery, he noted this would require further time off work and may explain the plaintiff’s comments he has not taken this course as it would be too expensive.
Consequences
219 The defendant’s case in a “nutshell” is the plaintiff’s impairment, whilst it has affected his life, it is not at least very considerable and more than significant or marked. He has adapted or modified some activities. He has retained a capacity to work in a job equivalent to his pre-injury work and also taken on a second aged-care job. It might be said he is stoic but what is he being stoic about? There are only some residual symptoms, it simply cannot meet the very high hurdle of “at least very considerable”.[105]
[105]T107
220 It was submitted the circumstances of this case were similar to Cross v Ridley Agriproducts Pty Ltd[106] where the application was dismissed.
[106][2014] VCC 616
221 Further, while he might have some difficulties with buttons and clothes, the plaintiff was still able to dress himself. He has just had to make some adaptions to his normal life, it is not a case where he has a useless right hand.[107]
[107]T108
222 It was submitted there were some residual symptoms that are certainly a nuisance and would be unpleasant, with numbness a pulling or stretching sensation after heavy work but they are not to the degree that the plaintiff needs to go to the doctor and complain about them or take anything other than Panadol.[108]
[108]T109
223 Further, the plaintiff’s wife is very clear that he is the primary carer for the daughter.[109] He still does cooking.[110] He does things but does them slowly, like household tasks or mowing.[111] While the plaintiff’s wife deposes that the plaintiff has problems with home maintenance, he is using a power tool in the film. In terms of leisure activities, the plaintiff’s involvement in volley ball was social and he did not play competitively.[112]
[109]T117
[110]T118
[111]T116
[112]T119
224 Unlike in Cross[113] where the application was dismissed, the plaintiff’s right hand impairment involves two digits, both his dominant right thumb and also the finger.
[113]ibid
225 I accept as a result of his injury, the function of the plaintiff’s right hand is compromised due to diminished sensation on both sides of the pup of the thumb and the minor shortening of the thumb as Mr Ireland described. The plaintiff’s pincer grip is poor. A number of examiners have confirmed the plaintiff’s right grip is weaker. He lacks manual dexterity and has problems with fine hand movements, as Mr Ireland and the majority of other examiners confirmed.
226 The plaintiff is limited in the amount of gardening tasks he can now do, and requires the assistance of family members. He is able to undertake domestic tasks but now does so at his own pace. His ability to drive for long periods is limited by pain.
227 The plaintiff’s wife confirmed the plaintiff’s various problems with domestic activities in her affidavit. Her evidence was not challenged.
228 The plaintiff has to be careful picking up his daughter and will be restricted later when she gets older playing freely with her
229 Although he has not been prescribed sleeping tablets, it was conceded the plaintiff has ongoing problems with sleep, being woken by pain.[114] Further, his hand injury causes difficulties in his intimate relationship with his wife.
[114]T110
Work
230 Counsel for the defendant submitted any employment consequences were not “serious”.
231 In this regard, Dr Bloom thought there were very few jobs the plaintiff could not undertake safely and sustainably.[115] There is the retained capacity for work in jobs including driving a truck and Uber and a forklift.[116]
[115]T106
[116]T107
232 It was submitted the aged-care work would require some fine dexterity, assisting old people in activities of daily living.[117]
[117]T108
233 Further, the plaintiff’s symptoms are not significant enough for him to take time off work and he is working long hours, six or seven days a week.[118] In those circumstances, it was submitted there was nothing for the plaintiff to be stoic about.[119]
[118]T109
[119]T115
234 In response, counsel for the plaintiff submitted the impact on the plaintiff’s employment was a serious consequence, having had to leave the original employer when he had to do extra work without the assistance of a co-worker. The plaintiff then tried a number of jobs which involved manual handling and or driving and had difficulty with them and these periods of employment were relatively short.[120]
[120]T121
235 The plaintiff has obtained work but struggled, finding lifting and gripping of insulation batts too difficult to continue with. He basically copes with things in aged-care. For two years he had not been able to find a job he can do pain free and has tried many things. It was submitted he is a stoic.[121]
[121]See Dwyer v Calco Timbers Pty Ltd (No 2) (supra)
236 It was submitted the effect on employment was a very significant aspect in the case. There was pain at work and after work[122] and the plaintiff was often woken during the night with pain.
[122]T123
237 As a result of his pain and resultant physical restrictions, I accept the plaintiff has been unable to return to heavy unrestricted work since the incident. I consider this to be a serious consequence for a right hand dominant man with a history of only manual work.
238 After the incident, the plaintiff went back to lighter duties with the defendant. Although the last certificate was provided, in June 2015, Dr Tunaley allowed him to use his right hand as a guide but not for other functions.
239 The plaintiff performs similar duties with his current employer to those undertaken with the defendant post injury; however, he is unable to do the full range of duties. He had to leave his job at No Gap because he was unable to do all the duties required of him at the requisite pace because of his injury. He tried running his own business but not could do the actual installing work required because of his injury, so ceased trading after a very short time.
240 The plaintiff complains that after a full day at work that he gets home and his hand is very tired. He can still perform a range of activities using hand tools, but has to adjust his grip to do them.
241 Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s right hand impairment, as a result of his problems with his thumb and the finger, are more than significant or marked and satisfy the statutory test of “serious”.
242 Accordingly, I grant leave to bring proceedings pursuant to sub‑paragraph (a).
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