Graham v Qantas Airways limited
[2009] VCC 537
•18 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-02564
| GEOFF GRAHAM | Plaintiff |
| v | |
| QANTAS AIRWAYS LIMITED | First Defendant |
| and | |
| WORKSAFE AUSTRALIA | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 May 2009 |
| DATE OF JUDGMENT: | 18 May 2009 |
| CASE MAY BE CITED AS: | Graham v Qantas Airways limited |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0537 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 – plaintiff suffered injury to his left little finger resulting in an impairment of the function of his left hand – whether the consequences of the pain and suffering consequences of the injury were at least very considerable: section 134AB(c)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Ruddle | Nowicki Carbone |
| For the Defendants | Mr S Smith | Sparke Helmore |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant on 8 April 2006.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering.
3 Mr M Ruddle of Counsel appeared for the plaintiff, and Mr S Smith of Counsel appeared for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the use of the little finger on his left hand. The following evidence was adduced during the hearing:
• The plaintiff tendered his Court Book ("PCB") pages 8-29 and 34-55 and from the defendants’ Court Book ("DCB") pages 4-9 and 31a-34: Exhibit A • The defendant tendered its Court Book pages 1-3; 12-21; 28-30; 45-51 and 187-212: Exhibit 1. 5 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
6 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(d)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the present case.
(f)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(g)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.
[4] (1994) 1 VR 436
7 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Incident
8 The plaintiff was born on 5 October 1965. He is now forty-three years of age. He completed Year 10 and subsequently entered the workforce. He commenced working for the first defendant as an airline services operator on 3 December 1986.
9 The plaintiff was essentially involved in cleaning aircraft which he also described as a cabin dressing, which I understand involved cleaning the internal passenger area of aircraft.
10 On 8 April 2006, the plaintiff was ascending a ladder in order to board an aircraft so that he could clean it. He tripped and fell forward. He was unable to grab the safety rail of the ladder, with the result that he struck his left little finger on the rungs of the ladder.
The Plaintiff's Prior Relevant Injuries
11 The plaintiff suffered injury to his left little finger on the following previous occasions:
ƒ In 1989 the plaintiff suffered dislocation of his left little finger which
required relocation by a medical practitioner.
ƒ In 1994 the plaintiff suffered injury to both hands. ƒ In 1996 the plaintiff tore a ligament and dislocated his left little finger which required surgery.[5][5] PCB 9-10
12 The plaintiff made a claim for compensation as a result of suffering the foregoing injuries. He was referred to Ms Lenaghan, surgeon, by the relevant compensation insurer for an assessment of those injuries.
13 Ms Lenaghan examined the plaintiff on 6 September 1995,[6] 13 June 1996[7] and 11 February 1997.[8]
[6] DCB 1
[7] DCB 4
[8] DCB 7
14 It is clear from the history which Ms Lenaghan obtained from the plaintiff on the first occasion she examined him that the injury which the plaintiff described as occurring in 1996 actually occurred at around Christmas 1993, when he suffered an injury to his left little finger which resulted in a dislocation and torn ligaments which required surgical repair.[9]
[9] DCB 1
15 Mr Smith spent quite some time cross-examining the plaintiff about the nature and extent of the injuries which he suffered to his left little finger, and the complaints he made to Ms Lenaghan on the three occasions on which she examined him for the purpose of ultimately submitting that the plaintiff had consequences of his previous injuries which were similar, if not the same, as the complaints he now makes.
16 It is clear that after Ms Lenaghan examined the plaintiff on 11 February 1997, the plaintiff had completely recovered from the injury to his left little finger. She recorded that the plaintiff told her the following:
"Mr Graham told me he has no physical problem with his hands or arms, apart from a bit of a twinge in the left index finger metacarpophalangeal joint (at the base of the finger). He attributed this to doing resisted exercises to build up the strength in his left hand …
Commenting further, he said ‘there is no problem with the left hand. I get little twinges in it occasionally, but I get them doing the dishes.’ He said his left hand and left little finger don't cause any trouble with his present Commissionaire job."[10]
[10] DCB 8
17 Ms Lenaghan examined the plaintiff and found a full range of movement and a strong grip in the plaintiff’s left hand which she observed to be slightly stronger than his right hand grip. She concluded that the plaintiff had recovered from the work-related injuries to his left hand and wrist.[11]
[11] DCB 9
18 The plaintiff subsequently worked for the first defendant undertaking normal duties until the subject incident occurred on 8 April 2006.
19 On the basis of the foregoing, I find that the plaintiff did suffer an injury to his left little finger which required treatment, but by the time he last saw Ms Lenaghan he had recovered to the extent that the loss of function in his left little finger was insignificant, and I am fortified in reaching that conclusion because the plaintiff continued working after he last saw Ms Lenaghan for the next nine years without incident and without any interference to his work and general activities.
The Medical Treatment
20 The plaintiff first attended the John Faulkner Hospital where x-rays were taken. He was provided with painkilling medication and discharged.
21 The plaintiff was referred to Mr Berger, orthopaedic surgeon, by Dr Bashir, general practitioner.[12] Mr Berger first saw the plaintiff on 12 April 2006, and at a time when Mr Berger noted that the plaintiff’s left little finger was bandaged, bruised and deformed. An x-ray revealed a displaced condylar fracture of the proximal phalanx.
[12] PCB 47-48
22 On 13 April 2006, Mr Berger undertook an open reduction and internal fixation of the fracture. He observed that the fracture was quite displaced and required reduction and internal fixation with two internal fragmentary screws.
23 On 7 September 2006, Mr Berger surgically removed the screws which had appeared prominent and undertook a tenolysis which increased flexion of the proximal interphalangeal joint, however the distal joint remained stiff.
24 On review on 7 December 2006, Mr Berger observed that the plaintiff had developed a swan neck deformity due to a tendon imbalance. On 1 February 2007, Mr Berger performed a lateral band tendon transfer to correct the deformity.
25 Mr Berger subsequently reviewed the plaintiff on 22 March 2007. On that occasion he noted good flexion in the left finger, some mild numbness across the scar, and swelling. He advised the plaintiff to continue with hand therapy.
26 At the time Mr Berger provided a medical report dated 23 March 2009,[13] he had not seen the plaintiff since 22 March 2007. With that background he expressed the opinion that any residual impairment suffered by the plaintiff would probably be permanent, and he considered that the plaintiff was capable of performing most normal regular full or part-time activities, although he would have difficulty with power and grip caused by some slight stiffness in the left little finger.
[13] PCB 44-46
27 The plaintiff has been treated by Dr Bashir, Dr Cruz, general practitioner,[14] and by Dr Brown, general practitioner.[15] Dr Brown is the plaintiff's current treating general practitioner.
[14] PCB 35-36
[15] PCB 49-52
28 The upshot of the opinions of the general practitioners is that the plaintiff was probably unfit to undertake his pre-injury work, but able to undertake alternative work.
29 The plaintiff was able to return to full-time work in April 2006. At first he returned to his pre-injury work with restrictions, which the plaintiff said effectively reduced his pre-injury work to a negligible amount of work.[16] He was eventually able to obtain a job as a toilet truck operator some time in April 2007.[17] He continued in that employment until some time in 2008, when he lost his licence to drive a motor vehicle which led to the first defendant dismissing him.
[16] Transcript 25
[17] PCB 18
30 The plaintiff said that he was able to cope with the work as a toilet truck operator which did not require him to put his left hand and arm to much use. Essentially he operated the truck with his dominant right hand and arm. On occasions when he was required to support a hose from the truck he did so by supporting it on his left forearm rather than manually gripping or supporting the hose with his left hand.[18]
[18] Transcript 26-27
31 The plaintiff conceded during cross-examination that if it were not for his loss of licence he would still be capable of operating the truck and performing other work, such as operating a forklift.[19]
[19] Transcript 27-28
The Medical Evidence
32 Mr Stapleton, plastic and hand surgeon, examined the plaintiff on 26 July 2006[20] and 31 January 2008.[21]
[20] DCB 12
[21] DCB 15
33 After examining the plaintiff on the second occasion, Mr Stapleton was of the opinion that the plaintiff's presenting symptoms arose as a consequence of the incident.[22]
[22] DCB 21
34 Mr Stapleton was of the opinion that there appeared to be a lack of articular cartilage which he considered to have been caused by the first dislocation suffered by the plaintiff and probably aggravated by the incident. Furthermore, he considered that the lack of articular cartilage had caused post-traumatic arthritis which has impaired the flexion capacity of the joint.
35 Mr Stapleton was of the opinion that the loss of function would not create difficulty for the plaintiff in fastening buttons or zips, dressing, sleeping or performing household duties or playing computer games. He did consider that the loss of function would create difficulties with fine motor skills and his power in grip. He referred to the plaintiff’s left little finger being held out in ulnar deviation which caused him problems at home and at work when he was required to put his left hand into confined spaces, and he specifically referred to difficulty which the plaintiff would experience fixing cars and engaging in activities where he needed to use his left little finger.[23]
[23] DCB 16-17
36 Mr Hooper, orthopaedic surgeon, examined the plaintiff on 19 March 2007. On examination, he found that the plaintiff’s left little finger sat in an abducted position. He was of the opinion that the plaintiff would be left with a permanent disability and stiffness and discomfort in his left little finger.[24]
[24] DCB 23-24
37 Mr Jones, orthopaedic surgeon examined the plaintiff on 24 October 2007. On examination he found the plaintiff’s left little finger to be stiff and to be chronically deviated to the ulnar side. He was of the opinion that the plaintiff had a significant deformity of his left little finger. By inference he considered that the injury to the plaintiff’s left little finger impaired the function of the left hand because he suggested that the plaintiff consider an amputation of his left little finger to improve the function of his left hand.[25]
[25] DCB 29
38 Mr Battlay, surgeon, examined the plaintiff on 14 March 2008. On examination, he found that the joint was hyper extended. He was of the opinion that the plaintiff had a permanent deformity of his left little finger. He did not consider that amputation of the little finger was advisable.[26]
[26] DCB 33-34
39 Mr Myers, vascular surgeon, examined the plaintiff on 25 September 2008. He was of the opinion that the plaintiff should consider amputation of his left little finger because it would result in a marked reduction in pain and improved function of his hand, however, he suggested that he would require a more expert opinion from a hand specialist. He was also of the opinion that the plaintiff’s use of his left hand would be markedly restricted because of the injury and that he was not fit to his pre-injury work.
40 Mr Ireland, orthopaedic surgeon, examined the plaintiff on 11 February 2009. On examination, he found ulnar deviation in the plaintiff’s left little finger and discomfort on adduction. He was of the opinion that the plaintiff had developed mild arthritis. He commented upon what he saw as a discrepancy between the objective physical findings and the severity of the subjective complaints made by the plaintiff. Ultimately he was of the opinion that the plaintiff was capable of his pre-injury employment on a full-time basis.[27]
[27] DCB 47-50
41 What is reasonably clear from the medical opinions which I have summarised above is that all of the medical practitioners (with the exception of Mr Ireland) who have examined the plaintiff have concluded that the injury suffered by the plaintiff as a result of the incident is the cause of his symptoms and loss of function that he presently experiences, and that the impairment of function experienced by the plaintiff is permanent.
42 Mr Stapleton is the only medical practitioner who dealt with the plaintiff's capacity to undertake manipulative functions using his left little finger and left hand, proposing that there were some tasks of that kind which the plaintiff would be able to perform and others he would not be able to perform.
43 Mr Stapleton and Mr Ireland were of the opinion that the prior dislocation injury probably caused changes in the plaintiff’s left little finger predisposing him to arthritis and that the incident has resulted in an aggravation of the underlying arthritic changes.
44 Mr Ireland is the only medical practitioner who doubts the veracity of the plaintiff and the only one who found significant discrepancy between objective physical findings and the severity of the subjective complaints made by the plaintiff. Mr Ireland is also the only medical practitioner who unequivocally states that the plaintiff is fit for his pre-injury work.
45 I am not prepared to accept the opinion of Mr Ireland because it would mean I would have to reject the opinions of all of the other medical practitioners. I see no good reason why I should take that dramatic step. Furthermore, I make no finding whether the plaintiff would be better off having an amputation of his little finger. It seems to me that it has been put forward as a treatment option for the pain he experiences, but not one which would return the plaintiff to a better level of function in his left hand.
Serious Injury
46 It occurs to me that there can be little doubt that the plaintiff suffered an initially severe injury to his left little finger as a result of the incident which required surgical treatment. Equally there can be little doubt that the injury impairs the function of the plaintiff’s left little finger and his left hand and that the impairment is permanent. The question that remains to be determined is whether the impairment has consequences for the plaintiff which are at least very considerable.
47 The plaintiff is now forty-three years of age. He said that he suffers a number of consequences of the impairment of the function of his left little finger and hand described in his first affidavit sworn 17 October 2007[28] and confirmed in his subsequent affidavits sworn 19 February 2007[29] and 2 April 2009.[30]
[28] PCB 8-15
[29] PCB 16-19
[30] PCB 20-29
48 The plaintiff says that his hand feels sore and stiff and that he often has sensations of shooting pain in his left little finger and pain at the top of his left hand. His little finger sticks out at an awkward angle. It gets caught when inserted into objects. It is sensitive to cold weather. The pain in it is worse at night. He experiences sensations of tingling, pins and needles in his left little finger and hand. It is sensitive and if knocked will result in sharp pain. He has difficulty lifting, and manipulating small objects, such as fastening buttons or zips.
49 In the course of his oral evidence, the plaintiff also described having difficulty catching a ball with his left hand, changing the clutch on a motorcycle with his left hand[31]and having pain extending down his left little finger which extends across to the centre of the palm of his hand and down as far as his wrist, with pain sometimes travelling up his forearm.[32] He also described the pain as constant and always there.
[31] Transcript 8
[32] Transcript 8-9
50 He has difficulty engaging in activities which require bilateral manual operations such as, cooking, cleaning, hanging out washing, peeling vegetables, using cutlery, using tools, operating the keyboard, and similar manual activities.[33]
[33] Transcript 43
51 He uses Panadol, Panadeine Forte, Codalgin Forte and Nurofen for pain relief. He estimates he is taking two Panadeine Forte in the morning, two in the evening and four Nurofen each day.
52 Mr Smith cross-examined the plaintiff at length, essentially putting to the plaintiff that the complaints of pain and loss of function which he now makes are excessive and exaggerated.
53 Some of the cross-examination centred around what the plaintiff said in paragraph 29 of his first affidavit[34] and the way in which the plaintiff chose to describe the degree to which he is unable to engage in the activities described in that paragraph. There was little that I could see between the plaintiff's oral evidence and the way in which he chose to express himself in his affidavits which has led me to conclude that he has been careless in the way he has expressed himself in his affidavits, and certainly nothing which has led me to conclude that his description of the pain and loss of function he described is excessive or exaggerated.
[34] PCB 13
54 I am aided in reaching that conclusion because all of the medical practitioners who have examined the plaintiff and who have been asked to express an opinion regarding the function of the plaintiff’s left little finger have concluded that there is an apparent deformity present and probably interference with the plaintiff's capacity to use not only his left little finger, but also his left hand normally.
55 I accept that the injury to the plaintiff’s left little finger affects the function of his left hand and that he has intermittent pain extending up his left forearm. I accept that the plaintiff is unfit for work which involves the full, free and unrestricted use of his left hand, and that would probably involve the work which he was accustomed to undertaking pre-injury.
56 I accept that the plaintiff is fit to undertake a wide range of forms of work, including the driving job he was given post-injury and also alternative employment, such as forklift driving on a full-time basis. The plaintiff conceded as much.
57 Essentially the plaintiff's case comes down to the fact that he is unable to undertake manual operations with his left little finger and hand, he has constant pain and requires painkilling medication of the kind and in the quantities referred to above. He is now in a situation where his work opportunities are limited and he no longer has the full, free and unrestricted use of his left little finger and hand.
58 In the circumstances, I find that the plaintiff suffered an injury to his left little finger which continues to cause him pain in his left little finger extending into the palm of his hand and down as far as his wrist, with intermittent pain in his left foreman which has resulted in an impairment of function of his left hand. The degree of the pain which I accept he suffers and the consequences for him as I have found them to be, together with his resort to the use of a reasonably large amount of medication daily, leave me with the strong impression that the consequences to the plaintiff are at the least very considerable when the relevant comparison is made as I have described it in my discussion of the statutory scheme.
Conclusion
59 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of his employment with the first defendant on 8 April 2006.
60 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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