Grant v D & R Henderson Pty Ltd
[2009] VSCA 15
•20 February 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3781 of 2008
| PAUL GRANT | |
| Appellant | |
| v | |
| D & R HENDERSON PTY LTD | Respondent |
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JUDGES: | ASHLEY, REDLICH and KELLAM JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 February 2009 | |
DATE OF JUDGMENT: | 12 February 2009 | |
DATE OF REASONS FOR JUDGMENT: | 20 February 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 15 | |
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ACCIDENT COMPENSATION – Application under s 134AB(16)(b), Accident Compensation Act 1985 - Whether serious injury established – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S R McCredie | Lennon Mazzeo |
| For the Respondent | Mr M F Wheelahan SC With Mr S A O’Meara | Minter Ellison |
ASHLEY JA:
I have read in draft the reasons for judgment of Kellam JA. They comprehensively explain why I joined in the order dismissing Mr Grant’s appeal.
REDLICH JA:
For the reasons given by Kellam JA which I have read in draft I joined in the order made on 12 February 2009 dismissing the appeal.
KELLAM JA:
On 15 May 2008 a judge of the County Court refused an application brought by the appellant for leave to bring proceedings for the recovery of damages pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 in respect of an injury affecting his right forearm.
The appellant appealed, the appeal being heard on 12 February 2009. Upon the conclusion of the hearing of the appeal the Court ordered that the appeal be dismissed. These are my reasons for joining in that order.
The work related injury
On 20 March 2000, and in the course of his employment as a machine operator with the respondent, the appellant’s right arm became caught between two rollers of a laminating machine which he was then operating. He was taken to the Western General Hospital where he was examined and, notwithstanding that he had no fractures, his right arm was placed in a plaster cast. He returned to work on 22 March 2000 and worked his usual shift. However, it appears that thereafter his duties were modified until he resigned his employment in July of that year.
The medical evidence
The appellant consulted a general practitioner, Dr Wilson, on 3 April 2000.
The examination on that occasion revealed bruising around the base of the right thumb of the appellant together with marked restriction in flexion due to pain in his wrist. Dr Wilson referred him to a plastic surgeon, Mr Rubenstein in April 2000. According to Dr Wilson, Mr Rubenstein reported that the appellant suffered a soft tissue injury with oedema. No report from Mr Rubenstein was placed before his Honour. The appellant was then referred to an orthopaedic surgeon, Mr Bernard Lynch, who in June 2000 referred him to a hand therapist, Ms Karen Fitt. No report from Mr Lynch was placed before his Honour but Ms Fitt provided a report dated 3 October 2002 in which she described the massage and other treatment provided by her to the appellant. She reported a significant increase in grip strength of the appellant during the period of her treatment up until September 2000. She also noted that a strengthening and gym programme was commenced by the appellant and as at 20 September 2000 the appellant was ‘performing well in the gymnasium and increasing his loads regularly’. However, in the course of giving his evidence at trial, the appellant denied ever having attended a gymnasium or that his grip strength increased whilst attending Ms Fitt.
In September 2000 the appellant was referred to orthopaedic surgeon, Mr John Salmon, who carried out surgical exploration in December 2000. No abnormal findings were observed apart from some ‘inflammatory changes around the extensor tendons to the thumb’. Tenosynovectomy was performed.
In August 2000 orthopaedic surgeon, Mr Clive Jones, examined the appellant. He found the appearance of the appellant’s right hand to be normal with no swelling. The appellant had a normal range of movement of all fingers and at his wrist. Abnormality was restricted to his thumb, where the metacarpo phalangeal joint was found to be a ‘little stiff’. Mr Jones did not believe the injury to be significant nor did he foresee any impediment to long term recovery of the appellant. Mr Jones saw the appellant again in August of 2001, following the surgical intervention of Mr Salmon. The complaints of the appellant had increased following the surgery. Mr Jones reported that ‘it would seem that a chronic pain syndrome is developing, with complaints of reduced use of the right hand which does not appear to have a major physical basis’.
In the same month that Mr Jones reached that conclusion the appellant was referred to Dr Peter Blombery, a consultant vascular disease physician. Dr Blombery saw the appellant first on 23 August 2001. The appellant told Dr Blombery that he suffered ongoing pain in the right wrist which was constant and that his right hand became cold and often blue and also sweated abnormally. Dr Blombery was unable to detect any difference in temperature or colour between the two wrists of the appellant, but accepting the appellant’s history, he considered that such complaints were diagnostic of Complex Regional Pain Syndrome, Type 1. Dr Blombery decided to endeavour to treat the condition by the application of blockade to the sympathetic nervous system, but that treatment resulted in minimal effect with no real reduction in pain. Dr Blombery concluded that the appellant indeed suffered from Complex Regional Pain Syndrome Type 1, which was sympathetically independent. He said that this equated to a chronic pain syndrome. The appellant did not return to see Dr Blombery after November 2001 and the only medical report before his Honour from Dr Blombery was dated 23 September 2002. No updated report was before his Honour.
In March 2002, and at the request of his solicitors, the appellant was examined by Dr Clayton Thomas, a physician who was a consultant in rehabilitation and pain medicine. Dr Thomas reached the same conclusion as did Dr Blombery, that is that the appellant suffered from Complex Regional Pain Syndrome Type 1, being sympathetically independent pain. Dr Thomas reported to the appellant’s then solicitors on 23 October 2002. No updated report however was put before his Honour.
Accordingly, as at the end of 2002 two specialists had diagnosed the appellant as suffering from a physical condition, that of Complex Regional Pain Syndrome Type 1.
However, over subsequent years the appellant was examined by a number of specialist medical practitioners who observed no sign of the appellant suffering from such a condition. In May of 2003 and at the request of the respondent’s insurer Professor Donald Marshall, a plastic surgeon, examined the appellant. His examination revealed ‘the appearance of the hand is substantially normal, the texture of the skin is normal, the colour appears normal, the range of movement although slow, is almost normal both in the active and passive range.’ Although the appellant complained of severe pain and hyperaesthesia in the area of the injury, Professor Marshall said ‘the symptoms and signs do not meet the criteria for a diagnosis of causalgia, or reflex sympathetic dystrophy and there is no measurable loss of sensation or movement’.
General surgeon Mr Robert Marshall examined the appellant on 18 May 2005 on behalf of the respondent’s insurer. The appellant demonstrated to Mr Marshall that with his wrist splint removed he could not close his index and middle fingers at all. Once the splint was replaced he was able to clench his fist but he had great difficulty in moving his thumb. Mr Marshall said:
There is some minor scarring of the forearm just above the wrist where the rollers clearly have caused what amounts to a second degree burn, but this has now long since healed. The palms of both hands are pink and might almost be labelled as “liver palms” but there is no difference between the two sides. There is no sign of any vascular abnormality in the limb and his pulses are normal. He complains of gross hypersensitivity of the area of his wrist and hand in relation to the base of his right thumb, and even the most feather touch on this whole non-anatomical area causes him to complain of exquisite pain. … In essence, Mr Grant complains of inability to move his hand without wearing a splint and movements of his hand are presented as quite weird and inconsistent with any conceivable physical abnormality. He insists however that “as soon as I take this splint off I can’t use my hand”, but the restriction of movement of his thumb and index finger is not consistent with functional anatomy.
Mr Marshall concluded that there was no physical correlation between the appellant’s symptoms and any physical injury.
In September 2007 Dr Peter Stevenson examined the appellant on behalf of the respondent’s solicitors. Physical examination by Dr Stevenson was stated to reveal the following:
There was no colour change, no sweating and no objective evidence of complex regional dystrophy. He appeared to have minor restriction of movement of the wrist with loss of the last 20° of extension and some 20° of flexion. The index finger was held semi flexed and the right finger was kept adducted. He appeared to have lost about 30 per cent of the extension of the thumb. There was hyper reaction to light touch over the dorsum of the right forearm which could have reflected some degree of neurological allodynia. There was somewhat lesser hyperreaction on light touch over the flexor aspect more patchily. … Grip strength in the left hand was 30 kg. On the right grip was entirely with 3rd and 4th finger and was only 8 kg on a Jaymar dynamometer. There was no objective evidence of complex regional pain syndrome.
Dr Stevenson’s assessment was as follows:
If he did have a rupture of the extensor apparatus of his thumb, the restriction of the thumb would be medically explicable. As no such rupture was identified, restriction would seem behavioural.
Some pain which could be neuropathic if objective nerve injury were confirmed (sic). On the other hand there is no evidence of any of the objective features required to diagnose complex regional pain syndrome. I do not know whether he did have some features at an earlier occasion but the syndrome is in general self limiting. If he ever had it it appears resolved.
Insofar as to whether the worker had a current work capacity, Dr Stevenson said that he considered that the appellant did have such work capacity. He said further:
Again I cannot identify a secure medical basis for the claimed profound incapacity. This could be further clarified if more reports were available. I cannot exclude a minor naturopathic component but it is not supported by objective vascular signs of Complex Regional Pain Syndrome.
The psychiatric evidence
The appellant was examined by psychiatrist Dr Duke Turacek on 28 November 2001 at the request of the respondent’s insurers. Dr Turacek expressed the opinion that the appellant suffered from an adjustment disorder with symptoms of anxiety in the context of a psychogenic pain syndrome.
In addition the appellant was examined by a psychiatrist Dr Timothy Entwisle on two occasions, the first occasion in December 2004, the second occasion being in June 2007. Upon his examination in December 2004, Dr Entwisle expressed the view that the current psychological condition of the appellant was that of ‘chronic anger and frustration’, but that from a psychiatric perspective there was no reason why the appellant ‘could not perform certain work duties as deemed appropriate based on his previous work experience and abilities’. Dr Entwisle provided a supplementary report on 1 February 2005 whereby he stated:
I note his treating GP, Dr Wilson, and psychologist Mr Brown have confirmed a capacity for work. All of this is in keeping with my conclusions. I believe that Mr Grant presents with longstanding problems with chronic anger and drinking. These factors, rather than the injury itself, explain his presentation. I have made my comments in regard to his ongoing treatment. In my view, there is little or no connection now between his injury and his current presentation.
In June 2007 Dr Entwisle re-examined the appellant. Having conducted a psychiatric examination he repeated his earlier conclusion that the appellant did not present with a psychiatric condition and that he was not incapacitated for work from a psychiatric perspective.
In addition to the above two psychiatric opinions there was a report before his Honour of psychologist Ms Maria Mercuri who saw the appellant on one occasion only, on 11 September 2007. Her diagnosis was that the appellant suffered from ‘depression disorder’ as a result of his physical injury.
The above summary reflects the state of the medical evidence which was put before his Honour when the application came on for hearing before him in February 2008. In summary, there was evidence that in 2001 and 2002, the appellant was diagnosed as suffering from Complex Regional Pain Syndrome Type 1. (Dr Blombery and Dr Thomas). However, during the following six years the appellant was examined by a number of specialist physicians and surgeons, none of whom found any symptoms consistent with such a condition. The only evidence supporting any psychiatric condition was that of Dr Turacek who had examined the appellant in 2001 and had come to the conclusion that the appellant suffered from an ‘adjustment disorder with symptoms of anxiety in the context of a psychogenic pain disorder’. No detail of the basis of this opinion was given by Dr Turacek in his report nor did he give evidence before his Honour. On the other hand Dr Entwisle had examined the appellant in 2004 and 2007 and gave evidence before his Honour.
The trial judge’s conclusion
His Honour’s carefully reasoned and full judgment set out a concise summary of the evidence and his reasons for refusing to grant leave to bring proceedings for the recovery of damages pursuant to s 134AB(16)(b) of the Act. He stated that the appellant’s case was:
primarily put under paragraph 134AB(37)(c) and ultimately Mr McCredie, counsel for the (appellant) conceded that there was no proper basis upon which the Court could conclude that the (appellant) had a serious injury within the meaning of paragraph 134AB(37)(a).
That is, it was conceded by Mr McCredie before his Honour that there was no proper basis to say that the appellant had suffered a serious injury that was a permanent serious impairment or loss of a body function. Mr McCredie of counsel also appeared before us on behalf of the appellant. Although at first he said that he did not ‘abandon’ his argument that the appellant had a permanent serious impairment or loss of a body function, he conceded finally, as it would appear he did before his Honour, that it was not open to his Honour, on the evidence, to conclude that the appellant suffered from a Complex Regional Pain Syndrome Type 1 and that there was thus no evidence before his Honour that the appellant suffered any permanent serious impairment or loss of a body function by reason thereof. In the light of the evidence that concession was well made.
However, both before his Honour and before us, Mr McCredie contended that the appellant suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. The trial judge concluded that on the balance of probabilities, the appellant suffered from a ‘chronic pain syndrome’ which was causally connected to the injury sustained on 20 March 2000. However, his Honour concluded that the appellant had not established that such ‘behavioural disturbance’ was a serious injury, because he was not satisfied that the appellant had established the requisite permanent loss of earning capacity consequences of such an injury, nor did the appellant establish that the pain and suffering consequence of the appellant’s behavioural disturbance was severe.
The correct approach to appeals governed by s 134AB of the Act was set out by Ashley JA in Church v Echuca Regional Health[1]. In that case Ashley JA accepted that the effect of Dwyer v Calco Timbers Pty Ltd[2] is that whenever there is a challenge to a finding of serious injury, or of no serious injury, it is unnecessary for the appellant to demonstrate error. Rather, it is for this Court to decide the issue of serious injury for itself, in reliance upon ‘the evidence and other material before the judge who heard the application’ and upon any other evidence which the Court may receive.[3]
[1][2008] VSCA 153 [104] – [113].
[2][2008] 244 ALR 257.
[3]In the appeal before us, neither party sought to adduce further evidence.
As Ashley JA said in Church v Echuca Regional Health[4]:
I should say that this Court could be assisted in at least two ways. In the first place, a judge’s reasons would be likely to assist this Court if they analysed the evidence in an ample and logical way; not because to do so would absolve this Court of its fact finding obligation, but because it would enable the parties to identify matters of common ground and where the area of debate begins; and because ample and logical reasons would provide very useful sign posts to this Court in carrying out its task.
In the second place it seems to me that reasons would be of assistance if they described any matter observed in Court which, to the judge’s way of thinking, bore upon a witness’s credibility.
[4][112] and [113].
In this regard his Honour’s reasons are most helpful. They provide a full and accurate summary of the evidence put before him and his reasons reveal the basis of his analysis of that evidence. His Honour stated that he did not form a favourable view of the (appellant’s) credit and as a consequence he ‘adopted a cautious approach to the acceptance of his evidence’. Having read the transcript of the examination and cross-examination of the appellant I am of the view that his Honour’s caution was well justified. Indeed, in his written submissions before us counsel for the appellant conceded that the trial judge ‘was entitled to treat the (appellant’s) evidence with caution’. However, notwithstanding such caution and the issues of credit which arose in the course of the trial, counsel for the appellant contended before us that the evidence established that the appellant suffered from a permanent severe mental or permanent severe behavioural disturbance or disorder. It was argued by counsel that this had a physical manifestation in that the appellant would appear to have worn an arm brace constantly since the time of the accident and that the trial judge had observed some wasting in the area of the appellant’s right forearm, which it was submitted is evidence of disuse. In my view, that evidence did not establish that at the date of the hearing before his Honour the appellant suffered from any psychiatric condition which could be said to amount to serious injury in any way.
His Honour, however, concluded that on the balance of probabilities the plaintiff suffered from a chronic pain syndrome. He expressed the view that that conclusion was supported by the evidence of Drs Blombery, Thomas and Dr Turacek. He discounted the evidence of Dr Entwisle notwithstanding the fact that Dr Entwisle examined the appellant on two occasions, the latter being in 2007, and gave evidence before his Honour. However a careful reading of the reports put before his Honour by Drs Blombery and Thomas does not establish that the appellant was suffering a psychiatric condition at the time of the examination by each of those doctors. Both doctors reached the conclusion that the appellant suffered from a physical impairment, namely Complex Regional Pain Syndrome Type 1. The only evidence that the appellant suffered a chronic pain syndrome of psychiatric dimension was that of Dr Turacek. However that was a report which was written in relation to an examination conducted by that doctor in 2001. In my view the evidence of Dr Entwisle who examined the appellant on two later occasions and in particular in 2007 could not be dismissed, as his Honour did, on the basis that Dr Entwisle did not conduct a physical examination of the appellant. It is apparent that neither Dr Entwisle nor Dr Turacek conducted such physical examination. In terms of the physical aspects of the appellant’s presentation both those psychiatrists, quite properly in my view, relied upon the reports of physicians and surgeons which had been placed before them.
In my view there was no acceptable evidence before his Honour that the appellant suffered from any psychiatric condition of significance as at the date of the hearing. There was certainly no evidence of any permanent severe mental or behavioural disturbance or disorder. Accordingly, it is not necessary to consider whether any consequences by way of loss of earning capacity or pain and suffering of any such injury within the meaning of s.134AB(38)(b) were established.
However, it is appropriate to say, that even if his Honour’s conclusion that there was evidence which supported a psychiatric condition of chronic pain syndrome was accepted, his Honour’s conclusions in relation to the failure of the appellant to establish that he had a relevant loss of earning capacity by reason thereof, were entirely justified. Likewise the conclusions reached by his Honour that the appellant had failed to establish that there were any pain and suffering consequences of any behavioural disturbance which could be said to be severe was also, in my opinion, entirely justified.
For the above reasons, I joined in the order made by the Court on 12 February 2009 that the appeal of the appellant be dismissed with costs.
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