Gray v City of Greater Geelong
[2013] VCC 885
•31 July 2013
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-05044
| DEBRA GRAY | Plaintiff |
| v | |
| CITY OF GREATER GEELONG | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 16, 17, 18, and 19 July 2013 | |
DATE OF JUDGMENT: | 31 July 2013 | |
CASE MAY BE CITED AS: | Gray v City of Greater Geelong & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 885 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering consequences of injury to the non-dominant hand – whether the consequences are “at least very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with Ms S Lean | Slater & Gordon Ltd |
| For the Defendants | Mr Meldrum QC with Ms K Galpin | Wisewould Mahony |
HIS HONOUR:
1 Debra Gray alleges that, on 2 March 2006, she suffered injuries to her left hand in the course of her employment with the first defendant when she slipped and fell whilst using a treadmill at a gymnasium.
2 She seeks the leave of this Court to issue a proceeding to recover pain and suffering damages in respect of that injury. Her right to do is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that the injury suffered by her is a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as:
“(a) permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of Ms Gray’s left hand.
5 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[2]
[2]Section 134AB(38)(b) and (c)
6 Ms Gray submits that the pain and suffering consequences of her injury meet that threshold test. The defendants deny this is so.
Background
7 Ms Gray is aged fifty. She lives with her de facto partner and four children aged between about ten and sixteen years. She completed her VCE at high school and completed one year only of a Diploma in Physical Education at Deakin University.
8 For the greater part of her working life she has worked in the health and fitness industry and has undertaken various courses in that field.
9 She commenced employment with the first defendant in about 1990. It operates a number of health and fitness centres in Geelong. In early 2006, she was employed as a personal trainer/exercise instructor. She was working at a number of different gymnasiums.
10 Three such gymnasiums were operated by the first defendant. Her principal role there was that of an aqua instructor for five hours per week. This involved instructing clients in exercises in a swimming pool, often accompanied by music. For most of the time she did this from the poolside. She was also employed filling in for other employees when they were unwell or on leave. She averaged about two hours per week filling in. Her fill-in tasks were varied and included boxing classes, pump classes, step classes, toning hips and thighs, working with disabled groups and circuit classes. About two-thirds of her work for the first defendant involved aqua instructing, and one-third involved other land-based duties.
11 In addition, she was employed at the Belgravia Gymnasium at the Ford factory three to four hours per week as an aerobic instructor. This was a gymnasium for employees of Ford.
12 Further, she worked five hours per week at the Belmont Squash Centre as a personal trainer. She took individuals, small classes or school groups. It was this activity that Ms Gray preferred.
13 In all, she worked 31 hours per fortnight (about 15 hours one week and 16 hours the next). She enjoyed working in the health and fitness industry.
14 Her left hand is her non-dominant hand.
The Accident
15 On 2 March 2006, Ms Gray was injured when using a treadmill at the first defendant’s Splashdown Gymnasium. She fell from the treadmill when it accelerated suddenly. She sustained fractures of the proximal phalanges of the left ring and little fingers. In addition, the middle finger was affected.
Post accident
16 On the following day, Ms Gray was operated on at the Geelong Hospital. The fractures were fixed with K-wires, and a plaster slab was applied. She was discharged from hospital the following day. Later, she attended on a number of occasions at the Outpatients Clinic. It took some time for the fractures to unite. She later underwent a further procedure to have the K-wires removed and was referred for intensive hand therapy. She had pain and stiffness in her little, ring and middle fingers and was diagnosed with a Chronic Regional Pain Syndrome. The fingers changed colour and she experienced sweating on her left hand. She had little or no motion in the proximal interphalangeal and distal interphalangeal joints of the ring or little finger.
17 On 31 May 2007, Ms Gray’s treating surgeon, Mr Timothy Bennett, performed a third procedure – an arthrolysis and tenolysis in order to free the joints, extensor tendons and flexor tendons. Hand therapy was resumed.
18 When she originally returned to work, she was put on light duties, including some cleaning and working with children in the crèche.
19 After the third procedure, she was off work for some sixteen weeks. She eventually built up back to her normal 31 hours per fortnight that she had worked for her various employers prior to the accident.
20 Ms Gray continued to be employed with the first defendant until July 2008. Prior to that time, she complained that she had been treated poorly by management. She said she had been discriminated against in respect of decisions concerning what work she should perform. She said that she had applied for additional work, which she considered she was physically capable of performing, but was repeatedly overlooked. Eventually she took proceedings against the first defendant before the Equal Opportunity Board. Those proceedings were resolved and as part of the terms of resolution, she resigned from her employment with the first defendant.
21 Ms Gray continued working with the Belgravia Gymnasium, and at the Belmont Squash Centre.
22 In due course, she also found employment with the YMCA. She was offered a 12-month contract to work with a group of Vietnam veterans. This was not gymnasium work as such. She worked between five and seven hours a week. She assisted them with activities such as swimming, walking, racquetball, drinking problems and assisted them with their stress levels. All those veterans were suffering from a level of Post-Traumatic Stress Disorder. The job largely involved counselling and encouragement.
23 Following that 12-month contract, she continued to work as a casual employee for the YMCA for another six months or so.
24 At the Belgravia Gymnasium, Ms Gray had previously worked three to four hours per week. From 2009 she worked 15 hours per week, largely in a supervisory capacity. Her contract there expires in April 2014. She does not believe that the gymnasium will continue to operate after that date. It is, essentially, a gymnasium for employees of Ford and she is aware that Ford will cease to produce cars in Australia in the near future.
25 She continued working at the gymnasium at the Belmont Centre up until December 2012 when that business closed down.
26 Ms Gray is currently looking for more work. She is aware, following the Federal Government’s recent announcement of the National Disability Scheme, that the Scheme may be administered, at least in part, from Geelong. She is hopeful that she may be able to obtain work in that area.
27 For a time, she was prescribed Panadeine Forte by her general practitioner, Dr Greer, or by other doctors at his clinic. It does not appear that such prescriptions have been issued to her since July 2008.
28 Ms Gray had about 20 sessions with a hand therapist, Jane Skeen, between June and August 2007. These do not appear to have continued after that date.
29 Ms Gray is not receiving any treatment at present.
Diagnosis of injury
30 There is little dispute between the parties as to the nature of the injury suffered by Ms Gray. It seems clear that she fractured the proximal phalanges of her left little and ring fingers. Movements of the middle finger have also been significantly affected. She later developed a form of Chronic Regional Pain Syndrome but that has settled to a degree.
31 Ms Gray has been left with a reduced range of movement in the three affected fingers. She is unable to make a fist. She demonstrated that each of the three relevant fingertips can get no closer than about 2 centimetres from the palm of her hand. Similarly, she finds it difficult to fully extend them. If she attempts to touch her thumb and little finger, she can get no closer than about 2 centimetres. Her pincer grip between her thumb and forefinger is not affected.
Consequences of injury
32 Senior Counsel for Ms Gray submitted that the consequences of her hand injury did meet the threshold criteria of being more than significant or marked and being at least very considerable. Those consequences were, he submitted:
(a)She suffered from ongoing pain in her fingers especially in cold weather;
(b)She had a restricted range of movement, such that she could not make a fist nor fully extend those fingers;
(c)The grip strength of her left hand was weakened;
(d)She had difficulty handling a range of gymnasium equipment;
(e)The activities that she could perform in the course of her employment in the health and fitness industry were reduced;
(f)She had difficulties with domestic activities of bed making and the moving of furniture required for the purpose of vacuuming; and
(g)An inability to undertake sporting activities such as social netball and basketball which she had played in the past.
33 Senior Counsel for the defendants submitted that the consequences of Ms Gray’s injuries would not, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as being more than significant or marked or as being at least very considerable.
34 He submitted that Ms Gray was not a reliable witness and that she was chronically unresponsive and uninhibited. To an extent, I agree. Ms Gray was indeed somewhat verbose and at times unresponsive in her answers to questions put to her in cross-examination. However, in the main, I did not form the impression that she was deliberately being evasive or attempting to mislead the Court. Some parts of her evidence did cause me concern and I shall return to these.
35 It was submitted that, at times, she had used somewhat dramatic terms when describing her injuries and their effects. For instance, at one stage she referred to the “havoc” created by her injuries. At other times, she used absolute terms when explaining that she could not do certain activities when it later became clear that what she really meant was that she had some difficulty in performing them. Again, I did not form the view that she was attempting to mislead the Court; however, such matters require me to look and consider her evidence carefully.
36 Ms Gray tendered evidence from Mr Timothy Bennett (the plaintiff’s treating plastic and reconstructive surgeon), Mr Timothy Woods (a sports physician) and Associate Professor Felix Behan (a plastic and reconstructive surgeon). The defendants tendered evidence from Mr Damian Ireland (a hand surgeon), Dr Michael Baynes (an occupational physician), Dr James Rowe (also an occupational physician) and Mr Murray Stapleton (a plastic and hand surgeon).
37 In addition, reports from Mr Nick Kafieris (acupuncturist), Ms Jane Skeen (hand therapist) and Mr Robin Peterson (remedial therapist) were tendered. These dated back several years and did not assist me.
38 I found the reports dealing with examinations in 2012 and 2013 to be more helpful than earlier reports in determining the current consequences of her injuries.
39 As previously stated, the nature of the injuries suffered is largely non-contentious. Each of the practitioners acknowledged that Ms Gray has suffered a reduction in the range of movement of the three fingers concerned and that her ability to handle and grip certain items would be restricted. On the basis of their reports, I have no difficulty concluding that she is restricted in the manner in which she can lift heavier weights with her left hand, and I accept that she does suffer some pain, especially if she overuses those fingers and especially in colder weather.
40 Much of the hearing was occupied by cross-examination about the degree to which Ms Gray’s gymnasium employment has been restricted by her injuries. DVD-surveillance films depicting Ms Gray conducting gymnasium classes at the Belmont Centre on a number of occasions in August and September 2012 were tendered. I was informed that these films were of some 12 hours’ duration. Both parties tendered selected portions of those films. The films had been seen by both Mr Ireland and Professor Behan. Their interpretations of the films and their conclusions as to Ms Gray’s ability to perform gymnasium work differed quite markedly.
41 Mr Ireland had originally examined Ms Gray in August 2012. He had taken a history that she was currently working as a bookkeeper administrator, 12 to 16 hours per week, at a gymnasium at the Ford Motor Company (that is, the Belgravia Gymnasium). She was complaining of diminished grip strength due to stiffness in the three fingers concerned and that she was no longer able to teach boxing, lift weights or demonstrate gymnasium techniques.[3] He noted the restricted motion of the joints of the middle, ring and little fingers.
[3]Defendants’ Court Book 4
42 In April 2013, Mr Ireland was sent the surveillance films depicting Ms Gray in August and September 2012. These showed her conducting a gymnasium classes at the Belmont Centre. They were taken reasonably soon after, Mr Ireland’s examination of Ms Gray in August 2012. Mr Ireland concluded that:
“This new information indicates that the history given to me by Ms Gray on 13 August 2012 was untruthful. If Ms Gray continues to function in this capacity, then the most recent information given by Ms Gray when I re-examined her on 13 March 2012 was also untruthful.”
43 The suggestion of untruthfulness appears to be based on Mr Ireland’s recorded history that Ms Gray was working only in an administrative capacity. He considered that the film indicated that Ms Gray was able to lift weights and put the weights away and that she was fully capable of instructing gymnastic exercises. He thought that there was no doubt that she would have a restricted motion at the middle, ring and little fingers of the left hand; however, it was obvious that this was causing no discomfort or pain and did not require any form of treatment. He thought it was also evident that the impairment was not causing the degree of disability that Ms Gray had indicated to him on the occasions that he had examined her. He thought her disability was minor.
44 Professor Behan had examined Ms Gray in June 2012. He thought that she had a disability from an industrial loss point of view, as well as some domestic and social aspects. He examined her again in March 2013 and noted that she used what he described as a tripod grip for pencil writing with her left hand. He noted that she had almost zero power on the ulnar half of the hand. She had a good grip with her thumb and index finger – the pincer grip. He described her as having an almost hemi-functional hand. He did not think she could perform her pre-injury gymnasium duties but he did consider she had the capacity to perform suitable work.
45 Professor Behan noted that she was then working at Ford as a gymnasium assistant in the managerial section doing security, telephone calls, bookings and banking. He also took a history from her that she was taking fitness classes at the Belmont Centre. He did not think further improvement was likely.
46 It is surprising that Professor Behan would make note of her ability to hold a pencil with her left hand. Her dominant hand is her right and Ms Gray had made no complaint of difficulty with writing.
47 In May 2013, Professor Behan was able to view the films. He also saw the most recent report from Mr Ireland in which the view had been expressed that Professor Behan had been overstating Ms Gray’s restriction and disability. Having examined the film in the presence of Ms Gray, he said:
“… I have no doubt the video evidence in fact reinforces her ongoing complaints about dysfunction and I reject totally the statement made by the opposing legal team and signed by Mr Damian Ireland that I have overstated the plaintiff’s level of restriction and disability.”
48 When Mr Ireland examined Ms Gray in March 2013, he tested her grip strength by use of a Jamar dynamometer. He had not done these tests on the earlier occasion. He measured grip strength on the right hand successively at 28, 26 and 24 kilograms, compared with 18, 10 and 8 kilograms on the left. He stated:
“The variation beyond 20 per cent on the left invalidates this test for the purposes of calculating residual whole person impairment.”
49 Regrettably, Mr Ireland did not explain what was meant by this. If he meant that Ms Gray had failed to try during the grip testing or that she attempted to mislead him concerning the strength of her grip, he did not say it. I do not draw that conclusion. Rather, I accept the findings of Professor Behan, Mr Wood, and Dr Baynes that there is some reduction of grip strength of the left hand. Such reduction is, to me, unsurprising given the nature of her injuries.
50 Dr Baynes had examined Ms Gray in April 2013. He was not provided with any portion of the films. He considered that Ms Gray was suffering from ongoing discomfort in her left hand associated with increased pain on forceful gripping and flexion of the fourth and fifth fingers and restriction of functioning in terms of decreased flexion of them. He did not think there had been any real change in her condition since he had last seen her in 2007, shortly before the second bout of surgery undergone by her. He made no comments reflecting on her credibility.
51 Dr Baynes did not make any specific comment on Ms Gray’s restrictions for employment in the gymnasium industry. However, the history obtained by him was that she had not been involved with fitness or exercise classes since 2008 and that she had done some retraining and was now working in administration, advertising and promotion for about 15 hours a week. He did take a history that up until 2012, she had been working at the Belmont Centre undertaking an exercise program for retirees, working with light weights and low impact exercises.
52 Ms Gray had told him she had difficulty lifting bar weights and that she was unable to do a proper push-up as she had difficulty putting full weight on her left hand. She said that she had continued to undertake a regular exercise program for herself in the gymnasium but avoided pulley work and any heavy lifting.
53 Having viewed and reviewed the surveillance films, I consider that they are not inconsistent with Ms Gray’s evidence that she has some restriction in the use of her left hand. However, she is clearly able to lift relatively light weights with her left hand. The film demonstrated her lifting and using weights of up to 7 kilograms. On one occasion, when moving weights from one area of the gymnasium to another, she elected to carry the bar (1 kilogram) with 3 kilograms on either end (a total of 7 kilograms) with her left hand whilst carrying a seemingly lighter item with her right hand. I considered this was indicative that, at that time, she saw no need to protect her left hand. However, much of the activity demonstrated in the films is consistent with her using the thumb and forefinger of her left hand as the principal gripping mechanism. She is able to do this with those relatively light weights. I accept that she would have difficulty doing so with heavier weights. She was shown lifting and using medicine balls weighing 2 or 3 kilograms without apparent difficulty.
54 The films also showed Ms Gray setting up for her class at the Belmont Centre and putting equipment away afterwards. She appeared to have no difficulty doing so. At one point she carried three or four stepping platforms with both hands. I accept that they were relatively light.
55 The films depicted, on a number of occasions, Ms Gray performing half push-ups (her knees remaining on the ground and using her hands and arms to elevate her shoulders and torso) and also full press-ups (where her hands and arms raised her shoulders, torso, hips and legs off the floor). Ms Gray stated that she was putting a reduced amount of pressure on her left hand and using her right hand moreso. I do not accept that evidence. I do not accept that one can perform a push-up (half or full) with anything other than approximately equal weight on each hand. Logically, if it were otherwise, the attempted push-up would result in a person leaning or lurching obviously to one side or the other. This was not demonstrated in the films.
56 I have read the affidavits of Judy Hammer, Lucinda Hunt and Geoff Osborne, which were tendered in support of Ms Gray’s application. Ms Hammer is aged sixty-nine. She appeared at times in the surveillance films. She deposed that the weights that she would lift were relatively light but that those lifted by Ms Gray in the course of classes were lighter still. This had apparently been the subject of some good natured ribbing by various members of the class. The evidence of those persons was consistent with Ms Gray being restricted in performing some of the activities conducted in those classes.
57 Prior to the accident, Ms Gray was working around 16 hours a week. A minor portion of that time was spent in the more vigorous roles of health and fitness work. Much of her time was spent poolside, which required little, if any, physical activities with either hand. She did have to set up and put away stereo equipment. After the accident, she received some assistance with that task. Since the accident, she has regularly worked around 16 hours a week.
58 Although Ms Gray’s children are still relatively young and living at home, she gave no evidence that she had intended to return to full-time employment in the future as her children grow up.
59 I accept the evidence of Lucinda Hunt that many persons attending a gymnasium would expect their instructor to be strong, fit and capable of performing the exercises involved with the class. I accept that someone who is restricted in such activities would find it more difficult to find employment, whether it be on a part-time or full-time basis. Ms Gray is likely to have to continue to work at the lighter end of the fitness industry, concentrate more on the administrative side of the industry or look for some other light employment altogether. I consider that she would be fit to work in a wide range of clerical positions on a full-time basis.
60 I also note that Ms Gray was able to perform work with a Vietnam veterans’ group which, although it involved some gymnasium work, involved other more varied activities. The defendants tendered a letter written by Ms Gray on 29 September 2008 at the time that she was in the midst of applying for that position. In the letter, she wrote:
“It’s my passion to work in the field of the rehab/special needs population. It’s time I moved on from mainstream population/group classes and focussed on what I believe I do best and what is suited to my personality. There is nothing more rewarding in life than helping people achieve their goals, no matter how insignificant that goal may appear. That’s why I love working in fitness and health, because you see what a change becoming healthier and having a better level of fitness can do for a person’s self esteem and confidence.”
61 It appears that, at that time, Ms Gray was not focussing solely on gymnasium work but on a wider range of health and fitness work. I also note that she is now aged fifty and would probably be expected to wind down some of her more athletic activities, at least to a degree, in the near future.
62 In assessing the level of Ms Gray’s pain, I note the evidence of Dr Greer, who had recorded in his clinical notes that her pain was “minimal” when he last saw her in mid-2012. I accept that Dr Greer’s note accurately recorded the history provided by Ms Gray at that time.
63 I also note that when Ms Gray’s employment with the first defendant was terminated in 2008, it was not because she was having difficulties in performing her modified duties at that time, but because she believed that the first defendant was treating her unfairly in refusing to provide her with additional duties that she believed she was fit to perform.
64 Ms Gray has received little if any medical treatment over the last few years.
65 I do not accept that she is taking prescription analgesia and I find that she has not taken such medication for some years. I do accept that she takes over-the-counter analgesia such as Nurofen from time to time. In her oral evidence Ms Gray had maintained that she did take prescription analgesics, notwithstanding the evidence of Dr Greer that they had not been prescribed by him or other doctors at his clinic for some years. In an attempt to explain the source of prescription analgesia, Ms Gray attempted to persuade me that she had obtained such medication from her partner, from a relative who was a pharmacist and from other medical practices. She later withdrew her evidence that her relative had supplied medication to her. There was no reference until late in her cross-examination to her attending other doctors at other practices. Her evidence concerning on-going use of prescription medication was unconvincing and I reject it.
66 I accept that Ms Gray may encounter difficulties in moving heavy furniture on the occasions that this was required in connection with vacuuming. I accept that she may have a degree of difficulty plaiting her daughter’s hair. However, there was no evidence of any other problems that she encountered with her normal activities of daily living.
67 I am not satisfied that there is any significant wasting of the musculature of her left arm that would indicate any diminished use. In particular, I note the findings of Dr Baynes in April 2013 that there was no such indication of disuse.[4]
[4]Defendants’ Court Book 25
68 The evidence of Dr Greer[5] and Dr Wood[6] was to the effect that there is an increased risk in her developing arthritic changes in the joints of the three affected fingers in the future. Dr Greer was of the view that the most recent x‑rays did not establish the presence of such changes. I accept that there is an increased risk of that occurring in the future, but also that it may never develop.
[5]Plaintiff’s Court Book 53
[6]Plaintiff’s Court Book 78
69 In summary, I find that Ms Gray does have a restriction of movement and a degree of pain or discomfort associated with the use of the three fingers of her left hand. I accept that she has restrictions that would probably prevent her from working in an unrestricted fashion in some of the heavier areas of the health and fitness industry, including unrestricted personal instructing.
70 However, I am not satisfied that she has discharged the onus of demonstrating that the consequences of her injuries are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.
Conclusion
71 For the reasons expressed above, I am not satisfied that Ms Gray has established that she has suffered a “serious injury” as defined in the Act. The application will be dismissed.
72 I shall hear the parties in relation to any consequential orders sought.
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