Grenfell v Masterbench Pty Ltd
[2015] VCC 1537
•9 November 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03549
| CORREY GRENFELL | Plaintiff |
| v | |
| MASTERBENCH PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 October and 2 November, 2015 | |
DATE OF JUDGMENT: | 9 November 2015 | |
CASE MAY BE CITED AS: | Grenfell v Masterbench Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1537 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application on the basis of s134AB(37)(a) – whether injury to the left hand “serious” within the meaning of s134AB(38)(c) – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a)
Judgment: Leave to the plaintiff pursuant to s134AB(16)(b) of the Act to commence a proceeding claiming damages for pain and suffering only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Anderson | Slater & Gordon |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HIS HONOUR:
1 This proceeding was commenced by the plaintiff by Originating Motion dated 24 July 2014.
2 In the Originating Motion, the plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident CompensationAct 1985 (“the Act”) to commence a common law proceeding against the defendant, his former employer, claiming damages.
3 The plaintiff’s case is that he suffered an injury arising out of, or in the course of, or due to the nature of his employment as a machine operator on or about 4 July 2012.
4 There is no issue in this proceeding that in the course of his employment with defendant on or about 4 July 2012, the plaintiff suffered an injury to his left hand.
5 In his first affidavit, the plaintiff said that he was operating a machine which was used for the purpose of folding sheet metal. Whilst bending a piece of sheet metal into a U-shape, his fingers were drawn into a press operated by the machine, which resulted in him suffering a cutting and crushing-type injury to fingers on his left hand. He was taken immediately after suffering the injury to the Northern Hospital, where a surgical repair of all the crushed deep flexor tendons of the four fingers of the left hand was carried out. Although a hospital report suggested that both digital nerves of the little finger were divided, subsequent examination suggest that it was only the radial digital nerve of the left little finger that was divided and not the digital nerve on the ulnar side of that finger.[1] I will return to the medical evidence relating to the plaintiff’s injury later.
[1]Plaintiff’s Court Book (“PCB”) 50
6 Further, there is no issue in this proceeding that the plaintiff continues to suffer pain and suffering consequences as a result of sustaining the injury, or that those pain and suffering consequences are likely to be permanent.[2]
[2]Transcript (“T”) 36
7 The plaintiff claims that the injury he sustained has resulted in permanent serious impairment or loss of a body function to left hand within the meaning of s134AB(37)(a) of the Act.
8 The plaintiff seeks leave to commence proceedings claiming damages for pain and suffering only.
9 The issue in dispute in this proceeding is limited to the question of whether or not the pain and suffering consequences of the plaintiff’s injury are “serious” within the meaning of s134AB(38)(c).[3] This issue is to be determined having regard to all of the evidence.
[3]T36 and T42
10 To make out a “serious injury” within the meaning of s134AB(37)(a), the plaintiff must establish, on the balance of probabilities, that he suffered a “permanent serious impairment or loss of a body function”. The determination of whether an injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant impairment or loss. Relevantly, in the circumstances of this case, an impairment is not “serious” unless the pain and suffering consequence is, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and as being at least very considerable” within s134AB(38)(c).
11 It is necessary, as in every application of this kind, to examine the evidence in order to decide what injury the plaintiff suffered during the course of his employment and, what consequences (if any) were suffered and continue to be suffered by him.
12 The plaintiff filed and served two affidavits in support of his application. Those affidavits were sworn by him on 13 March 2014[4] and 30 September 2015.[5] There was no direct challenge to the credit of the plaintiff. The defendant does submit however that the plaintiff’s complaints are not consistent with medical opinion or with other evidence, particularly evidence of video surveillance and evidence in the nature of posts on his Facebook page. The plaintiff’s application was also supported by an affidavit of Meg McArthur sworn 17 September 2015.[6]
[4]PCB 27
[5]PCB 34
[6]PCB 38
13 In addition, the plaintiff was called for cross-examination and was extensively cross-examined by the defendant’s senior counsel.
14 In addition, the plaintiff filed a Court Book containing a number of medical reports and radiological images. I admitted into evidence as exhibit A the Plaintiff’s Court Book (“PCB”) pages 27 to 90 inclusive.
15 I admitted into evidence as exhibit 3, on behalf of the defendants, pages 1 to 31 inclusive from the Defendants’ Court Book (“DCB”). I marked as exhibit 4 several pages from the Defendant’s Court book which were photocopies of various posts on different dates taken from the plaintiff’s Facebook page. exhibits 1 and 2 respectively were copies of two CDs depicting video surveillance of the plaintiff. I will discuss these later.
16 At the time of the injury, the plaintiff was 18 years of age. He is now aged 22 years. He was educated in Seymour and finished his schooling in Year 11. He then went to work as an apprentice spray painter.
17 He did not complete this apprenticeship because he injured his right shoulder playing football initially in 2010,[7] at which time he was required to have three months off work.[8] After recovery from the initial right shoulder injury, the plaintiff then worked for about six months in a family farming business. In early 2012, he commenced work as a labourer for Rural Concreting Piping Australia. This job lasted about three months and the plaintiff left because the work clashed with his training times for football.[9]
[7]T12
[8]PCB 28 [2]
[9]PCB 28 [3]
18 The plaintiff deposed in his first affidavit of his passion for AFL football. During the 2011 football season, the plaintiff played in the Under 18 team for the Seymour Football Club. At the same time, he was training in a squad for the Calder Cannons, a team in the TAC Cup competition. This competition is a feeder of elite Under 18 players into the AFL drafting system. The plaintiff deposed that at the time of his injury and, although he was not then a member of the actual playing Calder Cannons team, he was nonetheless hopeful of a career as an AFL football player.[10] In fact, the plaintiff was injured the day before he was to partake in a tryout game for the Calder Cannons.[11] He had not played for Seymour in 2012 because of a shoulder injury suffered in 2011. He had spent most of 2011 season, and through 2012 until the time of injury, strengthening his shoulder so that he could get himself fit for football and acquit himself well in tryouts for the Calder Cannons.[12]
[10]PCB 28 [4]
[11]T26-27
[12]T22
19 Although there was a considerable amount of time, particularly in cross-examination, given to various occasions in which the plaintiff had injured his right shoulder, in the result that at times he could not play football or work, there seems to be no issue in this case that at the time of his injury, the plaintiff could properly have been classified as an elite footballer aged under 18. Given that, I have taken the view that it was not unrealistic for the plaintiff to at least aspire to being drafted by an AFL club. The uncontested affidavit of Ms MacArthur, in my view, justifies that approach. Of course, one could not conclude on the evidence that the plaintiff would have been or, even would most likely have been, drafted. There are simply too many factors that may influence such an outcome and that involves a degree of speculation. As I said, I proceed on the basis that it was not unreasonable for the plaintiff at his age at the time of his injury to at least aspire to one day becoming an AFL player.
20 Because of his injury, I am satisfied that the plaintiff most probably would not be drafted. As he said in his affidavit material, when he did resume playing football, he was unable to play to the high standard that he was once used to playing.[13] It is common knowledge to football followers in this town that the skill level of AFL players is now so high that an injury that affects the player’s skill level by diminishing it, makes it more difficult for that player to be drafted.
[13]PCB 32 [17]
21 After his release from hospital, the plaintiff was given strong pain-killing medication. During 2012, he underwent about six months of hand therapy at Craigieburn Health and further reviews with plastic surgeons at the Northern Hospital.[14] He said that he suffered from anxiety and had trouble sleeping and coping with the restrictions of his injury.[15]
[14]PCB 30 [8]
[15]PCB 30 [9]
22 He returned to work on light duties three to four months after the incident. He was performing light duties three days per week for 3 to 4 hours per day. He said he could not do any physical or heavy work including heavy lifting and, in late 2012, his employment was terminated.[16]
[16]PCB 30 [10]
23 During mid-2013, the plaintiff was employed for about a month for the Kilmore International School as a labourer and painter. He said he struggled with the physical side of the work, which he described as being hands-on, including work mixing paint and sanding. He said he relied heavily on his right hand. The plaintiff is right-hand dominant. He said he was struggling mentally to cope with the injury and its consequences.[17] He was prescribed anti-anxiety medication by his general practitioner and referred for counselling.[18]
[17]PCB 30 [11] and T34
[18]PCB 30-31 [11]
24 At the time of swearing his first affidavit, the plaintiff said that he continued to suffer from pain and reduced function in his left hand. He said he suffered the pain every day but the pain depended upon what activities he was engaged in. He said he was pain-free if his left hand remained still. He said the pain increases with the use of his left hand.[19] The plaintiff also said that he had lost a lot of strength in his left hand. “I don’t have much grip strength. I even struggled to hold a bucket of water. I have had to adjust the way that I hold things, relying more on the middle part of my hand.”[20]
[19]PCB 31 [13] and T48
[20]PCB 31 [14]
25 The plaintiff described how his little finger on his left hand is now deformed. He said the finger is permanently bent and twisted, which he found frustrating. He now has a split nail in his little finger. The area of scarring in his little finger he described as being “sensitive to touch”. He said he has numbness in the ends of his index, ring and little fingers.[21] None of this evidence was challenged in cross-examination.
[21]PCB 31 [16]
26 The plaintiff used to play cricket. Since the injury, the plaintiff has played some cricket, albeit limited, but with good average success. He no longer plays cricket but I formed the view that this was because he has moved to a different locality and he presently pursues an occupation as a greyhound trainer and this takes up most of his time, preventing him from playing cricket.[22] Prior to the injury, he was playing cricket at a country standard, and having seen his averages which were tendered, I have reached the conclusion that the plaintiff is not prevented from playing cricket by the consequences of the injury.
[22]T28-32
27 In his most recent affidavit, the plaintiff deposed to continuing to suffer from pain, particularly in the little and ring fingers of his left hand. The pain he said gets worse during cold weather. He said he takes Panadol and Nurofen medication for the pain. He said he takes this two to three times per week. Also in his most recent affidavit, the plaintiff deposed to continuing to suffer from reduced strength and function and numbness and loss of sensitivity in the fingers of his left hand. He added that his little finger is unstable and it spontaneously dislocates when pressure is applied to it.[23] Again, none of this evidence was challenged.
[23]PCB 35 [4]
28 In his second affidavit, the plaintiff said that he does not have the confidence to play competitive football.
29 From about mid-2014, the plaintiff worked for about three months for a company called Vic Wide Concreting as a labourer. He said that he had days where he “really struggled because of my hand injuries. I struggled with anything that involved heavy lifting and I had to be careful with how I use my left hand.”[24] The defendant led evidence of video surveillance of the plaintiff whilst in this job. The purpose of the evidence was to demonstrate that the plaintiff could carry out work of a labouring kind. I formed the view that the video evidence tended to confirm the evidence given by the plaintiff. When carrying with his left arm, he can be observed positioning his left hand so that it is non-weight bearing.
[24]PCB 36 [6]
30 The plaintiff said that this work in concreting only lasted about three months because he reinjured his right shoulder which did not require surgery and improved with rest and exercise.[25]
[25]PCB [8]
31 In November 2014, the plaintiff commenced work for a greyhound trainer. The work involves feeding and exercising the dogs and taking the dogs to the race tracks. Since commencing this work, the plaintiff has started his own greyhound training business. He started on his own only a few days before trial. He described greyhound training work as being physical “but not too heavy”.[26] He said that he could cope with this work despite problems with pain and reduced sensitivity and strength in his left hand.
[26]PCB [7]
32 The plaintiff was cross-examined by Mr Miles in what was a comprehensive and helpful cross-examination. The plaintiff conceded, quite properly, that his football career had been interrupted by his shoulder injury in 2011 and 2012 which had nothing to do with the injury to his left hand.[27]
[27]T21-23
33 In cross-examination, the plaintiff said that he does not have much grip strength in his left hand.[28] The plaintiff was questioned about tests conducted by various doctors using a Jamar device to measure his grip strength. He said when Mr Behan conducted such a test, he had given everything that he had.[29] I interpreted this to mean that he had tried as hard as possible when the test was conducted.
[28]T38
[29]T39
34 The plaintiff was cross-examined about photographs posted on his Facebook page showing him wave riding behind a speedboat on the Barwon River at Geelong. He said that he was able to do this because he used his forearm strength. He said it is like riding a bike and you hold on.[30]
[30]T40
35 The plaintiff agreed that he had told Mr Ireland, a hand surgeon whom he saw on behalf of the defendant, that he enjoys his work as a greyhound trainer. He also agreed that working as a greyhound trainer was a seven-day-a-week job.[31]
[31]T41-42
36 On the question of treatment, the plaintiff agreed in cross-examination that he has not had any treatment on his left hand since November 2012 when he finished hand therapy.[32] He also agreed that he presently sleeps well.[33] He is able to drive a manual vehicle and take care of his own washing and hygiene.[34]
[32]T43
[33]T44
[34]T43
37 The plaintiff was asked what he could no longer do because of his injury. His answer was somewhat unresponsive to the question, however his evidence was, in my opinion, revealing. He said:
Q:“What do you say you can’t do?‑‑‑
A:It’s not what I can’t do, it’s the way - since the injury nothing’s gone my way as such. Like when I was at Collins, we used to carry two buckets whether they had meat or water in them and I’d walk 20 metres with a bucket in my left hand and I’d - either my hand would slip or I’d drop the bucket. It’s – that’s strength in them fingertips ‑ ‑ ‑
Q:This is a bucket of food, is it, for the dogs?‑‑‑
A:Yes, which would weigh 25 kilo, not even, 20 kilo. Well, the meat bags are 20 kilos so give or take. But just the little things like that, if I’ve got hands in two buckets of water, one warm, one cold, it’s different temperature in the hands, the feeling in it and then obviously (indistinct) sport.”[35]
[35]T44
38 I understood by this evidence that the plaintiff continues to have difficulty carrying heavy objects with his left hand because of reduced grip strength.
39 The plaintiff was asked about video surveillance whilst he was working doing labouring work for a concreter. I closely observed the video and it was very difficult to see precisely what it was that the plaintiff was doing. That was because the video was taken from a distance and a clear view was at times obscured. The video was said to have been taken on 11 June 2014. The plaintiff agreed that the video depicted him pushing a wheelbarrow with both hands and carrying wood in his left arm. He also agreed that he was shown raking and levelling using both hands. He said that he could do that work because it depended upon his right hand. With the left hand being used as a guide stop, he said that he used his left bicep to take the weight of wood in his left arm.[36]
[36]T47
40 The evidence of video surveillance, as I said earlier, in my view, assists the plaintiff’s case.
41 As to the medical evidence, there is not a great deal of dispute amongst the doctors as to the nature of, and consequences of, the plaintiff’s injuries. An x‑ray of the plaintiff’s left hand taken on the day of the accident showed no evidence of underlying fracture or dislocation.[37]
[37]T45
42 Simone Cariss is a treating occupational therapist who saw the plaintiff as an outpatient at the Northern Hospital on 18 October 2012. In her notes, she said she was happy for the plaintiff to return to work with the following restriction:
“Given his current grip strength and stage of recovery I recommend a 5kg weight restriction for the left hand. Depending on the grip required he may still find this difficult initially so Corey (sic) will need to be supported whilst he regains work conditioning.
5-10kg – again depending on the grip. Corey (sic) would not be capable of 10kg weight even bilaterally with carrying the weight with a handle, for example 10kg would be suitable if carrying a box where the weight is being carried by the forearms.
Corey (sic) has some weakness in his intrinsic muscles to the ulnar digits – in addition to a fixed flexion deformity of the little finger. This finger has the potential to get in the way when opening the hand to grasp objects.
Corey (sic) has not had full resolution of sensation to the radial aspect of the ring finger and little finger so grasping of potentially hot or sharp objects should be avoided. The sensation is recovering.”
43 Mr Murray Stapleton, plastic surgeon, saw the plaintiff on a number of occasions. The first of which was on behalf of the defendant’s insurer. That report is found in the Defendant’ Court Book.[38] He first saw the plaintiff on 22 November 2012, about four months after the injury was sustained. At the time of his examination, Mr Stapleton found that the plaintiff’s index and middle fingers had returned to normal. He found that the plaintiff had a normal range of flexion and extension of the ring finger, but the radial side, that is the thumb side of the ring finger, has very little to no sensation.[39] He cautioned that it was important for the plaintiff to remain on a lift restriction of 5 kilograms for the next two months.[40]
[38]DCB 26-31
[39]DCB27
[40]DCB 27
44 Mr Stapleton described the plaintiff’s injury as “a deep flex or tendon disruption of the fingers of his left hand and a sensory nerve injury involving the ring and little fingers”.[41]
[41]DCB 28
45 Mr Stapleton concluded his report by saying:
“Whether he will completely recover is problematic. When adults have the sensory nerves repaired, the sensation never returns to normal, which is not the case in a child, so the degree of return to sensory function and, the degree of returning to normal flexion and extension of the little finger is a matter that should not be predicted at this time.”[42]
[42]DCB 28
46 Mr Stapleton saw the plaintiff for the second time at the request of the plaintiff’s solicitors on 29 July 2014, at which time he reported that the plaintiff’s left hand is never free of pain and the power of the plaintiff’s left-hand grip is diminished. His report contains the following:
“From a functional point of view, he said his left hand is never free of pain. The power of his grip is diminished. The tips of the four fingers tingle when he applies pressure by way of a grip.
The little finger has no sensation down the inner, i.e. the radial side. The ulnar side has no loss of sensation. He has slight decrease of flexion of the little finger and as he attempts to flex that finger it gets a clicking sensation at the proximal interphalangeal joint.[43]
[43]PCB 51
47 In answer to specific questions asked of him, Mr Stapleton said the plaintiff was now much less competent with the fingers of his left hand and, given that his only job prospect appeared to be labouring jobs, that will decrease his employment options. He thought that the plaintiff’s social, domestic and recreational activities are all affected because of the injury. He also thought that the plaintiff’s injuries had stabilised.[44]
[44]PCB 52
48 Mr Stapleton did not change his opinion in his final report dated 25 June 2015. He did add that the plaintiff can no longer play or safely mark a football.[45]
[45]PCB 55
49 Associate Professor Felix Behan, plastic and reconstructive surgeon, saw the plaintiff at the request of his solicitors on 21 of May 2015. On examination, Mr Behan found that the strength of the plaintiff’s left hand is half the normal, being no more than 10 kilograms on a dynamometer. He also found the plaintiff suffered cold weather sensitivity in the left hand and that the left little finger goes into a triggering snap movement associated with tenosynovitis at the PIP J near the flexion of the FDS tendon.[46]
[46]PCB 59-60
50 Mr Behan found the plaintiff to be restricted in relation to his left-hand movement activity of a manual nature involving pushing, pulling and fine manipulative dexterous movements. He thought the plaintiff did not have the capacity to return to his former industrial environment but he was suitable to work as a greyhound trainer. He also thought that the plaintiff’s social and recreational activities are restricted because of the injury, because the plaintiff tends to avoid the use of his left hand in sporting activities.[47]
[47]PCB 12
51 Dr Amanda Sillcock is an occupational physician who saw the plaintiff at the request of his solicitors on 3 September 2015.[48] She opined, inter alia, that the plaintiff has some limitations with manual dexterity of the left hand and fine and manipulative use. She thought that these limitations would continue into the foreseeable future. She also thought that the plaintiff did not have the capacity to perform his pre-injury duties.[49]
[48]PCB 81
[49]PCB 86
52 The defendant relies upon a report from Dr Gary Davison, an occupational physician, who saw the plaintiff on 31 August 2015. Dr Davison was of the opinion that the plaintiff does not have specific occupational restrictions. He said, inter alia:
“In my opinion, there are no specific occupational restrictions required. I consider that Mr Grenfell has normal functional capacity in respect of the non-dominant left hand. His grip strength is within one standard deviation of normal grip strength.”[50]
[50]DCB 4
53 Mr Damian Ireland has seen the plaintiff twice. The first occasion was 11 June 2014. At that time, Mr Ireland gave the opinion that the plaintiff is not precluded from pursuing any occupation or pastime of his choosing and there were no work restrictions.[51] Mr Ireland said, in his first report, that he attempted to measure the grip strength on both sides of the plaintiff using the Jamar dynamometer. Because the variation was greater than 20 per cent on both sides, Mr Ireland said that the test was invalidated.[52]
[51]DCB 15
[52]DCB 14
54 At the hearing, this finding was put to the plaintiff and it was suggested that he had not carried out the test to the best of his ability. I do not accept this suggestion. Had Mr Ireland intended to say that the plaintiff was uncooperative or had feigned the testing deliberately, I would have expected him to say so in clear terms. Absent such evidence, there is no basis for me to make such a finding against the plaintiff, whom I found to be a witness of truth, a person given to understating rather than overstating his problems, and someone who has attempted to do the best he can post injury. I generally accept and act on his evidence.
55 In his second report on 9 August 2015, Mr Ireland opined:
“The only activity that the worker is precluded from is sustained power gripping with the left hand and work that requires sustained flexion of the interphalangeal joints of the fingers of the left hand. I don’t believe he is otherwise incapacitated from physical work.[53]
[53]DCB 10
56 I have closely read both reports from Mr Ireland. Save for a passing reference,[54] there is little attention given to the question of whether the injury would prevent the plaintiff from playing football at a high level. Given the emphasis which the plaintiff has placed upon this aspect of the consequences to him, I would have expected more to have been said.
[54]DCB 13
57 I am satisfied that the evidence established that the plaintiff injured his left hand at work on 5 July 2012. The nature of the injury was that of a crushing of the deep flexor tendons of the four fingers of the left hand requiring surgery. I am also satisfied that the evidence shows the plaintiff suffered, and continues to suffer, from pain and suffering consequences from the injury which limits the use of his left hand. As a result of the injury, the plaintiff continues to suffer loss of sensation in the fingers of the left hand, and the left little finger continues to spontaneously dislocate. The plaintiff can no longer play football at an elite level and a realistic expectation that he be considered for drafting as a recruit into the AFL has been lost to him because of the injury to the left hand and its consequences.
58 Although the plaintiff continues to suffer pain in his left hand, this is at a relatively low level. However, I accept the evidence from Mr Stapleton and Mr Behan that the plaintiff has reduced grip strength in his left hand. I do not, in this case, act on the evidence of Mr Ireland, preferring the evidence of Mr Stapleton and Mr Behan. Having regard to the plaintiff’s age and his level of education, I find it most likely that his future work prospects have been affected because he can no longer seek employment in heavy manual labouring-type work that requires full strength in his left hand. Given statistically he still has about another forty years in the workforce ahead of him, in my view, the effect of the injury on future work prospects is a serious injury consequence.
59 For these reasons, I am satisfied that the plaintiff has proved, on the balance of probabilities, that he suffers consequences from an injury to his left hand, that when judged by a comparison with other cases in the range of possible impairments, could fairly be described as being “more than significant or marked” or “at least very considerable” within the Act.
60 The application is successful and the plaintiff will have leave pursuant to s134AB(16)(b) of the Act to commence a proceeding claiming damages for pain and suffering only.
61 I will hear the parties on costs.
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