Hennessy v Trusswall (Aust) Pty Ltd
[2023] VCC 259
•28 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. C1-22-00028
| JAMES HENNESSY | Plaintiff |
| v | |
| TRUSSWALL (AUST) PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 February 2023 | |
DATE OF JUDGMENT: | 28 February 2023 | |
CASE MAY BE CITED AS: | Hennessy v Trusswall (Aust) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 259 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – credibility of plaintiff’s evidence – relevance of ice addiction and offences of dishonesty
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Nikolic v Transport Accident Commission [2020] VSCA 148; De Agostino v Leatch [2011] VSCA 249; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Bannon | Maurice Blackburn |
| For the Defendant | Mr G Coldwell | Russell Kennedy |
HER HONOUR:
1As a young man, James Hennessy was a promising athlete who enjoyed an extremely active life. He participated in AFL football, basketball, sprintcar racing, dirt-bike riding, golf, tennis and cricket. By his early twenties, he was playing for Williamstown in the VFL and racing sprintcars competitively, both in Australia and the United States. Achieving at this level must have required hard work, discipline and talent.
2Unfortunately, when he was about twenty-three years of age, Mr Hennessy developed an addiction to methamphetamine (“ice”).
3Mr Hennessy is now thirty-one years of age. His criminal record includes numerous convictions for offences of dishonesty, including theft; burglary; aggravated burglary; obtain property by deception; and handle, receive and retain stolen goods. Mr Hennessy served two substantial periods of imprisonment for those offences in 2019 and 2021.[1] He has also been convicted of other offences, including driving offences, offences related to use or possession of drugs, and the offence of resist emergency worker on duty.
[1]In addition to two other periods of imprisonment and an eighteen-month Community Correction Order which pre-dated June 2018, about which there was no detailed evidence.
4Mr Hennessy’s criminal convictions and work history tell a story of a man cycling in and out of drug use, and the destructive and antisocial behaviours that can be related to that drug use. Depending upon your perspective, it is a tragic story of wasted potential and the destructiveness of Methamphetamine Misuse Syndrome; or a salutary lesson on the personal consequences of engaging in illegal and antisocial behaviour.
5However, it is not actually the story of this proceeding. In this proceeding, Mr Hennessy seeks leave to bring proceedings for pain and suffering damages in relation to an injury suffered to his right hand (particularly his right thumb) while employed by the defendant.
6It is not in dispute that Mr Hennessy suffered a traumatic injury to his right hand on 27 June 2018 as a result of his employment with the defendant, when his right hand was sucked into a roller machine, causing a crush injury and severe laceration of his right thumb, which amounted to a partial amputation.[2] It is also not in dispute that, as a result of that injury, Mr Hennessy was transported by ambulance to Frankston Hospital where he stayed overnight and:
“…underwent an exploration and repair of his right thumb crush avulsion injury on 28th June 2018. At that time he was found to have:
an open comminuted fracture base of the P1 which was reduced and fixed with a k-wire, destruction of his metacarpal phalangeal joint, rupture of his radial collateral ligament and ulna collateral ligament which were repaired with 4/PPDS repair,
[2]Report of Dr Michael Cocks, dated 21 May 2020 at Plaintiff’s Court Book (“PCB”) 166-7; Frankston Hospital Discharge Summary, dated 29 June 2018 at PCB 131
100% division of his extensor pollicis longus tendon which was repaired with 4/O PDS, Avulsion of the superficial branch of his radial nerve which (sic) not repairable.” [3]
[3]Report of Dr Michael Cocks, dated 21 May 2020 at PCB 166. See also Frankston Hospital Discharge Summary, dated 29 June 2018 at PCB 131
7What is in dispute in this proceeding is:
(a) the credibility and reliability of Mr Hennessy’s self-reports of ongoing pain and physical limitations in his right thumb, and the consequences of that pain and physical limitation on his enjoyment of life; and
(b) whether the pain and suffering consequences suffered by Mr Hennessy:
(i)as a result of the impairment of his right hand; or
(ii)as a result of the disfigurement of the area around his right hand,
meet the requirements of a serious injury.[4]
[4]See paragraphs (a) and (b) of the definition of “serious injury” in s325(1) and s325(2)(c) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRCA”)
8A critical plank of the defendant’s submissions was an assertion that Mr Hennessy’s long history of convictions for offences of dishonesty, and his failure to fully and frankly disclose those and other convictions, should lead the Court to conclude that Mr Hennessy was not honest when describing the current symptoms and consequences of the injury to his right thumb.
The credibility and reliability of Mr Hennessy’s evidence
9Mr Hennessy gave evidence in relation to his history of criminal offending and drug addiction in his first and second affidavits, and was cross-examined on it at length.
10In his first affidavit, sworn on 24 August 2021, Mr Hennessy disclosed that he had a “significant forensic history” and that:
“… In the years prior to commencing with the defendant employer, I was jailed for 2 short stints for burglary and theft offences. In August 2016, I was charged with similar offences and sentenced to an 18-month Community Corrections Order, which was just coming to an end when I commenced with the defendant employer.
I had a drug addiction, and the offences were largely committed whilst under the influence of drugs, or to pay for my drug habit.
Subsequent to the work incident with the employer defendant, I re-offended and was jailed for about 10 months in August or September 2018. I was released in 2019.
I met my now partner shortly after my release from jail, I moved to Mildura shortly after that. I was determined to stop offending, stay off drugs and get my life back on track.”[5]
[5]PCB 11
11Mr Hennessy made no mention in this affidavit of the fact that he had been arrested and remanded in prison on 4 March 2021; nor of his conviction on 31 May 2021 of numerous criminal offences; nor of the fact that he was sentenced on this occasion to a total term of imprisonment of slightly more than four months. That term of imprisonment would have seen him released in around July 2021, less than two months before his first affidavit was sworn.
12In his second affidavit, sworn 24 January 2023, Mr Hennessy did refer to a further period of incarceration of approximately four months, however erroneously stated that it occurred in 2020. He did not refer, in his further affidavit, to convictions recorded on 6 December 2022 for speeding and failing an oral fluid test within three hours of driving, which saw his licence cancelled.
13In oral evidence, Mr Hennessy struggled to remember precise dates and sequences of events with respect to his criminal offending and treatment.
14Counsel for the defendant submitted that I should not accept Mr Hennessy’s evidence as to the symptoms and consequences of his injury because:
(a) Mr Hennessy has numerous convictions for offences of dishonesty;
(b) Mr Hennessy knew that his drug use and criminal record was a very relevant issue, but tailored his affidavit to downplay his criminal past and present it as a problem which was overcome quite quickly. Counsel submitted that this amounted to deliberate dishonesty and demonstrated that Mr Hennessy was prepared to tailor and adjust his evidence where it furthered his case;
(c) Mr Hennessy had provided an incorrect history to the two medico-legal psychiatrists, claiming to have been clean for the past four years, when his criminal record demonstrated significant relapses into drug use and other criminal offending from August to October 2019 and in March 2021;
(d) Mr Hennessy had provided an incorrect history to his medico-legal orthopaedic surgeon, claiming to have been seeing his psychologist on a weekly basis and his general practitioner (“GP”) on a monthly basis at a time when he was not seeing either; and not providing his history of criminal convictions and incarceration;
(e) Mr Hennessy had called no lay witnesses to corroborate his evidence and had provided no explanation for the failure to call witnesses such as his partner and parents;
(f) Mr Hennessy had not provided any reports from any treating practitioners for nearly three years; and
(g) Mr Hennessy claimed to be incapable of sprintcar racing and yet:
(i)his psychologist had recorded in her clinical notes on 17 January 2020 that he “wants to return to sprint car racing and has plans to do so with his dad”[6] and on 23 January 2020 that “[h]is dream is to return to sprint car racing”[7]; and
(ii)his current GP had recently certified him as fit for sprintcar racing.
[6] Defendant’s Court Book (“DCB”) 29
[7] DCB 31
15For the following reasons, I do not accept the defendant’s submissions. First, Mr Hennessy’s demeanour in the witness box was of a person genuinely endeavouring to tell the truth in difficult and emotionally-challenging circumstances. He listened carefully to the questions and answered them frankly. On a number of times, he paused and appeared to be taking care to make sure his recollection was accurate before answering. There was no hint of melodrama or performance in his answers – to the contrary, his responses in relation to his symptoms were initially understated. He was not symptom or injury-focused, rather, he expressed a determination to get back to work and activities he found meaningful and engaging, and demonstrated a history of seeking modifications to make work possible and attempting to engage in recreational activities such as golf.
16Second, it is not in dispute that, since he first became addicted to methamphetamine, Mr Hennessy’s life has spiralled out of control. It is also not in dispute that he has a lengthy record of criminal convictions and has been brought before the Magistrates’ Court in relation to those convictions on many occasions. It is not surprising, in this context, that his recall of these dates and the sequence of events (both in relation to his criminal offending and treatment) was not always accurate.
17Third, I accept Mr Hennessy’s evidence that he has been motivated by a genuine and deeply-felt commitment to break his cycle of drug abuse and criminal conduct since at least the time he moved to Mildura in late September 2019. His oral evidence in relation to this issue was compelling. It was also clear from his demeanour in Court that he was very distressed and ashamed of his relapses into drug use since September 2019 and found it difficult to talk about these relapses. I observed him to shake and hang his head, or tear up when asked questions about this history. On one occasion, he became very distressed and the Court adjourned. None of this appeared to me to be performative.
18Fourth, I do not accept that it would have been apparent to Mr Hennessy that his criminal record was “extremely relevant” to his claim in this proceeding about his injured right hand. That criminal record, and associated periods of incarceration, provided relevant context to Mr Hennessy’s claims in this proceeding and was appropriately disclosed. However, its relevance, and Mr Hennessy’s capacity to understand its relevance, should not be overstated.
19Fifth, it is unlikely that Mr Hennessy would be sophisticated enough to deliberately and dishonestly tailor his evidence to omit reference to recent offending, yet simultaneously not sophisticated enough to realise that, upon him disclosing a “significant forensic history” in his first affidavit, his criminal record would be obtained and analysed for inconsistencies. The suggestion that he would so carefully and dishonestly craft his evidence was also not consistent with his stoic presentation; and the frank admissions he made during cross-examination in relation to his ability to work and his positive outlook on life.
20Sixth, I have had regard to the fact that Mr Hennessy has been convicted of numerous offences of dishonesty. However, the type of dishonesty demonstrated by the commission of property offences is not necessarily generalisable to other contexts, such as Mr Hennessy’s sworn evidence in this proceeding.
21Seventh, Mr Hennessy provided an adequate explanation for his lack of treatment over the last three years, which resulted from a combination of his periods of incarceration, the difficulties in finding a GP in Mildura after the COVID-19 pandemic, and the lack of improvement following past treatment. Mr Hennessy had very recently obtained treatment from a GP in Mildura, Dr Victor Obatoki. It would certainly have been preferable if a report had been tendered from that GP. However, Mr Hennessy gave evidence that he commenced seeing Dr Obatoki only two months prior to this hearing and had seen him, he thought, only twice. Further, Dr Obatoki’s clinical records were available to both parties and might have been tendered by the defendant if inconsistent with Mr Hennessy’s evidence.
22Eighth, I have considered clinical notes tendered in evidence from psychologist Ms Kathleen Mills, from January 2020, which described Mr Hennessy’s desire to return to sprintcar racing. I have also considered a form from Dr Obatoki’s clinical records, signed by Dr Obatoki, which was tendered by the defendant.[8] That form was entitled “SPEEDWAY AUSTRALIA 2022/23 MEDICAL EXAMINATION [COMPLETED BY A MEDICAL PRACTITIONER]”. In it, Dr Obatoki ticks a box to confirm that Mr Hennessy is “[n]ormal” in relation to his “[u]pper limbs - power, tone and reflexes” and another box to confirm that “I could find no evidence of any physical or mental illness that would exclude the applicant from competing in speedway racing”[9] in the sprintcars racing division.
[8] Exhibit D4
[9] Ibid
23These clinical records can be contrasted with Mr Hennessy’s evidence in his first affidavit that he continued “to avoid activities like sprint car racing”;[10] and oral evidence that he had not attempted to get back into sprintcar racing and that “[t]hey will not let me pass on medical”.[11]
[10] Affidavit of James Hennessy, dated 24 January 2023 at paragraph [17] at PCB 20
[11] Transcript (“T) 36, Lines (“L”) 13-14
24In relation to the notes in Ms Mills’ clinical records, these were not put to Mr Hennessy in cross-examination and date back to 2020. It is not inconsistent with Mr Hennessy’s evidence for him to have had some aspirations to return to sprintcar racing in 2020, albeit aspirations which ultimately transpired to be unrealistic. He generally presented as a person with a positive attitude, who was willing to attempt activities and consider modifications to those activities, notwithstanding his injury.
25In relation to the form completed by Dr Obatoki, Mr Hennessy’s explanation that he required the form to be completed in order to obtain insurance so that he could go into the pits at sprintcar racing appeared credible and genuinely given. It is consistent with the history Mr Hennessy provided to medico-legal psychiatrist, Dr Justin Lewis, of continuing to mentor junior sprintcar drivers.[12] The form also incorporated, by reference, “Medical Standards” available at which were not tendered in evidence. Without having regard to those standards, it is difficult to assess what Dr Obatoki understood to be the threshold requirement to tick “[n]ormal” in relation to Mr Hennessy’s upper limbs, or to tick the box stating that he had no evidence that Mr Hennessy had any physical or mental illness that would exclude him from competing in speedway racing.
[12] Report of medico-legal psychiatrist, Dr Lewis, dated 14 December 2022 at PCB 186
26Ninth, I have also considered the fact that an adverse inference may be available to me for Mr Hennessy’s failure to call his partner or parents to give evidence. However, in my view, any such adverse inference is not sufficient to cause me to reject Mr Hennessy’s oral evidence of his symptoms. I have formed this view, having regard particularly to the gateway nature of this application; the fact that under the Serious Injury Application Practice Note, any such evidence would prima facie not be subject to cross-examination; and the fact that any such evidence would have largely been based on Mr Hennessy’s self-reports and, as such, may have been of limited usefulness.[13]
[13]Nikolic v Transport Accident Commission [2020] VSCA 148 at paragraph [69], applying De Agostino v Leatch [2011] VSCA 249 at paragraph [51].
27Tenth, I have also considered the inaccurate histories recorded by some of the medico-legal experts in this proceeding. These inaccuracies are relatively minor and may be contrasted with the frank admissions made by Mr Hennessy on other occasions. Care must be taken with recorded histories, which may be affected by misunderstandings of both question and answer; and do not constitute a verbatim record of what was said.
28Finally, Mr Hennessy’s description of the symptoms of his injury were accepted in the reports of both Dr Robert Din, a medico-legal orthopaedic surgeon retained by Mr Hennessy; and Dr David Elder, a medico-legal consultant in occupational and environmental medicine, retained by the defendant. Both conducted a physical examination of Mr Hennessy’s right thumb and observed reduced range of motion and altered sensations, in addition to recording Mr Hennessy’s self-reports of pain and stiffness. Neither raised any concern that Mr Hennessy’s self-reports of pain and dysfunction in his right thumb were inconsistent with the injuries that he suffered.
29The only relevant expert not to accept Mr Hennessy’s symptoms was Mr Thomas Robbins, a medico-legal hand, plastic and reconstructive surgeon retained by the defendant. He concluded in his report that “I doubt that his condition is physical, or is requiring surgery in the future”[14] and that “I do not think work has contributed physically to his problem”.[15] Surprisingly, Mr Robbins was able to reach this conclusion without any physical examination of Mr Hennessy’s hand, and on the basis solely of a telehealth consultation and review of documents. I prefer the evidence of Dr Din and Dr Elder, who conducted physical examinations of Mr Hennessy.
[14]DCB 24
[15] Ibid
30Having considered all of the above, the far more likely explanations for the inconsistencies, inaccuracies and omissions in the evidence, and histories given by Mr Hennessy, are that he found it difficult to remember and describe the details of the events of the last few years; that he did not understand that comprehensive and specific disclosure of each matter in his criminal record was required in his affidavit;[16] and that he actively avoided thinking or talking about the details of his relapses into drug use, because he was ashamed and found them distressing.
[16]I am also not prepared to assume, in all the circumstances, that his solicitors ensured that he understood that this was the case.
31I accept that Mr Hennessy is not a reliable historian in relation to past events, particularly concerning his drug use and criminal convictions. I do not accept that this lack of reliability is generalisable to his evidence in relation to the symptoms and consequences of his right-hand impairment. His evidence of those symptoms and consequences was genuine and compelling and, if anything, delivered in an understated and stoic manner. I accept it.
Do the pain and suffering consequences of the impairment of Mr Hennessy’s right thumb meet the requirements of a serious injury?
32In closing submissions, the defendant relied upon the decision of TTB SMS Pty Ltd v Reading,[17] in which the Court of Appeal held that a trial judge was “plainly wrong” to find that an impairment to the right little finger and ring finger of the plaintiff was a serious injury.
[17] [2020] VSCA 203
33TTB SMS Pty Ltd v Reading[18] stands as a reminder that Mr Hennessy bears the onus of establishing that the injury to his right hand has created a permanent and serious impairment of a body function. Self-evidently, it is not sufficient to show that an injury has some consequences which are likely to be permanent. The word “serious” must be given work to do. That work is statutorily defined in s325(2)(c) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRCA”) – i.e.: the consequences of the impairment of Mr Hennessy’s right hand must be fairly described “as more than significant or marked” and “at least very considerable”.[19] In assessing whether the consequences are “at least very considerable”, the Court must compare the consequences of the impairment, not just with other possible impairments or losses of the right hand, but also with other cases in the range of possible physical impairments or losses of a body function, such as the spine, the shoulder or the knee.[20]
[18] Ibid, at paragraphs [30]-[31]
[19] WIRCA, section 325(2)(c)
[20] TTB SMS Pty Ltd v Reading (supra) at [31]
34TTB SMS Pty Ltd v Reading also stands as a reminder that the Court must carefully consider, not only the claimed consequences of the impairment, but also the retained and unaffected capacities of the plaintiff.[21]
[21] Ibid
35However, TTB SMS Pty Ltd v Reading is not authority for the proposition that an impairment of a digit of the hand cannot amount to a serious injury. Each case must be considered on its own facts.
36On the basis of Mr Hennessy’s evidence, I accept that:
(a) he suffers ongoing pain in his right hand, which is focused around his right thumb, but often moves up into his right wrist and arm, and sometimes into his shoulder. Although he does not describe this pain as “constant”, it is serious enough to often wake him up at night. Further, the area where there is scarring is very tender and sensitive to touch. His pain levels increase to “intense” if this area is knocked. Accordingly, he must constantly be vigilant to avoid this occurring. The pain also increases in colder weather;
(b) the pain he feels is significant enough to justify prescription of significant pain medication, including Gabapentin, 100 milligrams, one to two tablets per day and, more recently, Lyrica, 150 milligrams twice per day;
(c) he also suffers from pins and needles in his hand, which are significant enough to wake him from sleep;
(d) the treatment which he has received for his injury is relatively limited, particularly in recent times. When he initially suffered the injury, he had a surgical fixing of the fracture and was an inpatient at Frankston Hospital for two days. His hand was immobilised in a sling for six weeks. He subsequently had some hand therapy and myotherapy. I accept that his limited treatment can be explained by the lack of benefit he received from that treatment and the derailing effect of his periods of drug use and incarceration. Nevertheless, I have taken into account the limited treatment as a relevant factor which weighs against a finding that his injury is serious;
(e) he is largely able to perform the normal activities of daily living without assistance, however it is often a struggle. For example, he struggles to hold a pen and has difficulty writing; he has difficulty tying his shoelaces; he has difficulty holding a mobile phone and finds it painful to tap the screen with his right thumb; shaving, fastening buttons and closing zips are all difficult; he finds cutting up food difficult and dangerous and so he must largely rely upon his left hand;
(f) he struggles to pick things up and often drops items. He is limited to lifting no more than 15 kilograms in his right hand;
(g) he feels clumsy and is embarrassed and frustrated by his limitations. Effectively, he must live with constant daily reminders of the impairment of his right hand. This has flow-on effects for his relationship with his partner and his young son, and his enjoyment of socialising with others;
(h) he is right-hand dominant, but struggles to grip items with his right hand or to make a closed fist. For example, he cannot grip onto a motorbike handle, or a cricket bat or golf club, and struggles to use tools required in his occupation. He has been proactive in seeking out alternatives and adaptations in an endeavour to participate in activities such as golf and to use the tools required for his employment, however with limited success; and
(i) as a result of his right-hand impairment, he is no longer able to participate in activities which he found rewarding such as dirt-bike riding, sprintcar racing, AFL football, basketball, golf, tennis and cricket.
37At the age of thirty-one years, Mr Hennessy is a relatively-young man, who might otherwise have expected many years of physical activity ahead of him. He is a man who particularly enjoys highly physical and adrenaline-based activities, such as football, dirt-bike riding and sprintcar racing. His participation in these activities has also been hampered by his drug addiction and criminal activity. However, I accept that he would have returned to these activities were it not for his injury, although not at the elite level, as might have been the case had he not become addicted to ice.
38Mr Hennessy’s impairment is limited to his right hand. He has significant retained physical capacities. Given his positive attitude, I expect that Mr Hennessy will be able to find other meaningful recreational activities in the future. However, I accept that, for a man such as Mr Hennessy, the loss of capacity to enjoy unimpeded highly-physical recreational activities is a very considerable consequence. I also accept that this has had serious flow-on consequences for his social life and relationship with his child.
39Mr Hennessy is also a man who is primarily suited to, and obtains satisfaction from, employment which requires physical labour and manipulation of tools, such as a trade. The impairment of his right hand limits his options in relation to such employment. Nevertheless, Mr Hennessy continues to have options for meaningful employment available to him (such as completing his electrical apprenticeship). However, I accept that Mr Hennessy’s right-hand impairment will have an ongoing impact on his capacity to perform – and enjoy - the duties of such occupations. For the foreseeable future, he will be required to proactively seek out modifications which reduce the impact of his duties on his right hand.
40I have considered carefully Mr Hennessy’s significant retained capacities. However, having considered all of the above matters and particularly his ongoing and significant pain; his daily struggle to perform the activities of daily living and consequent constant reminder of his impairment, and his previous enjoyment of highly-physical activities which he can no longer perform, I am satisfied that the impairment to Mr Hennessy’s right hand is “at least very considerable” and certainly “more than significant or marked”.
41I also accept, on the basis of the evidence of Dr Din, that the impairment of Mr Hennessy’s right hand is permanent.[22]
[22] PCB 179, at paragraph [3]
42I accept that Mr Hennessy has suffered a serious injury within the meaning of s325 of the WIRCA. I will grant Mr Hennessy leave to sue for damages for pain and suffering and hear from the parties on the question of costs.
Do the pain and suffering consequences of the disfigurement around Mr Hennessy’s right thumb meet the requirements of a serious injury?
43It is not necessary to decide this issue, given my conclusion that Mr Hennessy has a serious injury with respect to the pain and suffering consequences of his right hand impairment. However, for completeness, having had the opportunity to assess the scarring on Mr Hennessy’s right hand in person and in photographs tendered in evidence, I was not satisfied that his disfigurement passed the threshold requirement of a serious injury.
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