Hewadewage v Natex (Aust) Engineering Pty Ltd
[2018] VCC 1885
•3 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-01256
| ANANDA HEWADEWAGE | Plaintiff |
| v | |
| NATEX (AUST) ENGINEERING PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October 2018 | |
DATE OF JUDGMENT: | 3 December 2018 | |
CASE MAY BE CITED AS: | Hewadewage v Natex (Aust) Engineering Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1885 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the right ring finger – disfigurement – pain and suffering only – range case
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; McLean v Grandband Pty Ltd [2009] VCC 868; Hollis v Transport Accident Commission [2011] VCC 502
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C O’Sullivan | Adviceline Injury Lawyers |
| For the Defendant | Mr T Storey | Russell Kennedy Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 10 September 2015 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) and clause (b) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function;
(b) permanent serious disfigurement.”
4 The body function relied upon in this application is the right ring finger (“the finger”).
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By s325(1)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9 Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
12 The plaintiff relied upon one affidavit and he was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is aged fifty-four, having been born in October 1964 in Sri Lanka. He is married with two teenage children.
14 After leaving school, the plaintiff completed an apprenticeship as a motor mechanic, and then worked in that capacity.
15 The plaintiff moved to Australia in 1992 and worked as a motor mechanic in various garages. He then worked as a machine operator for Finlay Engineering and started work for the defendant in Campbellfield on or about 27 February 2008.
16 The plaintiff was employed by the defendant as a full-time CNC machine operator. The defendant produced parts for various industries, including car manufacturing, and the plaintiff’s job involved operating various machines, and he was often required to lift and manually handle heavy materials.
17 The plaintiff was cross-examined in some detail about the duties he was performing with the defendant, including operating a CNC milling machine.[3] These questions related to the level of manual dexterity required to perform that job.[4]
[3]Transcript (“T”) 2
[4]T4
18 The plaintiff had to load the parts on the machine that was essentially computer controlled. He would use various tools to set the piece of metal into the machine – Allen keys, spanners and hand tools.[5]
[5]T3
19 The plaintiff disagreed the tasks he undertook did not involve especially heavy lifting. He also did some heavy lifting, moving a piece of metal that could weigh 30 kilograms to the bench and along the bench to cut it.[6] He carried out a range of various tasks and agreed that in the main, from day to day most of the items he handled weighed between 500 grams and 3 kilograms.[7]
[6]T5
[7]T6
20 On the said date, the plaintiff was asked by the defendant to clean some rubbish material off the floor and place it into large stillages. At one point, while engaged in that task, the plaintiff had his hand resting on a stillage. A forklift driver picked up and moved another stillage, and, in doing so, jammed that stillage against the plaintiff’s right hand (“the incident”).
21 At the time of the incident, the plaintiff was wearing gloves. He took off the glove on his right hand, and immediately saw a lot of blood. He was taken by co‑workers to the Northern Hospital Emergency Department, where he was told that part of his right ring finger had been amputated. He underwent surgery under general anaesthetic (“the surgery”) and stayed in the Hospital overnight.
22 The plaintiff completed a WorkCover Claim Form on 14 September 2015, and his claim was later accepted.
23 Following the surgery, the plaintiff began regular hand therapy. Throughout 2015 and early 2016, he had regular reviews at the Northern Hospital.
24 About three weeks after the incident, the plaintiff returned to work on light duties and reduced hours. He then wore a plastic cap to protect his finger all the time and used his left hand. He was still using an Allen key and a screwdriver with his right hand but he did not have to do any heavy lifting. His job involved putting little parts into boxes.[8]
[8]T7
25 Over time, the plaintiff returned to working pre-injury hours; however, he did not return to all of his old jobs with the defendant and he was never given the heavy work again.[9]
[9]T33
26 The plaintiff’s employment was terminated on or about 9 March 2016. Redundancy for all staff had been discussed prior to the incident. The plaintiff was not spoken to specifically about it before or afterwards.[10] He could not say why he was made redundant. Thereafter, he was not offered any further work by the defendant.[11]
[10]T7
[11]T8
27 On 10 October 2016, the plaintiff completed a claim for impairment benefits which was later accepted.
28 In about late May 2017, the plaintiff started working for Yann Engineering as a full-time machine operator, and continues in that role.
29 The plaintiff’s job requires him to use hand tools and screwdrivers. As a result of his problems gripping, using the tools is now difficult for him, and he often has to use both hands. Doing simple manual tasks at work is now slower and more awkward for him because of his injury.
30 The plaintiff has to use his right hand all day at work. By the end of a working day, he has a pulsing pain in the finger, and his hand is tired and sore; however, he needs to work and earn an income. He only has skills and experience in manual work, and feels he just has to work in pain and put up with it as best he can.
31 The plaintiff is right-hand dominant, and since the incident, he has been left with a weak right hand. He has problems gripping, and that makes his job as a machine operator quite difficult. The finger is more painful when exposed to the cold. The plaintiff’s workplace is quite cold, and so often he works with increased finger pain.
32 The plaintiff currently operates similar machines to those in his previous job.[12] He still has difficulty with his job, but he keeps trying to do his duties every day. He uses both hands but before his injury, his right hand “was better”. He tries to keep his job.[13] He cannot do everything he is supposed to do at work. It is now more difficult because his hand is weaker. He has not needed to take time off work because of his injury.[14] He has tried to work because he wants to keep his job.[15]
[12]T9
[13]T10
[14]T11
[15]T12
33 The plaintiff has difficulties using hand tools and he cannot sometimes grab them properly, and uses two hands. He did not have problems using hand tools working for the defendant. He now cannot do any heavy lifting, such as putting heavy metal plates in a machine, which is one of the tasks that is presently asked of him.[16]
[16]T32
34 The plaintiff now has trouble with fine motor tasks, such as doing up and undoing buttons, belts and shoelaces. As a result, dressing and undressing can be slow and awkward.
35 The plaintiff’s finger remains very sensitive since the incident. If he knocks it or something bumps into it he gets a sharp pain that travels through his body. He confirmed he told Mr Stapleton that he avoided any contact with the right finger.[17] He tries to avoid the finger but sometimes has to use it.[18]
[17]T21
[18]T22
36 Prior to the incident, the plaintiff used to play cricket with his mates and children. Catching a cricket ball or having it knock against the finger causes him severe pain, and he now avoids playing cricket. This is frustrating for him as he really enjoyed playing.
37 The plaintiff is embarrassed by the appearance of the finger. He tries to hide it so people will not ask him about it. He often notices people staring at the finger and he tries to put it in his pocket to hide it.[19]
[19]T19, T30
38 The plaintiff now finds handwriting quite difficult because of his problems gripping, and his writing is much messier than it used to be. He finds his handwriting “not bad but a little bit different”.[20]
[20]T28
39 Prior to his injury, the plaintiff did a lot of gardening at home. He grew a lot of vegetables, including tomatoes, chillies and silver beet. He also did the mowing and weeding. Now he needs help from his wife and children with the garden, because he finds those tasks quickly increase his finger pain, and his hand gets tired and sore very quickly.[21]
[21]T20, T30
40 The plaintiff’s finger pain occasionally wakes him during the night, and more often in the colder months. When it is cold, the colour changes at the top of the finger and he wakes up with pain and has to massage it.[22]
[22]T31
41 On 20 June 2017, the plaintiff last visited Dr Vipulaguna in relation to the finger when he attended for a WorkCover certificate. The plaintiff then reported mild pain in that finger, and was having regular hand therapy. On examination, the finger was swollen and movement was restricted. He agreed he had attended that clinic on a number of occasions subsequent thereto, reporting health issues unrelated to his incident injury.
42 The plaintiff has not required prescription medication since 2017. He takes some Panadol.[23] The frequency depends: sometimes he experiences pain at night and he takes two Panadol, but not every night. He takes it especially in winter time. The doctor said it is alright to keep going with Panadol.[24] No further treatment has been suggested.[25]
[23]T12
[24]T14
[25]T32
43 The plaintiff does not have any problems drinking from a cup of tea, eating family meals or undertaking personal hygiene tasks. He has a little problem with dressing, with buttons, as his finger is sensitive to the slightest touch. He dresses slowly. He agreed he had very few problems dressing.[26] He can feel his finger every day when dressing.[27]
[26]T17
[27]T18
44 The plaintiff agreed he can still do various tasks at home.[28]
[28]T19
45 The parties had a look at the plaintiff’s finger and the site of the graft on his wrist. The plaintiff explained the top of the finger was sensitive. There had not been any nail growth since the incident.[29]
[29]T14
46 The plaintiff tries to mainly use his left hand but sometimes also uses both hands. He agreed he preferred using his left hand and if given the choice, he would lift something with his left hand.[30]
[30]T22
47 There was film of the plaintiff’s activities on 7 October 2018.
48 The plaintiff was shown walking with family members at a Sunday market. He was shown holding a plastic bag, initially in his right hand and then changing hands whilst walking.[31] He then had a meal with his family at a shopping centre. At various times, he had his right hand in his pocket whilst walking through the shopping centre. After being shown walking through the supermarket, the plaintiff took a milk container from the fridge in his right hand.
[31]T25
49 The plaintiff agreed he could hold a plastic bag and did not get any pain changing hands with the bag. He can lift up milk, and even a 5-litre can of oil with “this finger”. He could push a trolley. He agreed he was shown in the film picking up a milk container. When asked whether it was 2 or 3 litres, he said it was 3 litres.[32]
[32]T27
50 In re-examination, the plaintiff confirmed how he could hold the milk container between his thumb and index finger, with the index finger holding the weight.[33] That was how he had carried the plastic bag at the market. He confirmed he had altered his grip for lifting things like the milk container. He put his right hand in his pocket during the film because he will try to hide the finger as people see it and ask him what happened.[34]
[33]T29
[34]T30
The Plaintiff’s medical evidence
Treaters
Northern Hospital
51 The plaintiff was seen at the Northern Hospital Emergency Department on 10 September 2015, having injured his right ring finger at work in a slicing crushing injury.
52 The plaintiff was admitted under the Plastics Department, and under general anaesthesia, the wound was debrided. He had an osteotomy of the third phalanx. The neurovascular island flap based on the radial digital nerve and artery was used to cover the exposed P3 to preserve the FDP insertion. The plaintiff had a full thickness skin graft from his wrist. He was discharged on 11 September 2015.
53 The plaintiff was subsequently seen on 17, 23, 25 and 30 September 2015 by a hand therapist, and then in the Plastics Department on 7 and 14 October 2015. He last attended there on 22 April 2016. He was seen by a hand therapist on 4, 11 and 19 November and 2 December 2015, and 7 and 13 January and 15 February 2016.
54 An x‑ray of the plaintiff’s right finger on 10 September 2015 was reported as follows:
“The distal portion of the distal phalanx together with associated soft tissues was present on this x‑ray. The bony fragment does not appear to be comminuted in its appearance. Earlier x‑rays of the right hand were reported: there was an oblique fracture across the distal portion of the distal phalanx of the fourth finger. The bony fragment was absent. No dislocation or further bony fracture was seen.”
Dr Vipulaguna, general practitioner
55 The plaintiff remains under the care of Dr Vipulaguna at Roxburgh Park Super Clinic. Dr Vipulaguna most recently reported in September 2018, having last seen the plaintiff for his finger in mid-2017.
56 In that report, Dr Vipulaguna noted that as a result of the incident injury, the plaintiff cannot properly use his right ring finger, and it has also been shortened.
57 Dr Vipulaguna considered the plaintiff was suffering from a work-related injury of which his employment had been the sole contributing factor. He diagnosed accidental amputation of the distal phalanx of the right ring finger.
58 Dr Vipulaguna noted the plaintiff’s right ring finger was short, and he could not move it in full range. His right hand strength and grip was significantly weaker. He experienced tingling and burning sensations frequently in the injured right ring finger, and he was depressed due to his permanent disability.
59 Dr Vipulaguna issued the plaintiff’s last WorkCover certificate on 20 June 2017. Thereafter, the plaintiff did not request any further WorkCover capacity certificates.
60 When he last saw the plaintiff on 20 June 2017, Dr Vipulaguna said he could perform his pre-injury duties with the following restrictions: he needed to protect his finger while working, no lifting more than 5 kilograms by both hands, and he needed 10‑minute breaks after each hour.
61 Dr Vipulaguna did not think any further treatment would help the plaintiff, because he could not get the amputated part of his right ring finger back.
62 As a result of that injury, Dr Vipulaguna thought the plaintiff had a permanent disability of his right hand. His prognosis was very clear. He cannot regain his amputated part of the finger, so will not be able to use that finger in full range and will not be able to use his right hand in full strength in the future.
Medico-legal evidence
Mr Murray Stapleton, plastic and hand surgeon
63 Following examination on 4 April 2018, Mr Stapleton noted the incident circumstances and subsequent treatment. There was a return initially to lighter duties, and the plaintiff is now working unrestricted for Yann Engineering.
64 On examination, the plaintiff reported his right finger constantly aches. The fingertip is very sensitive, and he is careful not to bump it or have any pressure applied to it. His grip power is diminished. Of what remains of the terminal of his right ring finger, there is 2 centimetres of partial transfer sensory loss, ie the sensation is not the same as the other side, but he is able to discern the difference between sharp and blunt, hot and cold, rough and smooth. The distal interphalangeal joint still is present, and shows a small degree of flexion.
65 On examination, there was a loss of length of the finger of 2 centimetres. The distal interphalangeal joint remained flexed from 0 to 10 degrees. Two centimetres of partial transverse sensory loss was noted.
66 Mr Stapleton diagnosed a crushing amputation of the tip of the plaintiff’s right ring finger on his dominant hand. He thought the prognosis was that the plaintiff has reached maximum medical improvement, and no further treatment was required.
67 Mr Stapleton noted the restrictions that the plaintiff places upon himself are that he avoids any contact with the right ring finger that remains, he is careful when his right hand is in confined spaces that the tip is not abraded, and where once he might well have lifted an object with one hand, now he is inclined to use two. Mr Stapleton also commented that because it is the plaintiff’s dominant hand that has been injured, his social, domestic and recreational pursuits are obviously all affected.
The Defendant’s medical evidence
68 The clinical notes from the Roxburgh Park Super Clinic were tendered, detailing examinations of the plaintiff between 13 October 2012 and 17 September 2018.
Medico-legal evidence
Dr Yong, occupational physician
69 The plaintiff saw Dr Yong in November 2015.
70 The plaintiff then stated he had tenderness at the tip of the right ring finger stump. He was seeing a hand therapist weekly at Northern Hospital for passive treatment and supervision of an exercise program, and he had a daily exercise program. He had stopped taking painkillers a few weeks earlier, and at that time had commenced a return to work program with full-time restricted duties.
71 On examination, Dr Yong noted the amputation at the distal interphalangeal joint of the finger, with the stump being tender to touch at the tip. There was no swelling. There was reduced light touch sensation around the stump. There were obvious scars at the dorsal and palmar aspect of the stump, consistent with the surgery.
72 The range of movement of the finger was reduced at the interphalangeal joint as 0 to 30 degrees, and at the metacarpal phalangeal joint of 0 to 70 degrees. There was reduced power in the finger.
73 The power for pincer grip, opposition strength and interossei strength was reasonable. There was reduced grip strength with the pincer grip between the right thumb and right finger stump.
74 In summary, Dr Yong described a crush injury to the right ring finger leading to amputation of the tip. The plaintiff was then progressing through an activity-based recovery program.
75 Dr Yong thought the plaintiff had a current capacity to perform tasks within the following restrictions: avoid repeated gripping tasks involving the right finger, avoid lifting more than one kilogram involving gripping of the finger, and avoid repeated firm pushing or pulling involving the finger.
76 Dr Yong attended for a worksite assessment on 16 November 2015.
77 In his report, Dr Yong detailed the tasks the plaintiff was currently performing, some of which were his pre-injury tasks. The other components of the role included handling bars with operating pointer machines.
78 Dr Yong concluded the plaintiff had a current capacity for work within the restrictions detailed in his earlier report. He thought the current duties comply with the restrictions and would be considered reasonable. The proposed tasks, which include handling bars and cutting billets, could be introduced on a graduated basis, as could the tasks involving using the pointer machine.
79 At that stage, Dr Yong would anticipate the plaintiff would be able to gradually introduce the remaining pre-injury tasks over four to six weeks and be able to return to pre-injury hours and duties. The worksite assessment did not cause him to alter any of his clinical opinion.
80 Dr Yong thought the following tasks complied with the restrictions and would be considered reasonable: load light-weight parts into a machine (parts weighing 200 to 800 grams), using an airgun with compressed air to clean swarf from the work area, and quality checks using digital Vernier callipers.
Dr Joseph Slesenger, specialist occupational physician
81 Dr Slesenger examined the plaintiff on 13 April 2016.
82 The plaintiff then advised he had sensitivity at the tip of the finger. He had difficulty with gripping and with fine tasks. He could do up buttons, hold a knife, and hold a screwdriver and tools, but said his power was reduced.
83 At that stage, the plaintiff was not taking any medication. He had been discharged from the Northern Hospital’s care and he was seeing a hand therapist on an alternate weekly basis.
84 On examination, inspection of the right hand revealed an amputation of the distal interphalangeal joint of the finger, with the stump being well healed. There were no trophic changes, no scarring, and no wasting, no Dupuytren’s contracture, no hypothenar or thenar wasting. There was no alteration in hair distribution. There were no nail changes (there was not a nail). There was tenderness to palpation at the tip of the ring finger, and the plaintiff was able to grip, but his finger was limited to reaching within one centimetre of his right palm.
85 The upper forearm in circumference measured 26 centimetres on the right and left. Dr Slesenger noted the stump had healed, however, the plaintiff had residual symptoms in the finger.
86 Dr Slesenger thought the plaintiff did not have the capacity to return to pre-injury duties, though he could to alternate duties. In his view, the plaintiff could now transition to a self-managed exercise program, but he recommended the plaintiff see his hand therapist three more times before that happened. He did not anticipate any reduction in the plaintiff’s capacity to function, should he transition to a self-managed exercise program.
87 Dr Slesenger was provided with the worksite assessment performed by Dr Yong on 16 November 2015.
88 Dr Slesenger thought the plaintiff had the capacity to return to work within pre-injury hours with the following restrictions: avoid right hand repeated gripping, lifting greater than 3 kilograms, and firm pushing and pulling. He thought the restrictions could not be regarded as being permanent, noting the plaintiff had reported improvements since the surgery.
89 Dr Slesenger was also of the view that the plaintiff had not exhausted all avenues of treatment. For example he would benefit from a referral to a pain specialist. He would therefore recommend at that stage, that there was potential for further improvement and possible return to full pre-injury duties.
Dr David Barton, consultant occupational physician
90 Dr Barton examined the plaintiff in August 2016.
91 The plaintiff then described some trouble with the end of the finger. The finger was generally painful, with pain extending into the palm. The pain was present all the time, and the finger generally felt cold. The plaintiff described some sensitivity to slight touch and knocking of the end of the finger.
92 Dr Barton noted the reasonably well healed stump and the small area of scarring over the front of the right wrist consistent with the donor graft site.
93 On examination, there was a normal range of extension in the fourth metacarpophalangeal joint and proximal interphalangeal joint of the finger. There was no effective movement of the small stump beyond the distal interphalangeal joint.
94 There was quite marked sensitivity and apprehension to very light touch with the end of a paperclip throughout most of the middle phalanx of the right ring finger, which Dr Barton thought was somewhat contrived and excessive.
95 There were signs of use of both hands, and these changes were equally present on both sides. There were minimal signs of use of the end of the right finger. Forearm circumference was equal on both sides.
96 Dr Barton thought at that stage, the result looked quite good, post-surgery. It was clear from the way the plaintiff moved the finger during the consultation that he was very much protective of it. He thought the plaintiff did, however, need to be encouraged to practise the dense desensitisation techniques and to exercise the finger as much as possible.
97 Dr Barton felt the way the plaintiff tried to avoid using the finger in gripping and handling things seemed contrived, and suggested the plaintiff was not as disabled as he portrayed. He expected the plaintiff would be further along the road to recovery, as it was eleven months since the surgery. He thought the lack of a job to go to may be playing a part, influencing how the plaintiff presented with the finger.
98 Dr Barton considered the plaintiff had persistent dysfunction following an amputation of the end of the finger treated surgically. He would have expected the plaintiff to have adapted and to be able to use the hand more normally than he demonstrated.
99 Dr Barton thought the plaintiff had the capacity to return to full hours, but with some slight modification of duties. Depending on what work was available, he could do much of the CNC machine operating, machine setup, and other similar functions.
100 Dr Barton noted the plaintiff was currently taking Celebrex, which was of questionable relevance. He thought the plaintiff may be better on paracetamol. In his view, there were no clinical indications for further hand therapy, and the thing that would get the plaintiff better was his own exercising and desensitisation techniques.
Mr John Anstee, plastic and reconstructive surgeon
101 Mr Anstee examined the plaintiff in January 2017.
102 On examination, Mr Anstee stated he found the plaintiff a pleasant, cooperative man who did not seem to be exaggerating. He noted the amputation, and that the range of movement at each joint of the finger was reduced and reported accordingly in the upper extremity impairment evaluation. He also noted there was partial loss of sensation, with 2 point discrimination between 6 millimetres and 15 millimetres over the distal portion of the right ring finger.
103 In addition, the plaintiff had scarring which included:
· 15-millimetre x 15-millimetre of full thickness graft over the remaining pulp of the right ring finger
· a proximal scar extension from this area measuring 15 millimetres x 1 millimetre
· 40-millimetre x 20-millimetre over the volar and ulnar aspect of the right wrist – the site of the skin graft harvest
104 Mr Anstee did not see the plaintiff exceed the range of movement measured in the formal examination.
105 Mr Anstee noted treatment had ceased and the plaintiff will not recover from his injury. Any right-handed task will have been made more difficult by virtue of the injury.
106 Mr Anstee doubted the plaintiff was more likely to suffer injury in occupational and other activities. His distal stump was not completely insensate, and was, in any event, shorter than the middle finger. He thought thermal injury, though not impossible, was unlikely.
107 Mr Anstee attributed a whole person impairment involving amputation, sensory loss and reduced range of movement, together with a percentage for scarring.
Mr Darrell Nam, plastic and reconstructive surgeon
108 Mr Nam examined the plaintiff in June 2018.
109 The plaintiff then complained of his right ring finger being very sensitive on the tip, and generally extremely painful in cold weather. He had pain in the tip, and that radiated down his finger into his hand. He also experienced pain at night that was exacerbated by cold.
110 Mr Nam noted the plaintiff has loss of dexterity in the hand due to the amputation of the tip of the right ring finger. That resulted in him being a little clumsy with handling normal domestic implements. His grip is weaker than he normally enjoyed prior to the injury, and occasionally objects in a domestic setting can fall out of his hand unexpectedly.
111 On examination, Mr Nam noted the amputation and the scarring. There was a distal interphalangeal joint present, but it was not functioning. The proximal interphalangeal joint would flex to 90 degrees.
112 The plaintiff was unable to make a fully closed fist due to some stiffness in the finger, and the tip of the finger being absent left a gap in his grip. Grip strength measured 30 kilograms of the left hand and 18 kilograms of the right, measured with a dynamometer.
113 The sensation in the tip of the right ring finger was mildly abnormal, with dysaesthesia of the pulp in the flap region, and there was hypersensitivity to touch.
114 Mr Nam thought the main issue with the plaintiff’s disability was that he had reduced strength of his right hand. He had lost significant dexterity to the loss of the tip of the right finger, which contributed significantly to grip strength. He suffered pain, discomfort and loss of sensation in the amputation stump.
115 Mr Nam noted the plaintiff was able to manage his activities of daily living but has discomfort at various times and suffers pain intermittently, particularly with the cold weather and any minor trauma.
116 Mr Nam noted the plaintiff was able to work with his current employer, was suffering a hand disability, and was able to compensate for it. He said he was able to manage using a machine similar to that which he had used prior to the injury, and despite his suffering from pain in his hand, lack of strength and some physical limitations, he was able to complete his tasks.
117 Mr Nam noted the plaintiff was not having any current treatment, and will not require any further treatment, and the injury to the finger has reached a point of maximal medical improvement. He thought the plaintiff had been left with a hand impairment as a result of the amputation.
Overview
118 There is no dispute the plaintiff suffered a compensable injury in the incident. His claim for weekly payments and an impairment benefit were accepted.
119 There is no controversy medically.[35] It is not disputed that the plaintiff suffered a fractured head of the second intermediate phalanx of the finger which was openly reduced and held by a transverse screw.
[35]T1
120 Counsel for the defendant confirmed it was a “range case” and that there were three issues: the nature and extent of the symptoms the plaintiff complains of, the restrictions, and the consequences of the restrictions.[36]
[36]T34
Credit
121 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[37]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[37](2010) 31 VR 1 at paragraphs [11] and [12]
122 Counsel for the defendant made no specific submissions in relation to the plaintiff’s credit but relied on the film in rebuttal of the plaintiff’s evidence as to the sensitivity of the finger.[38] It was submitted the film showed the actions of a man who is not aware, quite plainly, of any disability, restrictions or pain in his hand or finger.[39]
[38]T25
[39]T38
123 Counsel for the plaintiff submitted the plaintiff’s credit had not been impugned in any way by cross-examination. There were no inconsistencies in what was shown in the film and with what the plaintiff said in Court. Further, there was no sign whatsoever in the film of the plaintiff’s finger coming into contact with anything, such that might undermine what he says about avoiding contact. He is walking around with his hands in his jeans’ pocket.[40]
[40]T40
124 In my view, the plaintiff was a truthful witness. He did not exaggerate his problems, a view shared by Mr Anstee.[41] Dr Barton is alone in his view that the way the plaintiff tried to avoid using his finger in gripping and handling things seemed contrived. In any event, Dr Barton thought the plaintiff’s lack of a job may have been playing a part in the plaintiff’s presentation at that time. The plaintiff in fact started work at Yann in May 2017 and continues in that role.
[41]T47
125 There was nothing shown in the surveillance film that changed my view in this regard. The plaintiff has never said that he cannot and does not use his right hand,[42] and I accept his explanation as to the manner in which he carried the milk container at the supermarket.
[42]T23
Pain
126 The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about his pain both in court and to doctors.[43]
[43]Haden Engineering Pty Ltd v McKinnon (supra) per Maxwell P
127 The plaintiff’s main complaint relates to the sensitivity in the tip of the finger, in the area of the skin graft. If he knocks that part of the finger, he suffers a sharp stabbing pain. In those circumstances, I accept that the plaintiff avoids any contact with the right ring finger, as Mr Stapleton reported.[44] He carries things using his index finger and thumb, not his ring finger.
[44]T39
128 Further, by the end of a working day the plaintiff has pulsing pain in the finger and his hand is tired and sore. He described constant aching to Mr Stapleton on examination earlier this year. He also has pain in the finger at night.
129 Whilst the plaintiff does not complain of ongoing continuous daily pain,[45] I accept that he has a permanent right hand disability, as accepted by all medical examiners, albeit to a differing degree. He has to be careful in all activities – domestic and at work – not to knock the tip of the finger on his right dominant hand to avoid suffering sharp pain.
[45]T35
130 In addition to this sensitivity and pain, the plaintiff has lost power in his right hand and has to adjust his grip accordingly. He has complained to the various medical examiners in similar terms.
131 Mr Nam thought the plaintiff had lost dexterity.[46] Mr Anstee, who accepted the plaintiff’s genuineness,[47] thought any right-handed task would have been made more difficult by virtue of the injury.[48] Mr Stapleton and the plaintiff’s general practitioner were of a similar view.[49]
[46]T47
[47]T47
[48]T48
[49]T46
Treatment
132 The plaintiff’s treatment to date has, after the initial surgery, involved hand therapy and then prescription medication until two years ago, and, of more recent times, over-the-counter Panadol.
133 Counsel for the defendant submitted that the plaintiff’s level of pain and lack of treatment puts the case right at the bottom of the end of range of similar cases.[50]
[50]T36
134 However, whilst there has been no treatment since the plaintiff last saw his general practitioner in mid-2017, no treating doctor has suggested to the plaintiff that there is any further treatment that should be undertaken by him.[51] Dr Slesenger however thought the plaintiff would benefit from pain management.
[51]T35
Activities
135 Counsel for the defendant submitted any restrictions in the plaintiff’s day-to-day activities “almost appear to be nil”. Whilst the plaintiff deposed to trouble with fine motor skills, he was able to work full time in a job which required those skills, such as using an Allen key or screwdrivers.[52]
[52]T36
136 Further, the plaintiff has required no time off from his current job and he said his condition has in fact improved, with the requirement for less treatment. He is able to do a range of activities of daily living and has a level of movement as he demonstrated by carrying the milk container in the film.[53]
[53]T37
137 It was submitted the plaintiff was able to go shopping in a free and unrestricted manner and was able to get money out of his wallet with his right hand. In all the circumstances, it was submitted this case fits in the bottom end of the range of similar cases.[54]
[54]T36
138 I do not accept this submission. In my view, the injury to the plaintiff’s right dominant hand interferes with almost every activity involving the use thereof on a daily basis. In particular, he lacks dexterity and has problems with fine hand movements and heavy activities involving his right hand. Just knocking the tip of the finger causes a sharp, stabbing pain.
139 The plaintiff is limited in the amount of gardening he can now do, previously having enjoyed tending a vegetable garden. He now requires the assistance of family members whereas prior to the incident, gardening was the plaintiff’s domain.
140 The plaintiff, a man with limited hobbies, is unable to play social cricket or play freely with his children because of his finger injury, and that is a disappointment to him. Cricket was a hobby he enjoyed before his injury.[55]
[55]T46
141 The plaintiff’s right finger pain occasionally wakes him at night, more frequently in the colder weather.
142 I find it hard to accept however that the plaintiff has any significant problems writing because of the finger injury.[56]
[56]T38
Work
143 Counsel for the defendant submitted this was a case that clearly involved no loss of vocation, earning capacity or reduction in capacity to work.[57] Further, the plaintiff has not required any time off work in his current job because of his injury.
[57]T34
144 In response, counsel for the plaintiff submitted the plaintiff’s evidence, despite extensive cross-examination, had not wavered from what he deposed to. He could do the job of a machine operator but there were parts of it he could not do, particularly those requiring fine motor movements or manual dexterity.[58] He described problems with gripping and with working with various tools.[59]
[58]T45
[59]T44
145 Reliance was placed on a very recent report from Mr Nam, who examined the plaintiff on the defendant’s behalf, and the restrictions he thought were appropriate. He considered the main issue with the plaintiff’s disability was that he had reduced strength of his right hand. He had lost significant dexterity to the loss of the tip of the right finger, which contributed significantly to grip strength. His view was supported in the main by Dr Yong and Dr Slesenger, who the defendant also engaged.[60]
[60]T45
146 Further, Dr Yong and Dr Slesenger, both occupational physicians, consider the plaintiff is working arguably in excess of suitable medical restrictions those doctors would impose. In particular, Dr Yong thought a 1-kilogram lifting limit was appropriate.[61] Dr Slesenger considered there should be a 3-kilogram limit.
[61]T46
147 I accept that as a result of his finger injury, the plaintiff, a manual worker, has been unable to return to heavy unrestricted work since the incident. He went back to lighter duties with the defendant after the incident, and performs similar lighter duties with his current employer. He can still perform a range of activities using hand tools, but has to adjust his grip to do them. Further, the plaintiff complains that after a full day at work, he arrives home and his hand is very tired. Despite his pain and restrictions, the plaintiff continues to work to support his family.[62]
[62]T45
Subparagraph (b) application
148 Counsel for the defendant made a brief submission in relation to sub-paragraph (b) that the disfigurement is not so bad, it is a relatively small amputation of the right ring finger which is not obvious. It was submitted the plaintiff did not try and hide his hand in the film.[63]
[63]T40
149 Counsel for the plaintiff submitted the sub-paragraph (b) application was the stronger of the two applications. The plaintiff had been left with a clear difference in the length of the finger and he had been left with scarring. There was a lack of nail regrowth. The hand was a prominent part of the body, even though not as prominent as the face.[64]
[64]T41
150 Reliance was placed on a decision of Judge Saccardo in a matter of McLean v Grandband Pty Ltd,[65] that embarrassment could be considered under a sub-paragraph (b) application.[66]
[65][2009] VCC 868
[66]T42
151 Further, it was submitted the sensitivity of the scar could also be dealt with under sub-paragraph (b) pursuant to Judge Saccardo’s comments in Hollis v Transport Accident Commission.[67]
[67][2011] VCC 502; T44
152 Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s right hand impairment are “serious”, and grant leave to bring proceedings pursuant to sub‑paragraph (a).
153 Having made this finding, I am not required to determine his application for permanent disfigurement under sub-paragraph (b).
154 Accordingly, I grant leave to bring proceedings for damages for pain and suffering.
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