Hughes v Central Access Ltd
[2010] VCC 1027
•9 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-00059
| WILLIAM JOEL HUGHES | Plaintiff |
| v | |
| CENTRAL ACCESS LIMITED | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 27 July 2010 |
| DATE OF JUDGMENT: | 9 August 2010 |
| CASE MAY BE CITED AS: | Hughes v Central Access Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1027 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the right middle and ring finger – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with | Nevin Lenne & Gross |
| Mr G Pierorazio | ||
| For the Defendant | Mr W R Middleton SC with | Wisewould Mahony |
| Ms J Forbes | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 8 October 2007 (“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) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the right hand.
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 subsection (38)(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 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.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica in reaching my conclusions.
11 The plaintiff relied upon three affidavits 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
12 The plaintiff is aged fifty five, having been born on 1 November 1954.
13 In examination in chief, the plaintiff said he is now employed as a cleaner. His affidavits were read to him by a friend the day before the hearing commenced and he confirmed the contents were true and correct.
14 The plaintiff is right-handed in relation to writing and his signature is now “squiggly” because of the injury to his fingers. He can fill out forms such as those required for Centrelink. The plaintiff is left-handed in terms of throwing and doing other things, and he relies more on his right hand than his left hand.
15 The plaintiff has only ever engaged in manual work. Prior to commencing work with the defendant, he worked in a chicken factory slaughtering chickens. He worked as a labourer for Coonara Heaters in Ferntree Gully and has done vineyard and labouring work.
16 The plaintiff started work with the defendant, a manufacturer of timber supports, as a factory hand at its Benalla premises about six years ago.
17 The plaintiff’s job involved cutting timber to size after measuring it. He then put slats and gluts through a saw that had six blades. It was a two handed job. The timber was then trimmed to size and then grooved. That involved nailing four pieces of timber together and then putting it through another machine, having nailed it first using a nail gun which the plaintiff used in his right hand.
18 Whilst removing a twisted piece of timber from a bench saw on the said date, the plaintiff suffered injury, cutting his middle and right ring fingers (“the incident”).
19 Immediately after the incident, the plaintiff was taken to Wangaratta Hospital (”the Hospital”) where he was treated seven hours later by the orthopaedic team. The tip of the plaintiff’s middle finger, which had been amputated by the saw, was operated on, as was his injured ring finger (“the first operation”).
20 In December 2007, the plaintiff returned to light duties, which he undertook for about four to five months before he was able to return to his normal work.
21 After his discharge from the Hospital, the plaintiff had numerous outpatient attendances.
22 During 2008, the plaintiff had substantial pain and sensitivity in the stump of his right middle finger. It grew a little nail the size of a match head which was annoying as it would catch on things. His middle finger also became infected, which resulted in a lump which increased the sensitivity of his finger.
23 The plaintiff was treated for the infection by Dr Slot. He also underwent further surgery to his middle finger, with the nail and the lump being removed and a nerve treated on 30 September 2008 by Mr McCarten, plastic surgeon, to whom the plaintiff was referred by Mr Seager, orthopaedic surgeon (“the second operation”).
24 The second operation was the last treatment the plaintiff has undergone for his injured right fingers. He has not been prescribed painkilling medication since the first operation.
25 In cross-examination, the plaintiff agreed that when he deposed to excruciating pain he was talking mostly about the time leading up to the second operation.
26 The plaintiff agreed that after the second operation, his right middle finger was “fine now; good; better than it was and it did get improved”. However, there has been no change in the level of pain in his finger since the second operation, “it’s just pain all the time; pain and tingling”.
27 The plaintiff had a few weeks off work after the second operation and he also had some time off work early in 2008 when he suffered a stroke. He is still on medication for that condition.
28 The plaintiff did not depose to experiencing difficulties with his right hand on his return to work with the defendant after the incident. However, in re- examination he explained he would have problems if his co worker dropped a piece of timber or did not push it smoothly through to the machine. A few times in such circumstances, the timber came down on the plaintiff’s right hand, causing him to yell out and swear in pain. The plaintiff levered the timber with his thumb on the top and his forefinger underneath to cope with his right finger problem.
29 In cross-examination, the plaintiff agreed the timber was pretty heavy and long and you needed two people to manoeuvre it. The plaintiff agreed he went back to this work a few weeks after his finger injury, and by Christmas 2007, he was back working as a timber worker.
30 The plaintiff never wore the leather protective finger glove suggested by his doctor as the defendant refused to provide one.
31 The plaintiff was made redundant on 27 July 2009. The defendant had barely enough work to keep one person on and there was hardly any work at the defendant’s premises at that time.
32 Until he commenced a new job a couple of weeks ago, the plaintiff was largely dependent on Centrelink benefits for income. He has been looking for work through Worktrain in Wangaratta, but his attempts to obtain employment had not been very fruitful.
33 In cross-examination, the plaintiff explained he started his new job last Thursday fortnight and that he had started work when he swore his most recent affidavit.
34 The new job involves casual cleaning work for forty hours a week, for D & A Hendersons, a firm which produces timber for making floorboards. In this job, the plaintiff has to shovel sawdust. It is a two handed movement, which he carries out with his right hand lower down the bottom of the shovel guiding it, and the left hand holding the shovel at the top.
35 In re-examination, the plaintiff explained that when he hangs onto the shovel, he is jarring his fingers all the time - “but it is a job”. The shovelling gives him a sensation of pain up into his fingers. The plaintiff has taken painkillers every day when he has returned home after finishing work in his new job.
36 The plaintiff deposed in October 2009, that he continues to suffer pain and tingling in his right middle finger “every now and then”. He continues to find it hard to pick up objects or do anything fiddly with his right hand.
37 When the plaintiff knocks his injured fingers the pain is severe, particularly when his fingers are cold. The plaintiff, on average, knocks his fingers every day at least and it is inevitable they are banged on things such as door handles or on the side of a cup.
38 When cross-examined about his comment “every now and then” that he had pain, the plaintiff explained that was accurate but then said he had pain and tingling in his fingers that was there all the time. He explained that he might have made a mistake in his affidavit with this comment.
39 The plaintiff said he was not a whinger and he does not complain lightly about things.
40 The plaintiff’s right fingers are painful and tingly. By “tingly” he meant just like pins and needles in his two fingers, having earlier had pins and needles in the other two fingers. He described the worst pain in his middle finger as eight out of ten.
41 The plaintiff agreed the right ring finger had recovered its normal function but there was a little bit of loss of length. The plaintiff cannot make a fist and if he tried to his hand gets more painful. He has lost strength in his right hand.
42 In re-examination, the plaintiff said that he continues to suffer pain and discomfort to his right fingers. He has a very reduced range of movement and suffers pins and needles in the tips of his injured fingers. If he bumps his injured fingers “it absolutely kills”.
43 Although he did depose to taking any medication, since the incident the plaintiff has taken over-the-counter Panadeine Forte if he knocks his right fingers or if they are particularly sore. He does not take it on a daily basis and probably takes a tablet once or twice a week. He has taken tablets more frequently since his recent return to work.
44 The plaintiff has not been back to see Mr McCarten since he took out the stitches following the second operation. The plaintiff has told Dr Slot that his fingers still ache and are painful. The plaintiff could not recall when he last went to a doctor specifically for his right finger but agreed it would have been a long time ago. The plaintiff no longer undergoes any treatment because there is nothing he can do.
45 During the hearing, the plaintiff showed his right hand to the Court. The plaintiff’s right middle finger had been amputated at the joint. The finger was discoloured and swollen, which the plaintiff said was always the case. He had difficulty making a pincer movement. Touching his right thumb and first finger was very difficult and this movement put a strain across the top of his hand and across the knuckles.
46 The plaintiff had another injury at work on 5 March 2009. At this time he was working on some slats that were too narrow. A piece of wood got caught in the saw and he picked the timber out and the saw span clipped the “pointy finger” on his left hand.
47 In cross-examination, the plaintiff explained that a little piece came off the tip of his left index finger and the full nail remained. He was not sure whether he had fractured the finger.
48 After that injury, the plaintiff attended the Hospital. The plaintiff also saw Dr Slot pretty regularly and he was put off work for a few weeks.
49 In cross-examination, the plaintiff agreed, that at least in early 2009, this left finger injury would have affected his ability to use his left hand and do things. He agreed it was hard to hold a paintbrush in his left hand.
50 The plaintiff could not remember when he last saw a doctor about his left finger. He said he could not give any reason why he had not told medico- legal examiners about his left hand injury.
51 In re-examination, the plaintiff explained that he had injured just the tip of his left index finger. “It is not bad” and he does not have any problems with it at all.
52 Before the incident, the plaintiff used to do a lot of house maintenance and painting. However, it is now very much more difficult to do painting around the house, dig up nuts and bolts and do similar fiddly sort of work.
53 In early 2009, the plaintiff managed to paint the toilet but he needed assistance finishing the job.
54 The plaintiff deposed that prior to the incident, he was putting up a patio and had got timber for it. The plaintiff cannot do crowbar work, such as digging holes for stumps for the patio.
55 In cross-examination, the plaintiff stated that he had not yet started the patio because he has not got the strength in his hands or fingers to do anything.
56 The plaintiff explained that he could do his work with the defendant but was unable to put up the patio, because at work it was a two man job and the long timber was dragged, not carried, along a table to the machine.
57 In re-examination, the plaintiff explained he does not have the material yet for the patio. He would find it hard to use a hammer, a task he performs left handed. The plaintiff could use a shovel but it would hurt. He could use a crowbar depending on the ground, but using it, too, would hurt.
58 The plaintiff then agreed that he had not started the patio because of his right hand problems and also because he had no material because he could not afford it.
59 Manipulation of small objects is a particular problem for the plaintiff. Putting his hands in his pockets and retrieving things such as keys or coins is very difficult. He continually drops cups and other similar items.
60 Not long ago the plaintiff had problems using a screwdriver to try and fix the latch on the door at home. He could not effectively use the screwdriver using his right hand and holding up the bracket with his left hand.
61 In re-examination, the plaintiff confirmed his problems doing this task and his frustration in relation thereto, with him ending up kicking the door and damaging it.
62 The plaintiff deposed, in August 2009, that he could not chop wood “at the moment” and he had to rely on his son. In cross-examination, the plaintiff agreed that he had problems chopping wood at that time because of his injuries to fingers on both hands.
63 The plaintiff explained his problem chopping wood with the ricochet effect on the handle going into his hand, and stated that these problems continued to the present time. Chopping wood still causes the plaintiff a lot of pain and he suffers later on. It is also difficult for the plaintiff to start the chainsaw and lawnmower.
64 The plaintiff is unable to do fine manipulative work, such as doing up nuts, screws and bolts. He cannot put a bread clip back on a loaf of bread. He finds it difficult to hang onto a knife when eating.
65 In cross-examination, the plaintiff agreed he is “inconvenienced” by his inability to do things such as putting the clip on bread, but did not go so far as to say it had dramatically changed his life. He was frustrated by his inability to do things.
66 The plaintiff agreed he was able to do most things within certain limits. He confirmed he was not able to turn the tap off with his right hand and needed to use both hands, but the tap still dripped. Even if he had the right tools, he would not be able to fix the tap washers given the condition of his right hand.
67 Before the incident, the plaintiff always maintained his own cars and his father’s car. If the brakes needed doing he would take them out and replace them. The plaintiff used to be able to take out motors, gearboxes and the differential and maintain and do work on cars but he now has to pay for someone else to do these tasks.
68 The plaintiff no longer does handyman maintenance on his car and has not done so since the incident because of his right hand.
69 The plaintiff used to do a lot of mechanical work over the years and had done all his maintenance work but now he is unable to do so and his life is very much changed. He spends a lot of time in his office on the computer playing games and watching DVDs.
70 The plaintiff’s garden has deteriorated, because he finds it difficult to weed using a mattock and other hand tools. He has trouble picking up his grandchildren, who are both little.
71 Shaking hands is painful. Relatively recently, when the plaintiff’s granddaughter grabbed his finger and pressed her thumb against the middle stumpy finger, the plaintiff went to the ground in pain.
72 Since the incident, the plaintiff has had difficulty winding an eggbeater – the reel he uses when he goes fishing. He reels the line with his right hand and holds the rod with his left. Before the incident the plaintiff used to enjoy fishing in the rivers near and around Benalla and went out regularly to the ocean with his son. He fished Patterson Lakes and around Mount Martha, where he used to live. However, he has done very little fishing since the injury.
73 In cross-examination, the plaintiff said that he had not been out fishing for a couple of months because of the cold weather but he still goes with his brother from time to time since the incident.
74 The cold weather makes the injured right fingers turn blue. The plaintiff cannot move them in the morning and that is one of the reasons why he does not go fishing. Also, if he knocks his injured right fingers with the reel, which he does quite often, he suffers excruciating pain and jarring.
75 In cross-examination, the plaintiff stated that he has played competitive darts for some time and that recreation is unaffected by his injury as he plays left- handed. He plays in the State Darts Championships every year, finishing third in the last competition. His next competition is in August. He plays on Monday and Thursday nights. It is a pretty important leisure activity for him.
76 The plaintiff thought he had mentioned darts in his affidavits as he loved his darts and still does.
The Plaintiff’s Medical Evidence
77 Following the incident, the plaintiff attended the Hospital. Records from the Hospital indicate that the plaintiff sustained a partial amputation of the right middle and ring fingers. The right ring finger was macerated with a partial avulsion of the nail, though neurovascularly was intact. The right middle finger had a deficient dorsoradial aspect over the distal phalanx, with amputation to the radial neurovascular bundle with macerated edges.
78 The plaintiff was treated in Emergency at the Hospital and admitted under the Orthopaedic Unit for surgical debridement. The surgery was done under ring block. The right middle finger was debrided and amputated through the proximal one third of the distal phalanx. The right ring finger was debrided and the nail was repaired and washed out.
79 The plaintiff was hospitalised for two days with his right hand elevated, and discharged with Panamax prescribed.
80 Dr Slot, the plaintiff’s general practitioner, provided a report dated 14 July 2008 confirming the incident and injury. He noted that the plaintiff’s injury healed up over the next six weeks after discharge from hospital and the plaintiff then returned to work.
81 Dr Slot noted that the plaintiff suffered an infection of the tip of his middle finger stump after a cyst was drained. This required a local incision, draining and oral antibiotics.
82 As of mid July 2008, the stump remained painful and Dr Slot noted that the plaintiff would be reviewed by his orthopaedic surgeon with regard to a possible neuroma.
83 At that stage, Dr Slot thought it was possible the plaintiff may need further surgery for this problem and another six to eight weeks of alternative duties to recuperate. Dr Slot commented that the plaintiff’s fourth ring finger had healed up well with normal function and some minor scarring remaining.
84 Mr McCarten provided a report dated 11 September 2008.
85 Mr McCarten noted the plaintiff presented to his rooms on 21 August 2008. The plaintiff was then bothered by the tip of his right middle finger where he had a strongly positive Tinel’s sign over his radial digital nerve and he also had a small nail bed remnant.
86 Mr McCarten advised he planned to operate on the plaintiff for excision of neuroma of the right digital nerve of the right middle finger with excision of the nail bed remnant of the right middle finger. It was proposed that operation would be carried out on 30 September 2008.
Medico-Legal Examinations
87 Mr Peter Scott, consultant surgeon, examined the plaintiff on behalf of QBE Insurance on 4 June 2008.
88 At that stage, the plaintiff complained that his right middle finger stump was hypersensitive to touch and associated with loss of normal length of the digit. The plaintiff, as a consequence, complained of some weakness in the power of the fist because of his inability to completely roll up the middle finger, because of loss of length of the digit and also because of some loss of range of movement of the distal interphalangeal joint of the digit. There was right ring finger tenderness over the terminal pulp and Mr Scott noted the plaintiff appeared to have regained normal nail growth on that digit.
89 The plaintiff also complained of some weakness of the power of the fist.
90 Mr Scott noted the plaintiff was left handed.
91 On examination of the right hand, the right middle finger had been amputated through the proximal portion of the distal phalanx and there was an associated loss of about fifty per cent of flexion of the distal interphalangeal joint of the digit.
92 The plaintiff also complained of marked hypersensitivity to light touch over the stump of the finger, suggestive of neuroma formation. There was a small cystic structure in the stump about 2-millimetres in diameter which appeared to be beneath the skin. Mr Scott noted the stump was well healed and stable.
93 Examination of the right finger showed there had been no amputation and therefore no loss of length of the digit and there was normal nail growth. The plaintiff, however, did complain of hypersensitivity over the terminal pulp to a mild degree compared with hypersensitivity being experienced in the ring finger. There was also about a fifty per cent loss of flexion of the distal interphalangeal joint of the right finger. As a result, the plaintiff had a weakened right fist because of his inability to completely roll up the ring and middle finger digits into the palm.
94 At the time of that examination, the plaintiff had returned to fulltime normal work and Mr Scott thought he should be able to continue in that capacity.
95 Mr Scott noted, however, the loss of normal range of movements of the distal interphalangeal joints of the ring and middle fingers and, because of the associated loss of the length of the middle finger, the plaintiff was unable to make a strong fist and therefore would find difficulty in handling heavy tools.
96 Mr Scott did not believe the plaintiff required any further treatment but did note he had features suggestive of a possible neuroma formation in the stump of the amputated ring finger. In Mr Scott’s view, if this was going to continue, then the plaintiff should be referred back to his surgeon for consideration of further treatment and he might require further excision of that stump and shortening of the digital nerve.
97 In conclusion, Mr Scott thought the plaintiff perfectly fit for fulltime work with minimal restrictions, and noted he should wear a glove to his right hand and avoid any forceful impact over his tender middle finger stump where he may well be developing a neuroma.
98 Mr Murray Stapleton, plastic surgeon, has examined the plaintiff twice, initially on 22 June 2009, and more recently on 5 May 2010.
99 Mr Stapleton noted the plaintiff is right handed.
100 On the most recent examination, the plaintiff told Mr Stapleton his right hand gives rise to occasional pain. He gets tingles at the tip of the stump of the middle finger and occasionally to the tip of the ring finger. His right hand is tender if it is knocked.
101 The plaintiff has poor grip with his right hand and opening taps and door handles are often a problem for him. It is awkward to lift a cup of coffee and he drops things from time to time.
102 On examination, Mr Stapleton noted the amputation just beyond the distal interphalangeal joint of the right middle finger. He noted that joint was present and it flexed between ten to thirty degrees. The PIP joint of that finger flexed from zero to ninety degrees. The amputation stump was tender.
103 Mr Stapleton thought that the plaintiff’s right ring finger had recovered.
104 Mr Stapleton concluded the plaintiff is impaired in all activities involving his dominant hand, and they include social, domestic and recreational activities, and this incapacity was permanent.
105 Mr Stapleton considered the plaintiff’s impaired right hand would preclude and restrict him in many activities so far as employment was concerned. He thought heavy work as a labourer should forever be regarded as out of the question for the plaintiff. He thought he was capable of more modified duties which did not impose the risk of further damage to his right hand which Mr Stapleton considered had been significantly impaired.
106 Mr Stapleton thought no further treatment was required.
107 Mr John Anstee, plastic and reconstructive surgeon, examined the plaintiff on behalf of the defendant on 1 December 2009.
108 At that stage, the plaintiff told Mr Anstee that his finger was reasonably comfortable, but he did have pins and needles in the middle and ring fingers of the right hand and he found that relatively slight trauma to the amputation stump gave him quite severe pain which lasted for some seconds.
109 Mr Anstee noted the amputation. He commented that the range of movement of the remaining joints of the middle finger was reduced. Sensation was also reduced over the remaining portion of the right middle finger.
110 In addition, he noted that the plaintiff had a 20 millimetre by 1 millimetre scar over the pulp of the right ring finger and that an x-ray demonstrated a shattered distal phalanx.
111 Mr Anstee found that the plaintiff had a reduced range of movement in the proximal interphalangeal joint and the metacarpophalangeal joint of the right middle finger. The range of movement in the right ring finger was also reduced.
The Defendant’s Medical Evidence
112 Dr Slot examined the plaintiff on 14 July 2008. Dr Slot recorded that the plaintiff had been working normal duties and managing this well. The tip of his right middle finger remained sensitive; however, recent infection was healing nicely. The fourth finger had healed up nicely and the plaintiff was seeing “W S” – Mr Seager, tomorrow. It was noted the reason for the visit was the right finger injury.
Investigations
113 On 3 July 2008, there was an x-ray of the plaintiff’s right hand following the amputation of the tip of his right middle finger. It was noted there was amputation of the mid and distal aspects of the distal phalanx of the middle finger. There was a small gas foci in the subcutaneous tissue towards the radial aspect. A bandage was noted in situ. There was no periostitis or osteolysis otherwise detected to suggest any specific complication.
114 There was an x-ray of the left hand taken on 5 March 2009. It was noted the fingertip was removed in a machinery accident involving a bench saw. The x- ray showed a comminuted fracture of a terminal tuft of the finger, with soft tissue and bony amputation. The joint was not involved.
115 On 30 September 2008, Mr McCarten performed an excision of the nail bed and neuroma of the plaintiff’s right middle finger.
116 Dr Slot examined the plaintiff on 5 March 2009. Dr Slot recorded “crush injury to the tip of left index finger, x-ray revealed # of tuft. Flexion and extension were normal. The wound was cleaned and some debris was removed.
117 The plaintiff was to be reviewed the following day for the change of dressing and again, daily over the weekend. He was given a script for Ibilex and the reason for the visit was a crush injury of the finger. A letter was written and a WorkCover Certificate given.
118 Dr Slot provided a Certificate of Capacity relating to a crush injury to the tip of the left index finger on 5 March 2009, certifying the plaintiff unfit for any duties for five days thereafter. A similar certificate was issued for the following week, and from 17 March to 31 March 2009.
119 The plaintiff was certified fit for alternative duties from 1 April 2009 and expected to be fit for normal duties from 9 April 2009.
Findings
120 It is not disputed that the plaintiff suffered injury to his right middle finger and ring finger in the incident. The middle finger was most badly injured with an amputation at or just distal to the distal interphalangeal joint, requiring surgery on two occasions. The right ring finger was macerated with partial avulsion.
121 The issue for consideration is impairment, not injury. Whilst counsel for the defendant conceded that the plaintiff had legitimate problems resulting from this right finger injury, it was submitted that such problems did not meet the test of seriousness.
122 There was some issue as to whether or not the plaintiff was right hand dominant. Although he uses his left hand for some tasks, such as throwing darts and hammering, I accept his evidence that he relies more on his right hand, particularly as he writes right-handed.
123 Counsel for the defendant argued against the seriousness of the plaintiff’s impairment as the plaintiff was able to resume work within a few months and did his normal duties from December 2007 until June 2009 when he was retrenched.
124 Reliance was placed on the fact the plaintiff had returned to a very heavy job requiring the use of both hands in terms of weight and dexterity. It was submitted that any interruption to the plaintiff’s employment had been from related factors, such as the stroke, and then the left finger injury in March 2009.
125 In Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, Chernov JA remarked that where a plaintiff was capable of returning to alternative employment, then unless there was some other evidence that he experienced significant pain or that he otherwise significantly suffered physically from the injury, then it would ordinarily be difficult to conclude that the pain and suffering consequences of it are “at least very considerable”.
126 Whilst the ability to return to full time work is a relevant consideration in determining this application, each case must be looked at in light of its own facts.
127 Whilst interference with work was not deposed to, I accept the plaintiff experienced difficulty with right-handed tasks on his return to work with the defendant as he described in re-examination.
128 The work was a two-man job and did not require delicate, fine manipulative movements of the plaintiff’s right hand. He adapted his right-handed grip to carry out his timber work but still had problems when his co-worker failed to put the timber smoothly through the machine, causing the plaintiff’s fingers to be knocked or jarred – an experience the plaintiff described as very painful.
129 Further, I accept the plaintiff has ongoing difficulties with manual work, such as he is required to perform in his new job, cleaning using a shovel with both hands. Such problems are confirmed by the fact that since resuming work he has required daily painkillers at the end of a day’s work.
130 As Nettle JA commented in Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, at paragraph 4 that he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
131 I accept the plaintiff is a hardworking man who has got on with things, working with difficulty until retrenched, and continuing to work under some difficulty in his new job.
132 Further, there are restrictions in the type of work the plaintiff could do and he is precluded from engaging in unrestricted manual work.
133 These manual restrictions extend to household and recreational activities requiring the use of the plaintiff’s right hand in heavy tasks, such as chopping wood or digging and also more delicate handyman tasks.
134 Before the incident, the plaintiff enjoyed working on his cars and his father’s car. As a result of his right finger injury, he is no longer able to do the delicate movements involved in maintaining the cars.
135 The plaintiff is similarly restricted in his performance of other home maintenance/ handyman tasks he carried out prior to the incident – such as his problem using a screw driver.
136 Whilst the plaintiff can, and still does, go fishing, his enjoyment is reduced by the difficulty he experiences using a reel with his right hand and the pain suffered if he bangs the reel on his fingers. Further, he goes fishing less in the winter because of the effect of the cold on his middle finger, turning it blue.
137 Although the plaintiff suffered injury to his left finger in March 2009 and had problems with manual tasks at that time because of that injury, it no longer causes him concern. “It is not bad” and he does not have any problem with it at all.
138 Further, the left finger injury itself was not of the magnitude of the injury to the right middle finger.
139 Even the performance of simple day-to-day tasks are difficult because of the right finger injury. I accept that an inability to put the clip on a loaf of bread is not a serious consequence but it is but one example of the problems the plaintiff faces on a daily basis and will do so for the rest of his life because of his painful and shortened right middle finger and, to a lesser extent, his ring finger. Such problems are more than frustrating or inconvenient; they are a constant reminder of the injury, having to be careful on a daily basis even when playing with his grandchildren.
140 I accept that the plaintiff is a man who does not readily complain of pain. Despite the plaintiff having deposed that he experiences pain in his fingers now and then, I accept his viva voce evidence that pain and tingling are constant. I accept that when his right fingers are knocked, the pain is severe, as he described “it absolutely kills” and the pain is eight out of ten.
141 Whilst there was some improvement in his condition after the second operation with the removal of the nail and the neuroma, the plaintiff has continued to experience the pain and tingling he described.
142 There is no further treatment available to the plaintiff. He has taken over-the-counter medication since the incident at times when his right fingers are particularly painful or after he has knocked them. Of more recent times, he has required daily painkillers after each day shovelling at his new job.
143 In addition to pain, movement of the plaintiff’s injured right fingers is restricted because of the right finger injury, as found on medico-legal examination by Mr Scott, Mr Anstee and Mr Stapleton. Further, the plaintiff is no longer able to make a fist and he has lost strength in his right hand. He continually drops cups and other items.
144 An injury of this nature is particularly significant to this plaintiff. He is an uneducated man with a history of only manual work, whose domestic and recreational life also revolved around the ability to use his hands. His enjoyment and participation in these activities has to large extent been taken away from him or significantly restricted – consequences which I consider to be serious.
145 Counsel for the defendant relied on Ashley JA’s comments in Dwyer v Calco Timbers Pty Ltd No 2 (supra), affirmed by the Court of Appeal in the second appeal in Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, in that measuring the pain and suffering consequences, it is important to look at what is retained as well as what is lost.
146 Whilst the plaintiff has retained his most important hobby of darts, an activity he has always performed left-handed, the interference with all right-handed activities is more than considerable.
147 I accept, as Mr Stapleton noted, the plaintiff is impaired in all activities on a permanent basis because of his right finger injury.
148 Whilst both counsel referred me to other cases involving finger impairment, there is no guide or checklist that applies. Each case must be considered on its facts, taking into account all of the evidence.
149 Having done so in this case, I am satisfied that the plaintiff suffered a serious injury to his right hand in the incident.
150 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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