Illarietti v DNR Logistics Pty Ltd
[2012] VCC 58
•8 March 2012
| IN THE COUNTY COURT OF VICTORIA | Unrevised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-06136
| ANTHONY ILLARIETTI | Plaintiff |
| v | |
| DNR LOGISTICS PTY LTD | First Defendant |
| IAN STANSFIELD-SMITH PTY LTD | Second Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30-31 January and 3 February 2012 | |
DATE OF JUDGMENT: | 8 March 2012 | |
CASE MAY BE CITED AS: | Illarietti v DNR Logistics Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 58 | |
REASONS FOR JUDGMENT
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Catchwords: s134AB Accident Compensation Act 1985 – serious injury – pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Jewell S.C. with Mr B. Anderson | Shine Lawyers |
| For the Defendant | Mr P. Trigar | Herbert Geer Lawyers |
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HER HONOUR:
The application
1 The plaintiff seeks leave under section 134AB of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for a crushing injury to his dominant right hand in the course of his employment with the employer, the first defendant (referred to as “the defendant” throughout this judgment), in particular on 16 September 2004. The plaintiff did not pursue his application against the second defendant.
2 The evidence adduced at hearing consisted of the Plaintiff's Court Book[1] (pages 7 to 47 and 50 to 52); the Defendant's Court Book[2] (pages 13 to 16, and 60). The defendant showed at hearing and tendered three DVDs containing surveillance film obtained on 19, 21, 23 and 24 March 2011, on 21, 22 and 30 November 2011 and 1 December 2011, and on 4 and 5 January 2012.[3] A copy of an Initial Assessment Report dated 28 March 2011, supplied by rehabilitation provider, Konekt Australia Pty Ltd,[4] and five pages of notes extracted from the clinical notes of general practitioner, Dr. Koster, covering the period 28 July 2009 to 9 December 2011 were also tendered by the defendant.[5]
[1]Exhibit P1.
[2]Exhibit D1.
[3]Exhibit D2.
[4]Exhibit D3.
[5]Exhibit D4.
3 In this application the plaintiff submitted that he suffered a serious permanent impairment or loss of right hand function and he seeks leave to bring proceedings to recover pain and suffering damages only.
The statutory requirements
4 In summary the plaintiff carries the burden of proof (on the balance of probabilities).
5 Under the Act to establish “serious injury” the plaintiff is required to prove that he has suffered a serious permanent impairment or loss of body function. He must prove a compensable injury arising out of or in the course of his employment with the defendant on or after 20 October 1999. The compensable injury must, in its consequence in relation to pain and suffering, when judged by comparison with other cases in the range of possible impairments or loss of a body function, be fairly described as being more than “significant” or “marked”, and as being at least “very considerable.”
6 Permanent in the context of section 134AB requires that the impairment is likely to last for the foreseeable future.
7 In this application I am required to ignore any psychological or psychiatric consequence of the injury suffered on 16 September 2004 for the purpose of determining whether the plaintiff has met the test in respect to serious permanent impairment of his right hand function.
The areas of dispute
8 In accordance with the Statement of Issues handed to the Court the defendant contended:
· that when judged by comparison with other cases in the range of possible impairments or losses of body function, the plaintiff did not satisfy the “very considerable” test;
· that the injury-related loss of function, the limitation of activities and the consequences were far less than claimed by the plaintiff whose account of these was subjective and not credible. This and the plaintiff's failure to mention later knee injuries, so the defendant argued, impacted particularly on the medico-legal assessments of the plaintiff's right hand injury;
· that impairment due to injuries to the plaintiff's left knee and right knee sustained during the course of his employment with different employers on 15 December 2005 and 18 October 2010 respectively, “severely” contributed to the plaintiff's impairment consequences and any ongoing inability to participate in social, recreational, domestic and employment activities.
9 Supervening knee injuries are matters relevant to the assessment of damages at trial. In this leave application they do not prevent the plaintiff from establishing serious injury in respect to any pain and suffering consequence due to impairment of his right hand.[6]
[6]See Acir v Frosster [2009] VSC 454.
10 The plaintiff impressed me as a straightforward witness who did not seek to embellish or exaggerate his circumstances. Based on all the evidence I concluded that the plaintiff was a hard-working, well motivated individual who had previously led a very physically active life and who had persevered in his endeavours to remain working in full-time manual employment, despite his compromised capacity to work due to injury to his right hand.
The plaintiff’s background
11 The plaintiff is 48 years of age. He is married with three adult children.
12 Apart from three years working with the Australian Armed Services, since finishing school “at” year 11, all of the plaintiff’s work has been in physical occupations, as for instance driving trucks or as a builder's labourer, foundry worker, Bobcat operator, scaffolder, plumber's assistant or boilermaker.
13 The plaintiff commenced employment with the defendant on 19 September 2003 as an owner/driver. He supplied his own 12 tonne, rigid 3-axle fixed tray truck. From March 2004 the plaintiff was required to deliver steel products around the Melbourne/Metropolitan area for the second defendant, a company which stocked and supplied steel.
The circumstances of injury
14 The circumstances in which his right hand was injured were described by the plaintiff in paragraph 8 of his first affidavit in the following words:
“At about 1:30 PM on 16 September 2004, I was loading a bundle of steel on to my vehicle in the warehouse at Ian Stansfield-Smith. This deal was being lowered onto the tray of the truck by a sling on an overhead crane. As the steel was lowered, it was not sitting correctly. I therefore try to push it with my hand to straighten it. I was standing on the rear left side of the tray of the truck at the time. As I attempted to push the bundle, a length of steel rod rolled from the top, jamming my right hand beneath it. My hand was crushed and the pain was excruciating.” (“the incident”)
15 Following the incident the plaintiff was conveyed to the Maroondah Hospital where x-ray investigation revealed a “non displaced comminuted diaphyseal fracture of the proximal phalanx of the index finger” and an “undisclosed fracture” of the proximal phalanx of the middle finger.”[7] The plaintiff's forearm was immobilised in a plaster slab and he was discharged.
[7]Plaintiff's Court Book (“PCB”) 25.
16 The plaintiff was reviewed the following day at the hospital's Plastic Surgery Outpatient Clinic at which time it was decided that the fracture of the right index finger would be treated by closed reduction and fixation with several k-wires. This surgery was performed by plastic and reconstructive specialist, Mr. Leong on 19 September 2004. On 5 November 2004 the plaintiff underwent further surgery to remove the wires. Throughout this period the plaintiff's condition was regularly reviewed and he attended hand therapy as an outpatient.
17 On review on 3 December 2004 the surgeon noted a slight rotation deformity and stiffness of the index finger.
18 X-ray of both the plaintiff's right hand and right index finger in January and February 2005 respectively revealed “good radiological union” and that the “bony fragments of the right index finger” were “firmly united in good position, with the fracture site fairly discernible.”[8]
[8]PCB 26 and 27.
19 In the months following the incident the plaintiff remained off work. However, when he tried to return to work in January 2005, the plaintiff said that holding the steering wheel of the truck was too painful and difficult. As a result the plaintiff ceased working as a truck driver and sold his truck at a loss. In effect, due to his compromised work capacity the plaintiff lost the opportunity to work in his chosen career as a truck driver.
20 The affidavit of his wife, Rebecca Illarietti, supports the plaintiff's description of his employment circumstances following the injury to his right hand and, at the same time, emphasises the financial impact the loss of the plaintiff’s employment had on the family as a whole.[9]
[9]PCB 15 at paragraph 4 to 5.
21 The plaintiff subsequently found work as a welder, then as a scaffolder and at some stage he tried working as a Bobcat operator, work the plaintiff said he found too difficult because he was unable to handle the controls. As was explained in the plaintiff's further affidavit, his activities when performing these jobs increased the level of his pain: “...and the longer the day went on, the more painful (his) hand would become. By the end of the day, (his) pain levels would usually be at their highest and by the end of the week, they would be almost unbearable. (He) had to take painkillers and sleeping tablets just to get some relief. Of an evening, (he) would also regularly use ice packs or heat packs to try to alleviate some pain.”[10]
[10]PCB 13.
22 As it turns out in the 2 to 3 years preceding the hearing[11] the plaintiff secured full-time employment as a scaffolder working with a company operated by his brother. The plaintiff has continued in this employment because his brother accommodates the plaintiff’s injury-related restrictions by allowing the plaintiff flexibility in how the work is performed. Working in teams with a minimum of two people, so the plaintiff said, means that there is always someone else available to help him. According to the plaintiff he has persisted with this work which, despite the assistance received, has “always caused” him pain.[12]
[11]TN 30.
[12]PCB 13.
23 On review in July 2005, Mr. Leong found stiffness of the right hand, complicated by some weakness of grip. The plaintiff was advised to undergo a correctional osteotomy procedure to correct the rotation deformity to the right index finger. However, the surgery, booked for December 2006, did not proceed until much later.[13]
[13]PCB 32.
24 In the interim, as I have already mentioned, in December 2005 the plaintiff injured his left knee. Apparently a tear of the meniscus was repaired by arthroscopic surgery in early 2006 and the plaintiff subsequently returned to full-time work.
25 The plaintiff was examined with respect to his right hand injury by two medico-legal specialists at the request of the defendant's solicitors in October 2007, plastic, reconstructive and hand surgeon, Mr. Penington and orthopaedic surgeon, Mr. Battlay.
26 Having examined the plaintiff on 23 October 2007, Mr. Penington advised that, if successful, the further operative procedure would lead to an improvement in the plaintiff's hand function.
27 Relevantly on examination he found a rotation deformity of the index finger estimated to be at around 15° of pronation, that the index finger overlapped the middle finger when the plaintiff's fingers were fully flexed, reduced sensation in the index finger, a two-point discrimination on the radial side of the index finger of around 7 mm (as compared with a two-point discrimination of just under 6 mm for the middle finger) and a slightly reduced flexion at the metacarpophalangeal joint. Mr. Penington opined that:
· due to reduced strength in his right hand and difficulty grasping, the plaintiff did not then have the capacity to perform his pre-injury employment and his inability to hold on safely using his right hand posed a safety issue in his work as a scaffolder. A correctional osteotomy could, he said, improve strength in the plaintiff's right hand;
· the plaintiff should not lift heavy weights with his right hand or work in cold environments with his hands;
· the plaintiff was “likely to have mildly reduced capacity in the right hand permanently” which would restrict his capacity for work with his right hand, although this situation required reassessment some six months after the correctional osteotomy.[14]
[14]PCB 30-31.
28 Mr. Battlay examined the plaintiff the next day, on 24 October 2007. Mr. Battlay recommended against further surgery because, in his opinion, the risk of surgery and potential down time and possible further stiffening of the joints outweighed any functional benefit that might flow from this surgery. He also formed the view that there was no restriction on the plaintiff's employment capacity, there being, Mr. Battlay said, only a very modest permanent impairment in terms of slight stiffness of the joints.
29 No doubt, Mr. Battlay's conclusions were at least in part informed by his findings on examination which included normal callous formation evidencing (he thought) normal use of the index finger, a “very mild” degree of rotational deformity and variation between grip strength measurements taken on both sides on three separate occasions, between 26 and 34 kg in the right hand and between 46 and 48 kg in the left-hand. In Mr. Battlay's opinion the range of variation on the right side was unacceptable and did not indicate a physically based disability. In other words he treated the variation as either a voluntary or functional response.
30 Even were I to accept that the discrepancy in the grip strength measurement to which Mr. Battlay referred was mediated by non-physical factors, his measurements were obtained before a corrective procedure, both hand specialists, Mr. Penington and the treating surgeon, Mr. Leong, considered an appropriate response to the deformity.[15]
[15]See PCB 31 and 34.
31 On 11 February 2008, Mr. Leong performed corrective surgery, a rotational osteotomy. This procedure involved fixation by dorsal plate and screw.[16]
[16]PCB 34 and 50 to 52.
32 Post-surgery the plaintiff was off work for six weeks and underwent further hand therapy.[17] Unfortunately, notwithstanding what the surgeon described as a “significant improvement” following the second operation, there remained some deformity of the right index finger.[18] This prompted the surgeon to recommend and to seek funding for a further procedure to remove the old plates from the proximal phalanx of the index finger and to perform “a small closing wedge osteotomy with a slight rotation to re position the index finger better.”[19]
[17]PCB 28-29.
[18]PCB 51.
[19]PCB 33.
33 According to the plaintiff he declined further surgery because he had been told by the surgeon that he risked losing his finger if, as the plaintiff put it, the bones did not “take.”[20]
[20]PCB 10.
34 When last reviewed, on 19 November 2008, the treating surgeon relevantly noted, among other things:
· a fairly good range of movement in the plaintiff's index finger;
· movement in the MCP and PIP joints to 75° and to 55° in the DIP joint;
· grip strength of 40 kg on the right side and 53 kg on the left side (a clear improvement on the measurements obtained by Mr. Battlay more than a year earlier);
· lateral pinch on the right index finger was 4 kg and on the left it was 12 kg;
· the tip pinch on the right was 4 kg and on the left it was 7.5 kg; and
· the plaintiff was unable to make a full fist because the index finger was slightly ulnar deviated.[21]
[21]PCB 34.
35 As far as I can tell, functional deficits in grip strength and in the plaintiff's ability to pinch or to make a full fist with his dominant right hand, have persisted and continue to impact in all areas of the plaintiff's life. The defendant accepted that there was, in the words of its counsel: “some rotational deformity and some movement restrictions,” but disputed the pain levels and dysaethesia of which the plaintiff continued to complain.[22]
[22]TN 73.
36 Allowing for the demonstration of this at hearing by the plaintiff, his right index finger was, as the treating surgeon had observed, “slightly ulnar deviated.” He clearly had trouble forming a full fist. This circumstance of itself is, as submitted by senior counsel, a likely cause of some “clumsiness associated with fine movements” and of other difficulties in performing manual tasks.[23]
[23]TN 96.
37 The question that needs to be answered is to what extent (if any) injury related impairment of the plaintiff's dominant right hand produces pain at the level and frequency alleged and contributes to the consequences to which he referred both in his oral and affidavit evidence?
38 As I have already mentioned in October/November 2010 the plaintiff injured his right knee. At the date of hearing, having undergone surgery twice, the plaintiff was off work due to this unrelated injury. The report from the treating orthopaedic surgeon, Mr. Balakumar to the plaintiff's general practitioner in August 2011 indicated, amongst other things, that the condition of the plaintiff's right knee was then improving and that the plaintiff was “extremely motivated” to return to work.[24]
[24]DCB 60.
The film
39 Segments of surveillance film were shown. The first DVD ran for approximately 24.48 minutes. It depicted activities over a number of days. Whilst the DVD tendered also referred to 24 March 2011, from my observation of this, the film shown was only taken on 19, 21 and 23 March 2011.
40 During this period of surveillance the plaintiff was captured using both hands to operate a remote control whilst flying a model aeroplane, using his right hand to open a car door and using either a pair of pliers or a screwdriver to adjust a bolt located in the boot of his son's car.
41 At one stage during cross-examination the plaintiff appeared to accept that the film depicted him performing “normal” activities with his right hand, which required some force and some grip. However, if interpreted in their proper context, I was satisfied that through his responses to this line of questioning the plaintiff intended to confirm (as he repeatedly did throughout the hearing), that he used his right hand, but that he is no longer able to use it normally.[25] In other words, as a response to ongoing pain and restriction in his right hand, the plaintiff had adapted the way he used his dominant right hand in the performance of various functions or, where he could, the plaintiff had swapped to using his left hand or, he used both hands interchangeably.
[25]TN 44.
42 The second DVD was taken on 21, 22 and 30 November 2011 and on 1 December 2011, a period of approximately 21 minutes. In this film the plaintiff was depicted in activities such as securing the Velcro straps on his sandals with both hands, using his right hand to get into and out of his car (“I still have difficulty but it's the way I hold the door handle and key”[26]), transferring bags of shopping into his right hand, holding his beer glass in his right hand and making adjustments with his left hand whilst holding a model aeroplane in his right hand.
[26]TN 46.
43 At various stages of the film the plaintiff appeared to use his right hand to either launch the model aeroplane or to “fiddle with” some part of the model.[27]
[27]TN 47.
44 The third and final DVD, some 25 minutes, was obtained on 4 and 5 January 2012. The plaintiff agreed that, amongst other things, this film showed him using both hands to pick up a security screen door purchased from Mitre 10, which the plaintiff subsequently spray-painted using a spray paint can.
45 In response to the suggestion that he used the spray paint can in his right hand plaintiff clearly indicated that he used both hands and that, whilst it was no more difficult to depress than the nozzle on a fly spray can, the plaintiff also indicated that he used his third or fourth finger of his right hand to perform this activity.[28] Other than to note that preparatory to spray painting the screen door the plaintiff appeared to shake the can in his right hand, I could not tell from viewing the film whether or not the plaintiff used one or the other hand to spray paint, much less discern whether he had, as he said, used his third or fourth finger of his right hand to operate the nozzle.
[28]TN 49.
46 The plaintiff nevertheless acknowledged that subsequently he removed tape from the screen door with his right hand and that, using his right hand, he had drilled a hole to put a screw in the door handle.
47 A further segment of film taken on 5 January 2011 depicted the plaintiff untying restraining straps, as he said mainly with his left hand, before assisting another man to unload a dishwasher from a trailer on to a trolley.[29]
[29]TN 50.
48 The final segment of film depicted the plaintiff playing the pokies for which activity he said he predominantly used his left hand.
49 My impression of the limited segments of film shown, none of which were shown to the specialists, was that the film as a whole did not contradict the plaintiff's assertion that he continued to use his dominant right hand but that there were injury-related restrictions on the use of this hand.
The consequences of the injury to the plaintiff’s right hand
50 My summary of the pain and suffering consequences are drawn from the plaintiff's affidavits, sworn on 6 August 2010 and 19 December 2011 and his oral evidence, from the affidavits of his wife, Rebecca Illarietti and his son, Jessie Illarietti, both sworn on 27 June 2011 and from the reports made to particularly the medico-legal specialists, retained by the plaintiff, plastic and hand surgeon, Mr. Stapleton (who examined the plaintiff on 29 November 2010 and on 19 December 2011) and orthopaedic surgeon, Mr. Kossmann (who examined the plaintiff on 26 October 2011). As it turns out, the defendant relied on various findings made by Mr. Stapleton but challenged the specialist's opinion where it appeared to be based on reportage by the plaintiff rather than any independent finding.
51 By and large the unchallenged affidavit evidence of the plaintiff's wife and son served to corroborate the plaintiff's evidence specifying the consequences of ongoing impairment of his right hand and, in doing so, they each highlighted the significant loss of independence experienced by a hitherto very physically active 48 year old.
52 In assessing the plaintiff's pain and suffering consequence as required, I have considered globally all of the pain and suffering experienced by the plaintiff to which he claimed the compensable injury to his right hand materially contributed, including his actual experience of pain and, to the extent that these are apparent from the evidence, any disabling and debilitating effects of the impairment.[30]
[30]See Sutton v Laminex Group Pty Ltd [2011] VSCA 52 at paragraph 114.
53 As to pain, its level and frequency, the plaintiff said that he experienced:
· constant aching and pain in his index and middle fingers and he suffered from cramping. According to the plaintiff, aching and stiffness in his fingers was exacerbated by exposure to cold and by activities involving vibration (in cross-examination the plaintiff denied telling Mr. Kossmann that he could not do anything which involve vibration of his right hand -- “I don't think I said anything. I said I have trouble doing a lot of things”[31]). The activities he said particularly caused pain included driving, using a chainsaw, whipper snipper or electrical power tools such as a drill (he tried using a drill with his left hand[32] and mostly arranged for other scaffolders to use the drill at work[33]), motorcycle riding (an activity in which the plaintiff said he had previously engaged “every second weekend or so”[34]), lawn mowing and the physical work involved in scaffolding, such as using a hammer (and as the plaintiff said in re-examination he did not use his dominant right hand to perform all of the activities associated with scaffolding, rather his brother instructed him “to get the boys to do the majority of the carrying and lifting”[35]). In cross-examination the plaintiff conceded that he did some or attempted activities such as using a chain saw or whipper snipper (until the pain got too much for him and his wife or son took over[36]), gardening, chopping wood or mowing the lawn;
[31]TN 26.
[32]TN 25.
[33]TN 32.
[34]TN 20.
[35]TN 58.
[36]TN 23.
· numbness and altered sensation. Relevantly, in 2007 on examination Mr. Penington found reduced sensation in the right index finger which he thought might improve over the next one to 2 years. As we now know the plaintiff underwent further surgery. In 2010 Mr. Stapleton reported finding no sensory loss at the fingertips of the plaintiff's right hand. However, in October 2011 Mr. Kossmann’s examination revealed dysaethesia in both fingers, specifically on the right side of the index finger.[37] Consistent with this finding, in December 2011 Mr. Stapleton apparently accepted the plaintiff's indication to the effect that he suffered from partial sensory loss over the radial side of the right index finger.[38] In these circumstances I was satisfied that there is reliable evidence of ongoing altered sensation;
· poor sleep due to pain. When he swore his first affidavit, some months prior to the injury to his right knee, the plaintiff deposed that he required non-prescription medication such as Panadol or other analgesics for pain “quite often.”[39] In November 2010 Mr. Stapleton was apparently told that the plaintiff took analgesics for right hand pain and required sleeping tablets.[40] However, in October 2011 Mr. Kossmann, who clearly knew that the plaintiff was still undergoing treatment for his right knee injury, was told that the plaintiff used Stilnox, Mogadon and Valium on a regular basis. As the plaintiff explained during cross-examination, after his decision not to pursue further surgery, he continued taking non-prescription medication, Panadol and Mersyndol, but stopped seeing his doctors for treatment of his right hand symptoms when they said there was nothing else they could do for him.[41] In re-examination the plaintiff told the Court that prior to his right knee injury he took between one and three Mersyndol tablets almost every night, medication which also aided sleep.[42] The extracts from clinical notes kept between 28 July 2009 and 9 December 2011[43] by the treating general practitioner, Dr. Koster essentially confirm that the plaintiff did not, as he said, seek ongoing treatment of any right hand symptoms. During this period the plaintiff was prescribed sleeping tablets, on one occasion in association with back pain, in September 2010 for treatment of insomnia and, between November 2010 and December 2011, the plaintiff was prescribed sleeping tablets (Stilnox and Mogadon) and strong painkilling medication, such as Panadeine Forte, Endone and OxyContin tablets to treat significant and ongoing pain associated with the right knee injury. In these circumstances, I was satisfied that, as claimed by the plaintiff, he probably had ceased taking Mersyndol because the medication prescribed for treatment of his right knee injury also treated any ongoing symptoms in respect to his right hand injury. However, based on all of the evidence I think it unlikely that the plaintiff, who also said that but for the prescription medication he would still be taking Mersyndol, required prescription medication to aid sleep disrupted by right hand pain in the year before or since the right knee injury. This does not mean that pain had not, as the plaintiff said, disrupted his sleep and, until he commenced using prescription medication for his right knee injury, he had required regular nightly doses of over-the-counter medication, Mersyndol.
[37]PCB 20-21.
[38]PCB 38.
[39]PCB 10.
[40]PCB 41.
[41]TN 27-28.
[42]TN 56.
[43]Exhibit D4.
54 As to his functional difficulties the plaintiff stated:
· the grip in his right hand has been significantly weakened. He apparently either uses his left hand or avoids tasks requiring any strength. As I have noted, following correctional surgery, by November 2008 the plaintiff's grip strength, as measured and recorded by the treating surgeon, had improved. The defendant sought to challenge the plaintiff's credit on this issue.[44] It is unlikely that, as first thought, the assessment containing grip strength measurements tendered by the plaintiff was carried out by Mr. Kossmann. He made no mention of having measured the plaintiff's grip strength in his report in October 2011. However, Mr. Stapleton measured this in December 2011 reporting the average on the left as 78 kg and on the right as 24 kg.[45] Mr. Stapleton was not cross-examined. He is a hand specialist. Save for Mr. Battlay, Mr. Stapleton and the other specialists saw no reason to question the appropriateness of the measurements obtained or that the plaintiff was genuine in his presentation;
[44]TN 72.
[45]PCB 38.
· he is unable to fully straighten or flex his right index finger, he cannot make a full fist (as observed by Mr. Kossmann the second finger was overriding the right third finger[46]) and he cannot oppose his thumb and index finger or make a pincer movement with his index finger and thumb. Not surprisingly, the impaired functioning of this hand has led to difficulties in grasping objects. Moreover, as the plaintiff told Mr. Kossmann he has difficulty picking up small items and items dropped out of his hand on a regular basis. In Mr. Kossmann’s opinion the plaintiff's inability to do fine motion work with his index and third fingers was one of a number of factors which limited his capacity to work;[47]
· his capacity to perform some self-care tasks such as shaving is compromised such that he either needs his wife’s help or the plaintiff uses his left hand -- “I can shave, but to hold (a razor blade) it is very awkward because I can't put pressure on the three main fingers that have been injured ... .”[48]
[46]PCB 21.
[47]PCB 20 and 22.
[48]TN 53. See also his wife's affidavit at PCB 15.
55 As to the impact on the plaintiff’s domestic, social and recreational activities the plaintiff said that:
· driving holding on to a steering wheel causes cramping and numbness in his right hand;[49]
[49]PCB 10.
· he gave up rock climbing and abseiling (each of which he previously undertook 4 to 5 times a year) and kayaking (in which he previously engaged with his brother once a fortnight).[50] In cross-examination the plaintiff explained that (having since his injury tried abseiling and kayaking once each) he is no longer able to hold his own weight on his right hand to rock climb, nor is he able to use his right hand as a break to abseil and trying to hold an oar in his right hand caused his hand to cramp;[51]
[50]TN 19-20.
[51]TN 21 and 22-23.
· he no longer plays the guitar (played daily pre-injury) because he is unable to hold the plectrum or pick the strings to obtain the right note;[52]
[52]TN 21.
· while this was not mentioned in his first affidavit, he can no longer enjoy his hobby building model aeroplanes. In the past (“[t]hat was nearly a daily occurrence after work”[53]) the plaintiff built remote-controlled model aeroplanes by cutting out shapes from balsa wood, which he then assembled with glue and pins. In cross-examination the plaintiff explained that he gave up this hobby due to pain in his hand and, having tried to do this following his injury, difficulty holding the stanley knife to cut the balsa wood. Consequently, the plaintiff now buys pre-made foam model aeroplanes and replaces broken with newly purchased parts, rather than repair them himself.[54] However, as some segments of the film shown at hearing demonstrate, the plaintiff still flies his model aeroplanes as a hobby;
· he and his family currently live on a farm. Whilst the plaintiff still tries to help out domestically by gardening, chopping wood or mowing the lawn, activities which he said caused a lot of pain for a considerable period afterwards, it has been necessary to hire trades people to perform some domestic tasks and to rely more heavily on other members of his family. In cross-examination the plaintiff said his wife mainly did the pruning and a friend comes in and helped him on weekends, or if his son is not working he assists.[55] The unchallenged evidence of both the plaintiff's wife and his 21-year-old son, amongst other things, serves to corroborate these claims.[56]
[53]TN 20.
[54]TN 22.
[55]TN 33.
[56]PCB 14-18.
The medico-legal evidence
56 I have already referred in passing to the up-to-date reports of Mr. Kossmann and Mr. Stapleton. Neither specialist recommends any further treatment or intervention by way of surgery.
57 Essentially, they have both accepted that, notwithstanding the correctional osteotomy performed some years earlier, impaired functioning of the plaintiff's right hand particularly affecting the right index finger, as well as altered sensation and ongoing right hand pain, has compromised the plaintiff's capacity for employment and precludes a return to his pre-injury work as a truck driver.
58 Arguably, the loss of function of the plaintiff's dominant right hand is a significant factor because he is a middle-aged man used to manual employment whose current full-time employment is dependent on his brother's goodwill.
59 Mr. Kossmann and Mr. Stapleton have also accepted that pain and the impaired functioning of the plaintiff's right hand impacts on the plaintiff's domestic and recreational activities in the manner and to the extent described by him.
60 At hearing there was some debate about whether the plaintiff could also rely on Mr. Kossmann's positive assertion that the plaintiff: “suffers from osteoarthritis in his index and third fingers. He has movement restrictions and pain in his right index finger and in his third (middle) finger. I do not expect the symptoms will improve. On the contrary, they are likely to deteriorate over the upcoming years. I cannot give you an exact time frame.”[57]
[57]PCB 23.
61 The most recent radiological evidence was obtained in January and February 2005. As such, it predates the correctional surgery. Mr. Stapleton's report was silent on this issue. The defendant called no evidence to contradict what the plaintiff correctly submitted was an assessment made by a professional witness within his area of expertise. It is a conclusion no doubt influenced by Mr. Kossmann's findings on examination (restricted movement) and the plaintiff's reported pain. In all the circumstances of this case I was satisfied that this evidence provided a reliable basis for taking this factor into account when assessing the plaintiff's pain and suffering consequence.
Compensable injury
62 To summarise then, on 16 September 2004 the plaintiff suffered a compensable crushing injury to his dominant right hand in the course of his employment with the defendant. At age 48 he faces a future of persistent pain and ongoing disability which translates into meaningful and significant restrictions on the function of his dominant right hand and on his day-to-day activities.
63 Based on all the evidence the plaintiff satisfied me that impairment of his right hand is permanent in the sense that it is likely to last for the foreseeable future and that when judged by comparison with other cases in the range of possible impairments the pain and suffering consequence met the “at least very considerable” test.
Orders
64 For these reasons I propose to make an order granting leave to the plaintiff to commence proceedings against the first defendant in respect of pain and suffering damages only for injury to his right hand on or about 16 September 2004. I will hear from the parties on the making of appropriate orders.
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Certificate
I certify that these 21 pages are a true copy of the reasons for judgment of Her Honour Judge Millane delivered on 8 March 2012.
Dated: 8 March 2012
Hannah Christensen
Acting Associate to Her Honour Judge Millane
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