Jiwani v 7 Chefs Pty Ltd
[2023] VCC 1127
•3 July 2023 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-03469
| ANA JIWANI | Plaintiff |
| v | |
| 7 CHEFS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 July 2023 | |
DATE OF JUDGMENT: | 3 July 2023 (ex tempore) | |
CASE MAY BE CITED AS: | Jiwani v 7 Chefs Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1127 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the finger – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:TTB SMS v Reading [2020] VSCA 203; Cahun v Victorian WorkCover Authority [2023] VCC 413
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Frederico with Ms R Heffernan | Shine Lawyers |
| For the Defendant | Ms S Manova | IDP Lawyers |
HIS HONOUR:
1This is an application for serious injury brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2Specifically, the plaintiff claims to have suffered a serious physical injury pursuant to s325(a) of the Act, by way of a physical injury to her right dominant hand.
3The proceeding was conducted in a slightly unusual manner in that the plaintiff was not required for cross-examination.
4
The plaintiff tendered a joint court book,[1] and that comprised the evidence in the proceeding. For completeness, I note at the commencement of the case,
Ms Frederico, leading counsel for the plaintiff, tendered two affidavits of the plaintiff sworn 3 July 2023.[2] Those affidavits are effectively the plaintiff's affidavit sworn on 4 April 2022, and her further affidavit sworn 30 June 2023, but with confirmation with the assistance of a professional interpreter that the contents of the first two affidavits were correct, save for a minor typographical amendment.
[1]Exhibit P2.
[2]Exhibit P1.
5This is also a slightly unusual proceeding in that the parties, to be blunt, are in heated agreement, it seems to me, about everything except the result. There is no dispute in this proceeding that an incident occurred at work on 20 March 2019 when the plaintiff was working for 7 Chefs, and her right hand, to a lesser extent left hand, became caught in a pasta making machine. There is no dispute that her right hand was trapped for a short period of time. There is no dispute that she has suffered an injury because of that incident, and there is no dispute that she has ongoing consequences from that injury.
6The dispute is a narrow but important one, namely, whether the plaintiff's pain and suffering consequences, noting that she seeks leave to commence a proceeding for pain and suffering, meet the well-known "very considerable" test. There is no dispute, as I say, of the incident or the injury. It has necessitated three surgical procedures that I will set out briefly when dealing with the medical material. The first being on the day of the injury at the Fawkner Hospital, and then two further proceedings with Mr Baldwin, a hand surgeon, on 20 March 2019 and 10 June 2020. There is no dispute that from about the middle of 2020, perhaps a little later, when the plaintiff ceased hand therapy, that she has effectively had no treatment since then.
Medical evidence
The plaintiff’s treater medical evidence
7I turn then briefly to say something about the medical material. It is in relatively short compass. Commencing firstly with her treating general practitioner, Dr Maria Bhurgri, of the Pascoe Vale Road Family Clinic. In a report dated 24 March 2023,[3] Dr Bhurgri diagnosed the injury to the plaintiff's hand, noted the surgery and said: "Ana has been left over with pain, weakness and disability".
[3]Joint Court Book (“JCB”) 87.
8A little further on the general practitioner noted the plaintiff did not have a capacity to perform pre-injury employment because of pain, numbness and hypersensitivity to touch and weakness, but went on to say that the plaintiff could work where she does not have to involve the hand of the little injured finger, and said anything like security work or any work with no physical involvement was suitable employment.
9Relevantly, in respect to pain and suffering type consequences, the doctor said that, "there are a few issues, for example, she cannot do, for example, anything where her little finger gets involved, it starts hurting if touched and becomes severely painful". The doctor next said that the plaintiff had developed a lifelong disability due to her injury and, "it's uncertain that at any point or stage she'll be able to live her normal life".
10I cannot say from Dr Bhurgri's report when she last examined the plaintiff or treated her for the right hand injury, but it appears from the whole of the evidence that it was probably somewhere in or about the middle of 2020. And so to that extent there is some limitation on the usefulness of her opinions as at today, bearing in mind the test of “serious injury” is as at today.
11Next, the treating hand surgeon, Dr Baldwin. His evidence is contained in several letters, but a comprehensive report from him dated 5 June 2023,[4] sums up his treatment. He notes that when he first saw her the plaintiff had previously had a tendon injury repaired at the John Fawkner Hospital on 20 March. He goes on to set out his treatment, principally directed towards a triggering of the middle finger. He ultimately performed a trigger finger release on 10 June 2020. In his report, he noted the plaintiff then remained under the care of a hand therapist for appropriate management, but was permitted to return to work on light duties. He said he had not seen the plaintiff since June 2020, so he could not comment on her current or future medical prognosis. There are obvious restrictions in the use of his report for an assessment of “serious injury” as at today's date.
[4]JCB 58.
12That is really the extent of any material from treating practitioners.
The medico-legal evidence
13Turning then to medico-legal evidence. There is a report from Dr Barton, but it is out-of-date and not much turns on it.
14The first relevant report is from Dr Damon Thomas, a hand surgeon, who saw the plaintiff for the purpose of an impairment assessment and reported on 23 November 2021.[5] He described the injury as follows:
"She sustained a right little finger laceration with 100 per cent division of her flexor digitorum profundus, flexor digitorum superficialis and ulnar digital nerve. She had surgical repair of these on 20 March 2019. This was a single operation to repair the injured finger. Subsequently to this she had triggering involving the right middle finger and went on to an open A1 pulley release".[6]
[5]JCB 48.
[6]JCB 49.
15Mr Thomas then said further that:
"Current symptoms and signs are that of pain in the right hand, reduced range of motion, particularly the little finger and right little finger numbness. She feels her left hand had made a full recovery. She feels she is otherwise fit and well, is on no medications".[7]
[7]JCB 49.
16Next, under "Analysis of Findings", Mr Thomas said:
"The overriding diagnosis here is of a right little finger crush injury with a laceration with divided flexor tendons and ulnar digital nerve injury with surgical repair. She has post-traumatic issues with reduced range of motion, reduced sensation".[8]
[8]JCB 50.
17Pausing, Mr Thomas makes clear in his report that the main consideration, or main difficulty that he assessed, was to the right little finger. I will return to that in a moment. In any event, returning to his report, he said the prognosis moving forward is that he would expect the condition to be stable. He would not expect any improvement or deterioration.
18He described effects on occupational tasks as that the plaintiff had limited use of the right little finger, and thereby hand, with anything physical or repetitive. He then set out a table numbered (1) through until (9) of various activities of daily living. He found some reduced capacity for reaching and reduced capacity for pushing and pulling, as well as altered sensation to the little finger, and a reduced capacity for hand function. His report is otherwise an impairment assessment and therefore of no great assistance in determining the issue of “serious injury”.
19The two medico-legal reports that are perhaps of the most assistance for the resolution of this proceeding are from Dr Murray Stapleton and Dr Robyn Horsley. Dr Stapleton is a plastic and hand surgeon, Dr Horsley is an occupational physician.
20Dealing first with Dr Stapleton, he examined the plaintiff by video link and provided a report dated 21 February 2023.[9] Early on in his report he noted he had the opinion from Mr Thomas, he said:
"Since that time, as one would expect with an injury such as this, Ana has improved quite remarkably. Her right hand remains a problem, but her left hand is now completely recovered".[10]
[9]JCB 60.
[10]JCB 61.
21A little on in the report, under the heading of "Current Status", he described the right hand as remaining a problem. He said in the cold weather the right hand is very painful. Domestic duties such as holding heavy pots are difficult because the power of her grip was weaker, which he said one would expect from a little finger injury. He also noted on cold mornings the plaintiff was unable to lift heavy pots and pans. He said she had not lost any sensation at the tip of that right little finger.[11]
[11]Ibid.
22Under a "Social History" he noted the plaintiff was married then with a 2 month old baby daughter. Her noted her previous hobby of badminton. He said that because the power of her grip was somewhat reduced that badminton was now not possible. Under "Examination" he described that the little finger was the problem now, and he set out various findings.[12]
[12]JCB 62.
23In respect to the consequence from the injury, he said that the plaintiff would now be limited for activity involving heavy lifting. Pushing and pulling would have to be avoided, and that being the case activities such as being a kitchen hand, where she might be required to cut vegetables or wash dishes would be a problem for her. He otherwise described her capacity for suitable employment. He said that:
"Given that the power of her grip is reduced, her social, domestic and recreational activities are also affected, for obvious reasons".[13]
[13]JCB 64.
24That is the extent of the relevant evidence in Dr Stapleton's report. It is a relatively brief report.
25Turning next to Dr Horsley. She assessed the plaintiff and provided a report dated 8 March 2023.[14] Under a heading of "Social History" she noted the plaintiff was now an at home mother coping with the requirements of her young child. She said that the plaintiff does all the housework at home. She is self-paced and self-managed, and manages the requirements for her young baby. She noted the previous hobby of badminton and said the plaintiff had been unable to return to that because of the jarring effect of the racquet. She set out various matters to do with the plaintiff's education, work history and the like.[15]
[14]JCB 76.
[15]JCB 77.
26Under a heading of "Current Problem" she noted the difficulty with the trigger finger and the further surgery from Dr Baldwin, and noted the plaintiff had been followed up with hand therapy from a Ms Fiona Moate, from 25 March until the end of 2019. There was then a gap because of COVID, and then the plaintiff returned to hand therapy from June 2020, attending every 2 to 3 weeks until she ceased in October 2020. [16] Not that much turns on it, but that is the best evidence of the most recent treatment.
[16]JCB 79.
27Dr Horsley said the plaintiff then had no medical management since October 2020, but attended her local GP as needed in Pascoe Vale, "not really regarding her hand". She noted the plaintiff's primary complaint was to be cold weather. She described the plaintiff's restrictions to include at night when it was cold, or when washing the baby's clothes in the morning, or when cold in Ballarat the plaintiff was experiencing pain in the radial side of the right little finger and sometimes the wrist, which can last for up to 30 minutes and can be up to 7 to 8 out of 10. She described the plaintiff heating up her hand using warm water, and that that removed the pain. She had a history that the plaintiff did not take any medication. She described discomfort around the trigger finger release area, and that the plaintiff had difficulty with lifting heavy items, such as pots, due to reduced grip strength.
28Dr Horsley noted the pain primarily occurred over the winter months and exposure to cold was a major issue. She said that over summer and on warm days "there is no major issue". She then said, of the plaintiff's functional tolerances, that they were normal "including sitting, dynamic standing, standing static, walking and driving tolerances". She described the plaintiff as coping with the birth of her baby.[17]
[17]JCB 80.
29Dr Horsley's opinion is set out at court books page 82 to 83. At page 83, she said the plaintiff would have difficulty returning to kitchen hand process work that involved repetitive and heavy manual handling, and would need to work in an environment where exposure to cold is minimised and strategies are put in place to decrease that exposure. She said the plaintiff was not looking for work, having delivered her baby 3 months ago. She said the plaintiff was likely to be an at home mother until the baby commenced school. It is unclear whether that was a quote from something the plaintiff had said, or an impression that Dr Horsley had formed. In any event, she described a capacity for work within the restrictions, and said the decision to return to work would be based on her psychosocial situation, which I understand to be a reference to the baby being of school age. But she said that the injury did impact the types of roles the plaintiff could pursue.
30She said that the restrictions outlined within her report impacted upon social, recreational and domestic activities. She thought the plaintiff would benefit from some education from a hand therapist about avoiding cold environments and exposure to the cold, and strategies she could put in place to avoid such exposures which would reduce her level of discomfort.
31That is the extent of the relevant medical evidence.
The affidavit evidence
32I turn then to the plaintiff's affidavit evidence, commencing with perhaps an obvious comment, in circumstances where she was not cross-examined, and that is that this is not a case where the plaintiff's credit is put in issue by the defendant. And I accept the submission that her affidavit evidence should be considered in that light. But equally the fact that a defendant makes a forensic decision not to cross-examine someone should not be elevated to something that it is not. Effectively, in this case, the defendant says there is no need to cross-examine the plaintiff because her own evidence does not elevate the consequences to "very considerable".
33In any event, I have considered the evidence in each of the plaintiff's affidavits, and also the evidence from her husband. I should say that leading counsel for the plaintiff, in my view, in a very careful, thorough and considered opening and closing address, took me carefully through the relevant consequences in those affidavits.
34Relevantly though, I have considered what the plaintiff said from paragraph 27 onwards in her first affidavit, namely, that she currently does not see any doctors for treatment because she has been told there is nothing more that can be done. I note her evidence that when she is not working or doing much physically with the right hand she does not have pain, but pain develops as soon as she starts using the right hand. In that affidavit, she described using pain medication every 2 weeks or so, and when having a sharp flare-up she would usually take 2 Panadol tablets every 4 hours until she got some relief. She described how she has had to change the way she does activities to protect her right hand, and sets out a range of day-to-day activities such as carrying shopping, housework, mundane tasks such as opening bottles or turning on taps and the like now being difficult for her.
35She described the little finger as still being painful to touch, especially in cold weather, and wearing a finger guard or protector on it. She described restricted movement in the right hand and not being able to make a complete fist, and a loss of grip strength making gripping items difficult. She describes cooking, cleaning and similar activity, but requiring assistance from her husband.
36In her more recent affidavit of 30 June 2023, she repeats a number of those day-to-day restrictions. She described pain in that affidavit in the right arm, hand and right little finger and feeling pain as soon as she starts using the hand, and in the cold weather even without doing anything.
37Consistent with the focus in the medical material upon the little finger the plaintiff said in her second affidavit, "I feel the most pain in my right 5th finger but I have a scar on the middle finger which is extremely sensitive". She then described a stabbing pain in the middle finger often. She says the pain is worse in the cold weather.
38Perhaps consistent with the fact that the plaintiff by the time she swore her second affidavit had become a mother, she then set out a range of restrictions or difficulties she has in caring for her daughter. To some extent they speak for themselves, and I have noted the restrictions described at paragraph 16 through until 20, and then vaguely in her evidence in paragraph 21 of having some assistance from family when she was in Pakistan until returning very recently on 23 June.
39I have taken into account the consequences described at paragraphs 22 to 34. The thrust of that evidence really is that she has difficulty using the right hand, and that tasks are difficult for her. Perhaps, save with the exception of badminton, her evidence really is not that she has given up activities. To illustrate the point she says around the house she does most of the cleaning but cannot do it as quickly or at the level she once did. She described mopping the floors as hard and that she could only do light vacuuming. She described doing the laundry very slowly and that making the bed was difficult. She described how she had modified tasks such as grocery shopping, hanging out the washing and the like.
40The other affidavit is that of her husband – Anis is the only name I have for him. Curiously, in that affidavit he does not describe the fact that he is full-time working. In fact, from reading his affidavit one could infer that he was at home 24/7 providing assistance. That is not the case. Nevertheless, in his affidavit he confirms some of the restrictions that the plaintiff herself had described, such as difficulty cooking in large pots or moving large and heavy pots. He described the plaintiff having difficulty using her little finger when gripping a knife and making it difficult to cut vegetables. He described her doing light vacuuming, doing the laundry slowly and that making the bed was difficult.
41He discussed in his affidavit a restriction for driving, but as I understand his evidence that seems to be more from some form of emotional concern the plaintiff had, and loss of confidence. He described the plaintiff having difficulty holding their daughter, and that he performed most of the bathing and dressing. He said he must fold and unfold the pram on every occasion. Not much turns on it, but I have some concern as to whether that is accurate evidence in circumstances where he is working full-time, and the plaintiff described in her affidavit difficulty she had when pushing the baby in the pram. He then otherwise set out a range of consequences, some of which have already been discussed, such as holding a knife, carrying shopping, unwrapping ice-cream or even holding his hand. But he then talks about the plaintiff being angered, offended and embarrassed, which rightly or wrongly are consequences that I cannot take into account for a physical injury.
The parties’ contentions
42For completeness, I note that counsel for the defendant, Ms Manova, provided a written closing submission and then briefly spoke to that as a right of reply. As indicated to Ms Manova, I have considered the written submissions as if they are the oral submissions of the defendant. Helpfully, counsel for the plaintiff provided both a chronology and a brief outline of submissions which I have also considered.
43At the risk of repetition, I do not consider that the relevant legal principles are contentious or in dispute in this proceeding. Counsel for the defendant placed some emphasis on what was said by the Court of Appeal in TTB SMS v Reading.[18] Leading counsel for the plaintiff made a reference to a judgment of mine in a matter of Cahun v Victorian WorkCover Authority.[19] Ultimately Reading is probably more authoritative than Cahun, because Cahun, in my opinion, was more a judgment about scarring and disfigurement. But not much turns on the cases I was taken to because of course each case must turn on its own facts and be considered on its own facts.
[18][2020] VSCA 203 (“Reading”).
[19][2023] VCC 413 (“Cahun”).
44Nevertheless, there is some force in the submission that Reading is of relevance to this proceeding in the sense that it is an example of a scenario where the Court of Appeal concluded that a very considerable consequence was not made out for an injury and a set of consequences that on one view might be said to be similar to the evidence in this proceeding. But having said that, Mr Reading was not a new stay at home mum with a young daughter that he was having difficulty caring for, which really highlights the point that each case must turn on its own facts.
45There is no dispute that it is the plaintiff who bears the evidentiary onus to establish serious injury. There is no dispute that the assessment of serious injury is a value judgment informed on the evidence, but also informed in part by reference to what a plaintiff says about the injury, or in this case her level of pain, the level of impairment, and impairment consequences, but, of course, in context of a consideration of the broad range of possible impairments and impairment consequences and not just those that come before the courts.
Conclusion
46First, I accept the plaintiff has sustained injury to each of the right middle finger and right little finger. I accept that she has a slight inability to make a fist, and a reduction in grip strength. I accept that she has pain, particularly in the right little finger from time to time.
47Second, I conclude that the pain is not constant and that it comes and goes. I conclude it is worse in the cold weather, or with activity that requires the use of the right hand, but in particular the use of the right little finger for activity that requires gripping and lifting. I accept that every few weeks she has a flare-up of symptoms that requires the use of over-the-counter painkilling medication. It is difficult to say on the evidence exactly how much painkilling medication the plaintiff takes on each of those occasions. It is difficult to say how long a flare-up lasts for.
48There is other evidence that at times she gets a sharp stabbing sensation in either the right middle finger or right little finger if it is used for activity or if it is not. It is unclear though whether a flare-up is for 30 minutes at a time or something less than that, noting her further evidence that she uses heat, in particular warm water, and that seems to assist the pain.
49Third, the medical evidence in this proceeding is slightly at odds with the plaintiff's affidavit evidence. The medical evidence, in particular the reports from Dr Thomas, Dr Stapleton and Dr Horsley, do not paint a picture as bad as set out in the plaintiff's affidavits, but ultimately in my view nothing turns on that.
50Fourth, I accept the plaintiff has the difficulties for day-to-day activity, as set out in her affidavits, in particular, in caring for her daughter. I accept that she requires assistance from family for a range of day-to-day activity.
51Fifth, equally, the evidence is that the plaintiff still engages in a range of day-to-day activity. As discussed with her leading counsel this is not a scenario whereby she cannot or does not care for her daughter. It is not a scenario whereby she cannot or does not engage in day-to-day activity such as cleaning, cooking, driving and the like.
52Sixth, I conclude that the plaintiff does have times when she is pain-free, particularly in the warmer months. I think I can take judicial notice that Ballarat is very cold, particularly in the winters. It is unclear on the evidence whether the plaintiff and her husband are temporarily residing in Ballarat because of visa issues, or whether they intend on settling permanently in Ballarat. Again, not much turns on that, but I accept that living in a cold climate such as Ballarat would mean that the plaintiff is exposed to scenarios whereby she has an increase in her pain. But, equally, the thrust of the medical evidence is that one fairly simple way to manage that is by staying indoors and staying warm, or wearing gloves as needed. And, in fact, Dr Horsley went so far to say that the plaintiff could work as a security guard in a cold climate provided she wore gloves.
53There are some cases that are clearly serious, and there are some that are clearly not. There are some that fall somewhere in the middle of the range of possible impairments and impairment consequences, and the proceeding before me is one such example.
54Having considered the whole of the evidence, I consider that the result is as set out in paragraph 1 of the defendant's closing submissions, namely, that whilst the plaintiff is left with some residual impairment in the affected fingers, which is not trivial, in my view it cannot be described as at least very considerable. The case before the Court is an example where sometimes good people have bad things happen to them, but simply do not meet a statutory threshold.
55For those reasons the proceeding is dismissed.
56I will hear from the parties on the question of costs.
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