Jolly v IXL Metal Casting Pty Ltd
[2012] VCC 1880
•13 December 2012
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04986
| GARY ROBERT JOLLY | Plaintiff |
| v | |
| IXL METAL CASTING PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 29 November and 3 December 2012 | |
DATE OF JUDGMENT: | 13 December 2012 | |
CASE MAY BE CITED AS: | Jolly v IXL Metal Casting Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1880 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – right hand injury – pain and suffering damages only – whether impairment satisfies the “narrative test”
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Barwon Spinners Pty Ltd v Podolak & Ors (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison SC with Mr A E A Macnab | Slater & Gordon |
| For the Defendants | Mr R K Meldrum QC with Ms S Manova | Wisewould Mahony |
HIS HONOUR:
Introduction
1 By way of Originating Motion dated 18 October 2011, Mr Gary Robert Jolly (“the plaintiff”), seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (‘the Act”) to bring common law proceedings to recover damages for injury to his right hand suffered during the course of his employment with IXL Metal Casting Pty Ltd (“the first defendant”) on 14 November 2008 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s134AB(37) of the Act.
3 The plaintiff and the plastic and reconstructive hand surgeon, Associate Professor Felix C Behan, gave evidence and were cross-examined. Both parties tendered various documents.[1]
[1]See Annexure A
Relevant Legal Principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:
“serious injury means—
(a) permanent serious impairment or loss of a body function … “
6 The part of the body said to be impaired for the purposes of paragraph (a) is the right hand.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)“the injury” was suffered in the course of or due to the nature of his employment with the employer on or after 20 October 1999;[3]
(b)“the injury”, with its resulting impairment, must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c)“the consequences” to the plaintiff of “the injury” in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … [can be] fairly described as being more than “significant or marked”, and as being at least “very considerable”.[5]
The test for “serious” is sometimes referred to as the “narrative test”.
[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd v Podolak & Ors (2005) 14 VR 622 at [11]
[4]See Barwon Spinners ((op cit) at [33]
[5]See s134AB(38)(b) and (c) of the Act
8 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of (a) of the definition of “serious injury”. These can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[6]
(b)must make the assessment of “serious injury” at the time the application is heard;[7]
(c)must give reasons which are as extensive and complete as the Court would give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[8]
(d)notes that it has been observed that the question of whether an “injury” satisfies the narrative test is largely a question of impression and value judgment.[9]
[6]See s134AB(38)(h) of the Act
[7]See s134AB(38)(j) of the Act
[8]See s134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at [89] – [92]
[9]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at [628]; Sabo v George Weston Foods [2009] VSCA 242 at [67]
The Issues
9 Counsel for the first defendant informed the Court that there was no issue that the plaintiff had suffered a compensable injury with some minor impairment and some minor consequences. The issue between the parties was as to whether or not the consequences of the impairment satisfied the narrative test – essentially, it is that type of case referred to as a range case.
The Evidence of the Plaintiff
10 The plaintiff gave evidence that he swore two affidavits in support of his application – one dated 29 April 2011[10] and the other on 19 November 2012.[11]
[10]See Exhibit 1 at page 17 Plaintiff’s Court Book (“PCB”)
[11]See Exhibit 1 at page 26.1 PCB
11 When queried as to what was his dominant hand, if any, the plaintiff gave the following evidence:
“My left, I’d have to say. I use both hands virtually. Proficient both sides of my body. But I write left handed, I throw right handed.”[12]
[12]T7, L22-24
12 The plaintiff added that he is a right handed golfer, plays tennis left handed and is a right handed cricketer.
13 During the course of his evidence-in-chief, I requested that I have an inspection of the plaintiff right hand and also requested that he demonstrate movement with his left hand to gain some comparison.
14 When asked to expand on various matters set out in his affidavits, the plaintiff gave the following evidence:
Q: “Now, you’ve said that you have difficulties with fishhooks. When you get a fishhook can you just demonstrate how you would do that pre-accident? Which hand do you hold the hook in and which hand do you hold the line?‑‑‑
A: I do everything the same as I did before just with - it’s difficult that’s it. So yeah.
Q: Which hand do you hold the hook in?‑‑‑
A: That one.
Q: The left hand?‑‑‑
A: (Indistinct) I (indistinct) said, I do everything with that hand.
Q: What is the difficulty you encounter for example with that ‑ ‑ ‑ .”
HIS HONOUR: (To witness)
Q: “Just to that task?‑‑‑
A: Just to grip - just to grip and try to get it through and pulling it, that’s all. I can do and yes it’s difficult.”
MR HARRISON:
Q: “So what’s the problem?‑‑‑
A: It just takes longer, that’s all, yes.
Q: What restriction or difficulty do you encounter with your right hand?‑‑‑
A: Just the manipulation of it, that’s all.
Q: You said you had problems with belt holes with your right hand. Putting a belt on?‑‑‑
A: Yes, putting ‑ ‑ ‑
Q: What is the problem there?‑‑‑
A: Just the awkwardness of it. The - to try and get it around, get it in through that - that’s all.
Q: Through the hooks?‑‑‑
A: Through the hooks, yes.
Q: You have also talked about you modifying the way in which you use a knife. Could you just hold your hand up please. Perhaps if we give you a pen. Can you show his honour how you hold a knife now?‑‑‑
A: Like that (demonstrating).
Q: Just open your palm so my learned friend can see?‑‑‑
A: Yes, all right.
Q: That is how you hold a knife now?‑‑‑
A: That’s how I hold a knife now.
Q: If you’re cutting vegetables or something is that how you hold a knife?‑‑‑
A: Yes, the same (indistinct).
Q: How does that affect you in terms of manual dexterity and fine motor skills in doing that type of task?‑‑‑
A: It’s just awkward, it’s - I still do it. So yeah.
Q: You also said that you were prone to dropping things. What sort of things? Can you think of any examples of things you’ve dropped?‑‑‑
A: Well, as I said, my wife’s passing you a phone and it’s gone straight through my hand.
Q: By phone do you mean a mobile phone?‑‑‑
A: Mobile phone.
Q: So that’s sort of the thickness of ‑ ‑ ‑?‑‑‑
A: Yes, yes ‑ ‑ ‑
Q: - - - a third of a pack of cards or something?‑‑‑
A: Yes.
Q: And what’s happened to it?‑‑‑I
A: It’s just gone straight through my hand, straight to the floor.
Q: Anything else you can think of? How do you go with glasses?‑‑‑
A: I have dropped things, yes, glasses. Washing dishes I do - do the dishes at home every night. There’s only two of us. So yeah. But don’t - I don’t do it all the time. That’s only very rarely that I do it but I have done it. So yeah.”[13]
[13]T8, L29 –T10, L18
15 The plaintiff also described himself as being a keen golfer and he has trouble with his hands moving on the club but he still plays golf. He applied a car heater hose on the grips of the clubs to make them bigger. He currently plays off a handicap of 24 and his handicap before the injury was down to 16, 17 or 18. Since the injury, he has been down to a handicap of twenty. When asked what was causing the golf handicap to go out again, the plaintiff stated:
A: “I’ve - losing strength in my - on my arm here now because I’ve got - I just haven’t got the power that I had.
Q: Are you able to roll up your sleeve?‑‑‑
A: (Demonstrating.)
Q: All right. So that’s your right bicep?‑‑‑
A: Yes.
Q: If you show His Honour your left bicep by comparison?‑‑‑
A: (Demonstrating).
HIS HONOUR: (To witness)
Q: At least as far as you figure it, why do you think your right arm’s not as strong?‑‑‑
A: Because I don’t use it as much. I virtually pass everything over to this hand now. So yeah.”[14]
[14]T11, L5-15
16 He has played golf twice a week generally every week throughout his life. Although he continues to play with the same regularity, he is unable to play as good golf as he did prior to the injury. The plaintiff also gave evidence of small annoying matters such as the number of pots of beer he can carry after a round of golf is reduced as a result of the injury and he is required to make a couple of trips to carry the required number of pots.
17 The plaintiff was shown various photographs depicting various machines and work activities.[15] The plaintiff explained that the photographs were taken at the premises of the first defendant with the permission of the first defendant and indeed the photographs were taken by Mr Ross McDonald.
[15]See Exhibit 1
18 The plaintiff identified the following photographs:
(a)Photographs 1 and 2 were of the die and press where the plaintiff hurt his hand
(b)Photograph 3 was of the tool room and the tool room office, which all showed a tap wrench next to a vice. The plaintiff explained that a tap wrench involves the process of putting a thread into drilled holes. The plaintiff further explained that he would be unable to operate that process now as he would not have the strength to operate the tap wrench. Similarly, he would have difficulty closing up a vice with one hand and would not have the power to use both hands.
(c)Photograph 4 is of a radial drill which the plaintiff accepted he would still be able to operate, insofar as that he did not have to perform the activity for a long time. The plaintiff explained that he can perform a “one off operation” by drilling one hole but could not perform an activity requiring 100 holes to be drilled. The plaintiff could not cope with the “repetitive gripping”.
(d)Photograph 5 shows a die rack which is used for lining up punches and shearing in. The type of work on this machine requires precision and experience. The plaintiff gave evidence that he would have great difficulty performing work on that machine because of the requirement to tighten bolts.
(e)Photograph 6 shows a milling machine which planes, drills, bores and does a lot of operations. The controls are on the right hand side. The plaintiff accepted he could use this machine occasionally but not repetitively.
(f)The last photograph showed a lathe. The plaintiff gave evidence he would be incapable now of changing various chucks and plates because you have to lift them, and locate then and then lock them up. He would be unable to have the strength to lift those now; they are too heavy.
19 The plaintiff was referred to the affidavit of Ross Alexander McDonald sworn 21 November 2012.[16] In that affidavit, Mr McDonald describes himself as a business development and engineering manager of the first defendant, having worked for the first defendant for some 32 years. Furthermore, he describes how he has known the plaintiff for about 40 years, having initially worked with him at the Ford Motor Company.
[16]See Exhibit A at page 13a Defendant’s Court Book (“DCB”)
20 One day in August 2012, the plaintiff attended the premises of the first defendant and a discussion ensued between them, wherein Mr McDonald mentioned he was having a problem with the trim tools and because the plaintiff’s experience in that area, he asked whether the plaintiff would be willing to come and give a hand with the trim tools. Mr McDonald then deposes:
“The offer was for a short term casual position to help with the trim tools and I mentioned to Gary that this may lead to some ongoing casual work.
I did not specify at the time whether this would be hands on work or work in a supervisory capacity. However the role would likely have involved Gary’s expertise in both a supervisory manner and, if needed, in a hands on manner.
Gary did not ask whether the work offer would involve hands on. He simply advised that he could not take me up on the offer.[17]
[17]See Exhibit B at page 13b DCB
21 The plaintiff confirmed that he did not accept the offer but also gave evidence that:
“I agree with it but there’s a few things that weren’t put in there like for instance the reason I didn’t take a job there was because I wouldn’t have been able to do the hands-on part, which I told him, but I offered him my advice that I was quite willing to go down at any time and help out down there, which I did, free, no cost to them. So yeah. So that’s why I’m on a very good relationship with (inaudible).[18]
[18]T13, L6-13
22 In particular, the plaintiff understood that the work would involve him working on a trim machine which he would not be able to do as a result of his injury. The plaintiff also identified various other machines and tools which he would either have great difficulty operating or using or indeed an inability to operate or use such machinery or tools as a result of the injury.
23 The plaintiff explained that in his role as a fitter and tool maker, such machines are common in his area of work and would be utilised frequently.
24 By way of his first affidavit, the plaintiff gave the following pertinent evidence:
·He is a sixty-seven year old married man with two adult sons and six grandchildren.
·He left school when he was fifteen and thereafter undertook an apprenticeship as a fitter and turner and has worked as a tool maker throughout his working life. His employment history is as follows:
(a)from 1961 to 1991 with the Ford Motor Company;
(b)from 1991 to 1995 with Coghlan and Russell Engineering;
(c)from 1995 to 1999 with Reder Tooling.
·On 22 December 1999, he commenced employment with the first defendant as a toolmaker and within a short period of time was promoted to leading hand/supervisor.
·On or about 14 November 2008, he suffered a crush injury to his right hand while carrying out maintenance on a fuel tank protector draw die. He was in the process of replacing gas springs in the top of the draw die when one of the shoulder bolts gave way and as a result the top draw pad dropped, crushing his right hand.
·He reported his injury and went to first aid, where his hand was iced for a period of time. Over the ensuing weekend, his hand was very painful and on 17 November 2008, he consulted his general practitioner, Dr John Edmonds, who put his middle finger in a splint. Dr Edmonds arranged for him to undergo x‑rays which he understood to reveal fractures of his right ring and right middle fingers.
·He returned to his employment with the first defendant but his ability to use tools was “very restricted”. His position was by and large supervisory and he continued to have problems with the right [hand?].
·Dr Edmonds referred him for further x‑rays in January 2009 and May 2009 and he understands that such x‑rays showed that he had suffered some osteoarthritic changes to the joints of the right hand.
·He was referred by his general practitioner to a rheumatologist, Mr Tarlib Taher, who advised him to continue with conservative treatment.
·He underwent some physiotherapy on the right hand at the Corio Bay Sports Medical Clinic but found he was not obtaining any benefit from this treatment. For a period, he needed to take painkillers and anti-inflammatory medication.
·In relation to what is referred to as “pain and suffering consequences”, the plaintiff states:
“My right hand and fingers ache if I use my right hand repetitively or over a prolonged period of time. I also suffer from numbness in my middle finger. It feels like a block of wood. I am unable to make a fist and my ability to undertake activities that involve heavy lifting, pushing or pulling are very difficult for me. I have lost strength in my right hand and fine and manipulative tasks with my right hand are very difficult for me.
As a result of my injury I am now prone to dropping things.
It devastates me that I am no longer able to use tools as I used to. I worked as a toolmaker for over 50 years. I retired from the defendant in June 2010. Prior my suffering injury, I had always planned to continue work well into my seventies on a casual basis. I had spoken about this with my previous employer, Frank Reder, who had indicated that he would have work for me as a toolmaker. I very much enjoyed working as a tool maker and I was good at it. In my retirement I hoped to continue to work on a casual basis, in part because I enjoy the work but also to continue to socialise and be around other likeminded people.
My ability to undertake gardening and home maintenance activities is now significantly reduced. I have been a keen fisherman for many years. I had to sell my fishing boat because I was no longer able to pull the anchor. I tried to raise the anchor by wrapping the rope round my right arm and pulling it, as I did not have the necessary strength in my right hand.
I now have difficulty putting hooks on fishing lines and baiting the hook. I have problems with putting belts through belt holes and I have had to modify the way I do things such as the way I use a knife when cutting meat or vegetables. I am now much more reliant on my left hand than I used to be.
I have also been a keen golfer for many years. As a result of my injury I now struggle to hold my golf clubs properly.”[19]
[19]See Exhibit 2 at pages 19-21 PCB
25 By way of his second affidavit, the plaintiff gives the following pertinent evidence:
·He continues to suffer the symptoms or restrictions as outlined in his first affidavit.
·After he suffered the injury, he continued to work for the first defendant but largely in a supervisory capacity but was restricted with respect to the sort of work that he could do. In particular, he struggled to cope with activities such as:
(a)carrying out fine and manipulative tasks and/or intricate work in tool maintenance and tool building, including the placement, alignment and tightening of small screws and bolts;
(b)operating and using machinery including lathes, milling machines, radial drills, cylindrical grinders, surface grinders, hand grinders and large manual drills;
(c)lifting heavy objects.
·He retired in 2010 but, absent his injury, he had planned to continue working well into his seventies on a casual basis.
Further Affidavit Material
26 The plaintiff also relies on affidavits from one of his previous employers, Frank Reder, sworn 11 July 2011 and his wife, sworn 1 November 2012.[20]
[20]See Exhibit 2 at pages 27-31 PCB
27 In his affidavit, Frank Reder describes himself as the managing director of “Reder Tooling” Belmont and that he has known the plaintiff for approximately twenty years. He also states that the plaintiff previously worked for him and was a “toolmaker and was a good worker”.
28 In particular, Reder deposes that:
“I intended to employ Gary on a casual basis once he retired from full time work at age 65.
Gary’s work at ‘Reder Tooling’ would have involved general tool making duties. He would have been called in an ‘as needed’ basis for 1-2 days each week.
Due to an increase in work during the last 5 months, I could have employed Gary on a full time basis.
Whilst further arrangements as to pay were to be discussed, Gary would have been paid approximately $30 per hour at Reder Tooling.
It would have been good to have Gary back on the floor at Reder Tooling, however due to his injury, this will not be possible any more.”[21]
[21]See Exhibit 2 at page 28 PCB
29 In her affidavit, Mrs Jolly deposes that the plaintiff is right hand dominant and that the injury to such hand has had consequences for “all activities involving the use of his hand”. In particular, Mrs Jolly refers to difficulties in carrying out work around the house, difficulties with gripping or holding various objects and difficulties with pursuing his “main interests” of fishing and playing golf. In particular, Mrs Jolly also states:
“I am also aware Gary had the opportunity to do casual work in his trade after he retired but was unable to do so as a result of his injury. Apart from the money he would have earned I know he was looking forward to the social contact this would have provided as well. I know he was good at his trade, and got a lot of enjoyment out of it, and was highly thought of by his work mates. Gary took a lot of pride in his work and was very upset when his injury robbed him of the ability to continue in it on a hands on way.”[22]
[22]See Exhibit 2 at page 31 PCB
30 The plaintiff was also taken to the affidavit of his wife sworn on 1 November 2012.[23] In part of that affidavit, his wife deposed:
“It is all the little things he used to take for granted using his right hand which he struggles with. Particularly where he has to grip or hold something. I often see him drop things. In the shower he struggles to use a cake of soap as it constantly slips from his grasp.”[24]
[23]See Exhibit 2 at pages 29-31 PCB
[24]See Exhibit 2 at page 30 PCB
31 The plaintiff gave evidence that he agreed with such observations, although he accepted he can use his left hand with the soap and it was not accurate to say that it was constantly slipping out of his grasp. He accepted that at times small pieces of soap could not be held in his right hand. Furthermore, he says it is not accurate to say that every time he goes to put ice cubes in a drink they end up all over the floor as deposed by his wife. In particular, the plaintiff gave evidence that” it’s just awkward, you know, as you said if you do it more than once your wife says you do it all the time.[25]
[25]T22, L31 – T23, L1
32 The defendant also relies on the following:
(a)affidavit of one Sandra Antonietta Priddle, the human resources manager of the first defendant, sworn on 12 September 2012;[26]
(b)affidavit of one Ross Alexander McDonald sworn 21 November 2012[27] to which I have already referred.
[26]See Exhibit B at page 1 DCB
[27]See Exhibit B at page 13a DCB
33 Ms Priddle describes how the plaintiff was employed by the first defendant as a toolmaker/supervisor. After the injury, the supervisor of the plaintiff, Ross McDonald, prepared a return to work plan and the plaintiff returned to work on full time hours supervising staff and instructing the new apprentice. According to Ms Priddle, he was not required to undertake any strenuous physical duties.
34 Ms Priddle notes that the plaintiff suffered injury to his right hand on 14 November 2008, ceased work on 17 November 2008 and returned to work on 20 November 2008. He lodged a WorkCover claim for medical expenses only. Apart from annual leave and shut downs over the Christmas period, the plaintiff worked normally until 30 June 2010, when he took annual leave and long service leave which carried him through to his official retirement date on 4 August 2010. He did no work between 30 June 2010 and 4 August 2010.
35 Ms Priddle deposes that the plaintiff gave no indication he intended to continue working after his retirement and she was subsequently informed that he had gone on a caravanning holiday for several months in the vicinity of Broome.
36 Ms Priddle also deposes that she was aware that the plaintiff enjoyed golf and fishing and that at no time did he advise her that his golf and fishing were impaired as a result of the injury.
37 Finally, in the last paragraph of her affidavit, Ms Priddle states:
“During my period of employment, Gary has not been a troublesome employee. I understand he was respected and considered to be quite good at his job.”[28]
[28]See Exhibit B at page 3 DCB
The Cross-examination of the Plaintiff
38 Under cross-examination, the plaintiff gave the following pertinent evidence:
· When employed by the first defendant, he did not set up tools for others but did his own work which was “hands on”.
· In his role as a leading hand/supervisor, he would issue work to other people and determine who would do the jobs.
· He commenced at 7.30 am and finished at 3.45 pm four days a week with generally, Wednesday off work. There was infrequent overtime.
· After the injury, he continued to work with the same range of tools but not as “efficiently as what I did before”.[29]
[29]T59, L5
· He was slower performing activities because he had a reduction with what he could do freely with his right hand.
· He was the boss and if he could not do it he would get help and he was delegating more after the injury compared to before the injury.
· Lifting “mainly” was something that he “could not do” after the injury. In particular, he thought, after the injury, he limited his lifting to a couple of kilograms and would not try and lift anything heavy.
· None of the machines were computer operated and all had manual operations.
· He took his long service leave through to his retirement at age sixty-five and made no arrangement to stay on with the first defendant beyond the age of sixty-age.
· He suffered the injury on a Friday and was back to work on the following Monday, and remained at work until he took his long service leave prior to retirement.
· Prior to the injury, he would work overtime, whereas after the injury, he did not engage in overtime as generally overtime involved fixing something on a weekend which involved “hands on” work.
· He had expertise on the trimmer and at the time he was working with the first defendant he had been in the industry for about forty years.
· When he first injured himself he went to the first aid and got a cold pack to place on his hand.
· He got back to golf about two months after the injury although he may have swung the golf club with one hand at an earlier time.
· He was playing competitive golf in the year when the injury occurred and he still plays competitive golf now. At the time of the injury he was playing in B Grade and plays in C Grade now. C Grade has a higher handicap than B Grade.
· At the time of the injury he believes he had a handicap between 16 and 18 whereas his present handicap is 24.3.
· When working he would play golf twice a week – on Wednesday and Saturday.
· He has been a member of the Inverleigh Golf Club (near Cressy) for twenty-five years and has been very active in the Club, being on the committee for about twenty years and captain of the Club for about three or four years.
· He was back playing 18 holes in a couple of months after the injury and also playing twice a week.
· He initially took Mobic on prescription from his doctor but after reading about it he considered that it was not “good stuff”.
· After Mobic, he has had no prescriptions from his doctor and just takes Panadol but there has been some time since he has been taking medication.
· Initially the pain was extreme but over time its severity has diminished. In particular, the plaintiff also gave this evidence:
Q: “Then as time went by also the frequency with which you would get the pain diminished?‑‑‑
A: No, I’ve always had constant pain in my hand.
Q: When you say constant, does that mean every waking moment or does that mean, most days it comes and goes?‑‑‑
A: Every waking moment I know it’s there, every time I use it, so yes.”
HIS HONOUR:
Q: “I want to be clear about this. The thrust of counsel’s question was ‑ ‑ ‑ ?‑‑‑
A: Pain.
Q: Yes, the thrust of counsel’s question was, I just want to be clear, when you say pain you’ve always got the experience of - you are experiencing something all the time as far as you are concerned?‑‑‑
A: Yes, Your Honour, yes, but not extreme pain.
Q: What is that something? Can you tell me what it is?‑‑‑
A: It’s just I’ve got a numbness in my finger ‑ ‑ ‑
Q: That’s your middle finger is it?‑‑‑
A: Yes, numbness there all the time and just - it’s just not right, my hand, my grip. It just feels, I know it’s there all the time so, yes. I’m not in extreme pain all the time unless I do a lot of repetitive stuff and then I get, you know, pain down my arm ‑ ‑ ‑ .”[30]
[30]T7, L14 – T72, L4
· He accepted that the pain, although not extreme pain, is “discomfort”. If he bangs the finger it hurts.
· He accepted that he is very much “ambidextrous”.
· He agreed with the suggestion that he told Mr Ireland, in relation to any pain in his right hand – “Not as such, but I have a tired feeling.”
· He considered that his right hand is deteriorating and that the muscle in his arm has deteriorated through lack of use.
· He accepted that he told Mr Ireland when he saw him that he slept well and that he did not awaken from sleep with pain or other symptoms affecting his right hand but that has changed and in particular, his ability to sleep at night, and he is having physiotherapy at the moment on the arm.
· The physiotherapy commenced about two weeks ago.
· He accepted that on 6 September 2004 he had a fall when he was up in Queensland on the Barcoo River near Longreach. At that time he fell down an embankment and felt discomfort in his right shoulder.
· He was referred for an x-ray and ultrasound in relation to the shoulder and later he underwent the physiotherapy.
· He has gone to physiotherapy because he has lost muscle bulk in his right arm and indeed it is painful and irritating at night now.
· He had problems reaching out and that before his fall on the river but his right arm is a “lot worse” since he had the fall.
· He accepted he does “… do a lot of things that I – I still do a lot of things but I’ve got difficulty doing [indistinct]”.[31]
[31]T79, L24-26
· He has been a handyman all his life and active in building things. He is still somewhat active but with limitations, and this year he has worked on a shed at home. This involved putting palings on the back of it and painting outside of the house.
· His wife is now retired and they have a caravan and they hope to go away for four months in the caravan staying in caravan parks and off-road camping.
· The caravan was purchased before retirement with the intention to do some travelling after retirement. In particular, the following evidence was given:
Q: “Did you buy it with the object that you would either do the grey nomad thing, circumnavigate the country?‑‑‑
A: Yes.
Q: Or just go away for the winters from Victoria?‑‑‑
A: No, I intended go away, if I could find some work while I was away, do a little bit of work, whatever, while I was away so yes.
Q: Have you on these trips got a bit of work?‑‑‑
A: Not as such, no, I haven’t attempted to.”
HIS HONOUR:
Q: “Sorry (indistinct)?‑‑‑
A: No, and I can’t do a job, you know, I wouldn’t volunteer for a job I can’t do.
Q: I take it you’ve done a bit of this travelling in the caravan already have you?‑‑‑
A: Yes, sir.
Q: Putting aside the injury for the purposes of the question, did you have the idea that you might go and squat at a place for a while and try and pick up some work as a fitter or something like that?‑‑‑
A: Yes I did, Your Honour, yes.
Q: What expectation did you have that you would be able to find that sort of work?‑‑‑
A: Well, beforehand a lot but not now because - yes, I’m restricted. But before I’d pretty well, I could do anything virtually so, yes.
Q: I understand that but I’m just really asking, say, you went to the Central Coast of New South Wales as part of your travelling, would you go and knock on factory doors or something would you?‑‑‑
A: Factory doors I could, yes, if I wanted a couple of weeks work, two or three weeks work. As I said what I do I’m very well skilled at so, yes.
Q: You are reasonably confident with your experience and background you’d be able to pick up work if (indistinct)?‑‑‑
A: Yes, Your Honour.”[32]
[32]T82, L8 – T83, L4
· Since his retirement he has been travelling in the caravan two to three months a year.
· The boat referred to in his affidavit was about 4.5 metres with a 40 Horsepower motor.
· He was fishing with his grandson, who was eleven years old, and he was going to pull up the anchor but he could not do it (that is his grandson) so the plaintiff wrapped the anchor line around his right arm in order to avoid the hand-over-hand movement pulling up the line.
· Since the injury, he has never been on a boat by himself because he “cannot physically lift the anchor up”.[33]
[33]T89, L6-7
· Prior to the injury, he had been involved with boats all his life, with his father selling boats, and also he had been involved in water skiing for twenty years.
· He was prepared to describe himself as an experienced person with boats.
· He had sold the tinny and its trailer a “good twelve months ago”.
· He still goes fishing and fishes nearly as often as he did prior to the injury. He does not always fish from a boat and has contact with family and or friends with boats.
· He reels in with his right hand, which he continues to do, but modified to some extent.
· Whereas before the injury there was “much … [he] couldn’t do” and since the injury he virtually does everything now with his left hand rather than his right. In this sense he does the same work and has pleasure from such work.
· He performs voluntary maintenance at his golf club one day and sometimes two days a week, encompassing 8-hour jobs. He utilises a sit-on mower and a small tractor and a motorbike.
· He is working more at the Golf Club than he did when he was working with the first defendant.
· When driving for a long period with his hands at the wheel he does have difficulty with his right hand and his wife tends to do more driving than she did in the past.
· He continues to mow the lawns and his wife attends to the garden.
· After fishing, he guts and fillets the fish.
The Re-examination of the Plaintiff
39 Under re-examination, the plaintiff gave the following pertinent evidence:
· His right forearm becomes tired if he drives for any long distances – this was never an issue prior to the injury.
· He modifies the way he does things, like putting up an annexe, and he also made a winch to wind up the tinny onto his roof rack whereas he lifted it up before the injury.
· If he plays a lot of golf he does get pain in his hand and forearm from gripping the golf club.
· The right middle finger has a “dead feeling to it”.
· He retired from the first defendant in order to be able to travel for four months, but always “considered the work would be available to me if I ever needed it”.[34]
[34]T113, L2-3
40 After some questions from the Court, Mr Meldrum sought to ask some questions in relation to the golf handicap carried by the plaintiff.
The Medical Treatment of the Plaintiff
41 The plaintiff relies on a medical report from a general practitioner, Dr John F Edmonds, dated 18 December 2009.[35] In that report, Dr Edmonds records that he initially saw the plaintiff on 17 November 2008, when he presented with a crush injury to the middle and index finger of his right hand as a result of jamming the hand between steel blocks at work on 14 November 2008. At that time, clinical examination suggested no bone fracture or tendon injury. The laceration was dressed and he was given an ADT vaccination.
[35]See Exhibit 4 at page 36 PCB
42 He was reviewed on 19 November 2008 and later on 5 December 2008 when there was some persisting swelling of the distal interphalangeal joint of the right index finger and loss of full extension of the joint.
43 X-rays of the right hand indicated undisplaced fractures of the basis of the distal and middle phalanges with no joint involvement.
44 On 12 January 2009, he thought he was having problems with his right ring finger and an inability to clench his fingers. X-rays showed a healing fracture of the shaft of the proximal phalanx of the fifth finger, together with osteoarthritic changes to several of the interphalangeal joints of the right hand. Further x-rays on 19 May 2009 revealed osteoarthritic changes to several of the interphalangeal joints, especially at the 2nd metacarpal phalangeal joint and the 2nd, 3rd, 4th and 5th distal interphalangeal joints. The fractures were well healed with good alignment.
45 Dr Edmonds referred the plaintiff to the rheumatologist, Dr Talib Taher. Dr Edmonds last saw the plaintiff in regard to his right hand on 29 May 2009.
46 In the report dated 18 December 2009, Dr Edmunds states, in part:
“… This man sustained a crush injury to his (R) hand at work on 14th November 2009. He suffered soft tissue contusion and fractures to the distal and middle phalanges of the middle finger and to the proximal phalanx of the 5th finger. (The fractures are well healed and in good alignment). In addition he has osteoarthritis of most of the fingers of his (R) hand.
He continues to have problems fully clenching his (R) hand which is mainly attributed to the osteoarthritis of the fingers.
This is a chronic problem and will not improve. Mr Jolly has been able to return to work with modified duties entailing limited use of he [skil his] (R) hand.”[36]
[36]See Exhibit 4 at page 37 PCB
47 Dr Talib Tahir examined the plaintiff on referral from Dr Edmonds.[37] Dr Tahir confirmed, after examination, that there was obvious difficulty in flexing the right index, middle and ring fingers. Furthermore, he confirmed the presence of osteoarthritis confirmed on x-rays of the right hand.
[37]See report of Dr Tahir dated 1 June 2009 – Exhibit C at page 14 DCB
48 The plaintiff also relies on the following medico-legal examinations:
(a) Examination by the plastic and reconstructive surgeon, Professor Felix C Behan, on 20 September 2010[38] and on 24 September 2012;[39]
(b) Examination by the plastic and reconstructive surgeon, Associate Professor Donald R Marshall on 31 March 2010.[40]
[38]See report of same date – Exhibit 4 at page 38 PCB
[39]See report of same date – Exhibit 4 at page 63 PCB
[40]See Exhibit 5
49 Professor Behan gave evidence and was cross-examined. In particular, he gave evidence that he specialises in plastic and reconstructive surgery with a particular interest in hands. He believed that he has been practising in this specialist area from about 1970. He adopted the two reports in relation to the two aforementioned examinations. Furthermore, he gave evidence that while waiting to come into court, he observed the plaintiff sitting with his hands on his lap. In particular, Mr Behan stated:
A:“The injured hand, the swollen hand, has still got distortion of the veins on the right, I should say, and you cannot see the venous area. But on the non-dominant or non-injured hand, quite dilated. In other words, oedema is still present as of today.
Q:What flows from that?‑‑‑
A:The injury is still ongoing from the point of view of residual discomfort and residual deformity restricting function.”[41]
[41]T24, L18-25
50 At his first examination, Associate Professor Behan obtained a history and made an examination of the injured right hand (also supplying photographs and x-rays of the right hand). In his report dated 20 September 2010, Mr Behan stated, in part:
“1) The patient has sustained fractures of the (R) ring and (R) middle [Professor Behan states in a subsequent report that rather than the middle finger, he was referring to the little finger] fingers with resulting deformity including mallet deformity of the (R) middle finger.
2) The patient is certainly restricted in relation to lifting and fine and manipulative use of his (R) hand. He has experience[d] difficulties in operating equipment and has now retired from work. These restrictions are likely to persist, however their relevance to his industrial capacity will reduce as time goes on.
…
6) The patient has experienced restrictions in relation to his social and recreational activities … .”[42]
[42]See Exhibit 4 at page 44 PCB
51 At his second consultation, Associate Professor Behan again made further examination and in his report dated 24 September 2012, he states, in part:
“The patient has ongoing restriction of function, particularly grip, in his (R) hand (non-dominant side). He is now retired and is only engaged in minimal activity doing volunteer work at his golf club (e.g. mowing using a ride-on mower). Further degeneration of arthritic changes in the hand may lead to surgical stabilisation of the middle finger.”[43]
[43]See Exhibit 4 at page 69 PCB
52 Under cross-examination, Associate Professor Behan gave the following pertinent evidence on being queried as to the basis of his opinion that the plaintiff was experiencing “ongoing pain and discomfort in the right hand”. In the absence of any written note to that effect, Associate Professor Behan stated:
“At a clinical sense one gauges with a patient the degree of severity and - if I can finish. If the degree of severity is such that it warrants a comment it's stated. If there's no severity warranting a comment it is usually not amplified.”[44]
He accepted that the level of pain was not of any great significance.
[44]T26, L20-25
53 He considered, on clinical grounds, there had been a loss of power grip.
54 He was of the opinion that the plaintiff had fatigue, sensation changes and grip strength was down in the right hand.
55 He accepted that there was “evidence of arthritis was filmed consistent with a pre-history of development of arthritis”.[45]
[45]T40, L19-21
56 Although accepting that the x-rays taken on 21 September 2012 did not show any signs of further significant deterioration, the following evidence ensued:
Q:“Now, I just want to ask you, what did you mean though, I think I've got this right, when you said the event - the trauma accelerates arthritis, what do you mean by that?‑‑‑
A:In any surgical predicament in which you've got a potential for arthritic change, the injury and the damage and the surgery or immobilisation usually accelerates any progressive arthritic potential which the patient may have reflected also by his symptoms and poor range of function which I talked about on that first paragraph page.
Q:Just going back if I can follow up on that. Accepting that, notwithstanding the X-rays of 21 September 2012, in the event that - I'm not suggesting this would happen - but in the event this man had X-rays the following years into the future, would you expect further deterioration?‑‑‑
A:I would, without a doubt.
Q:As at least contributed to by the trauma?‑‑‑
A:Accelerated by the trauma.”[46]
[46]T42, L12-28
57 Professor Marshall, whose expertise is in plastic and reconstructive surgery, examined the plaintiff to essentially provide an assessment under the AMA Guides to the evaluation of permanent impairment. Examination revealed that there was restriction of movement and an inability to fully flex the index, middle, ring and little fingers of the injured hand. Furthermore, there was evidence of osteoarthritis of many of the joints of the hands, considerably worse on the injured right hand than on the left hand. There was no evidence of nerve or tendon injury.
58 The defendant had the plaintiff medico-legally examined by the orthopaedic surgeon (specialising in surgery to the hand), Mr Damian Ireland, on 14 September 2011[47] and on 17 October 2012.[48]
[47]See report dated 19 September 2011 – Exhibit C at page 15 DCB
[48]See report of same date – Exhibit C at page 23 DCB
59 At the initial consultation, Mr Ireland recorded the plaintiff complaining of stiffness in the right hand involving all digits, but in particular the middle, ring and little fingers. Furthermore, he complained of stiffness and associated weakness of grip and diminished function of the right hand. At that time he denied any significant pain and since the injury he has had great difficulty playing golf.
60 On direct questioning, the plaintiff denied any history of stiffness or of pain in the right hand prior to the injury. Since the injury, he describes awkwardness and difficulty with most of his normal activities and that his condition had not changed over the last twelve months. He drove his motorcar without difficulty and attended to all normal household chores with difficulty.
61 Examination of the right hand at that time revealed mild Heberden’s nodes affecting the middle, index and ring fingers. There was a mallet deformity affecting the middle finger. The palm was soft and devoid of work stain and work callous. Examination of the left hand revealed a full range of motion of all joints of all five digits and there is no evidence of Heberden’s nodes affecting the distal joints.
62 On reviewing the x-ray dated 13 January 2009, Mr Ireland was of the opinion such radiographs revealed extensive osteoarthritis involving the metacarpophalangeal joints of the index and middle fingers of all proximal interphalangeal joints and most distal interphalangeal joints. There was a mallet fracture deformity affecting the distal joint to the middle finger and there was a healed fracture involving the proximal phalanx of the middle finger that was extraarticular. There was significant osteoarthritis involving the basal thumb joint.
63 Mr Ireland diagnosed diffuse osteoarthritis in most joints of all digits of the right hand exacerbated by traumatic injury. In particular, Mr Ireland stated:
“Although undoubtedly the worker suffered from radiological osteoarthritis prior to the injury, the worker claims he was completely symptom free with regard to the right hand prior to the injury. In the absence of any obvious arthritis affecting the left dominant hand, there is a credible cause-and-effect relationship between the injury and the current symptoms and status of the injured right hand. The work injury has not caused the underlying osteoarthritis. The work injury has exacerbated the symptoms affecting the right hand rendering the right hand prematurely symptomatic and more symptomatic than it otherwise would have been.
… .”[49]
[49]See Exhibit C at page 18 DCB
64 At the second examination, Mr Ireland obtained a history that although the plaintiff did not suffer pain “as such” he did have a “tired feeling”.
65 Mr Ireland did note that the plaintiff presented as “an honest reporter of historical details and showed no tendency to exaggerate his symptoms”.
66 Mr Ireland had available x-rays taken on 21 September 2012 which he considered revealed mild progress of osteoarthritis affecting all of the distal joints of the right hand, including the thumb interphalangeal joint, however, there was no progressive osteoarthritic changes involving the basal thumb joint or the index or middle finger metacarpophalangeal joints. There was mild progression of the osteoarthritis involving all four finger proximal interphalangeal joints.
67 Mr Ireland also was of the opinion that although the plaintiff would have developed symptomatic osteoarthritis in the right hand sooner or later, the injury “significantly accelerated this progress”.
68 Mr Ireland was of the opinion that the plaintiff was incapable of undertaking his previous work as a full operational toolmaker but would have a capacity to return to work as an instructor or, alternatively, returning to light manual work in using both hands but working at his own pace and provided the work did not require him to lift weights in excess of 10 kilograms.
Analysis of the Evidence
69 I find that the plaintiff suffered a right hand crush injury during the course of his employment with the first defendant on 14 November 2008. Furthermore, I find that such injury has caused some permanent impairment with consequences. So much is not disputed by the defendants.
70 The issue between the parties is whether or not the consequences of such impairment satisfies the narrative test – that is to say, whether they can be fairly described as being more than “significant or marked” and as being at least “very considerable”. It is for the plaintiff to satisfy the Court as a matter of probability that such organic consequences satisfy the narrative test.
71 It is perhaps apposite to comment on the evidence of the plaintiff and the medico-legal specialist, Associate Professor F Behan. I found the plaintiff to be an extremely impressive witness who seemingly gave honest and accurate answers to questions put to him. On many occasions, he made admissions against his own interests, and as noted by Mr Ireland (the medico-legal specialist retained by the defendants), he presented “as an honest reporter of historical facts and showed no tendency to exaggerate his symptoms”.
72 Senior Counsel for the defendants, in his closing address, cautioned the Court that the determination of whether or not the plaintiff had suffered a serious injury was not a “beauty contest”. Such submission was perhaps a gentle reminder that notwithstanding the calibre of the witness, it was still necessary for the plaintiff to discharge his onus in relation to the narrative test.
73 Of course, such a submission cannot be gainsaid. However, in the face of such evidence, the finder of fact can more safely accept the evidence of the plaintiff when a particular view is expressed, circumstance described, or complaint made by the plaintiff.
74 I was less impressed with the evidence of Associate Professor Behan, who, on occasion, seemed to form conclusions with no adequate factual or clinical basis. However, it must be borne in mind that Associate Professor Behan is a highly qualified and very experienced expert in the type of injury suffered by the plaintiff. In any event, I ultimately formed the view that the essential opinions (save for ongoing oedema in the right hand) expressed by Associate Professor Behan were similar to those expressed by Mr Ireland.
75 I make the following relevant findings of fact:
(a) The plaintiff is probably best described as ambidextrous, although he nominated his left arm as the dominant arm. He gave evidence that he uses his right arm for a variety of activities;
(b) After leaving school, the plaintiff completed an apprenticeship as a fitter and turner and has worked as a toolmaker throughout his working life. I accept that he would be very skilled in the area in which he works and very experienced in the area that he works;
(c) Prior to the injury, the plaintiff suffered no symptoms in his right hand and had full and free use of such right hand to perform work, recreational and domestic activities;
(d) That as a result of crushing his right hand, he suffered two fractures involving his right little finger and two fractures in his right middle finger;
(e) Although he had asymptomatic signs of osteoarthritis in the right hand prior to the injury, the injury has significantly accelerated the onset of osteoarthritis in the right hand. As a result, he has restricted motion of all the small joints of the four fingers of the right hand, which causes diminished grip strength and diminished function of the hand;
(f) As a result of the injury, he is incapable of performing all duties as a toolmaker and in particular, activities which involve any lifting with the right hand, the constant use of the right hand or fine manipulative activities involving the right hand. He would be capable of supervisory duties much as he performed with the first defendant prior to his retirement;
(g) The plaintiff retired from his employment with the first defendant at age sixty-five in order that he could travel around Australia for some time each year with his wife. I do find that it was his clear intention to continue working as a toolmaker on and off over the years after his retirement. In this respect, I formed the view that the plaintiff enjoyed working as a toolmaker and, as stated earlier, has great expertise as a toolmaker, and enjoyed the company of others when working. Furthermore, other than general supervisory work, I find that the plaintiff would be incapable of pursuing any type of hands-on tool work and, accordingly, has lost the ability to seek that type of ongoing work.
In particular, I formed the view that the evidence of Mr Frank Reder, and even that of Mr McDonald, does establish that there would have been work – most probably “hands-on work” – available to the plaintiff absent his right hand injury. Although it is clear on the evidence that the plaintiff rejected the offer of work by Mr McDonald, I accept the plaintiff’s explanation as to why that occurred;[50]
[50]See T13, L6-13
(h) As a result of his right hand injury, the plaintiff experiences a degree of discomfort in the right hand area which can increase if the right hand is used in any excessive way (for example driving a long time). In general, I gained the impression that many activities of daily living, recreational activities and domestic activities were affected by the right hand injury, not to the extent that such activities were necessarily lost, but many activities had to be modified or performed in a different way as a result of the right hand injury.
In particular, although I accept that the plaintiff initially found it very difficult using golf clubs, he has accommodated this to some extent and seemingly is playing the same amount of golf, if not more, than prior to the injury. Although there have been fluctuations in his golf handicap, I make no finding that his golf handicap has been directly affected in the long-term as a result of the right hand injury. However, various domestic activities, even extending to the trite – carrying pots of beer – have been affected by his lack of strength and dexterity in his right hand. Such things as his concern of being in a boat by himself with an inability to bring the anchor in, threading fishhooks, performing domestic duties, have all been affected but perhaps, not in a dramatic way. For example, I gained the impression that the plaintiff still continues to fish in boats owned by others and persists with using a right-hand wheel, notwithstanding his right hand injury.
76 Senior Counsel for the plaintiff put the case for his client on essentially two bases:
(a) The plaintiff had lost the ability to perform “hands-on” tool work after his retirement and that there was no good reason why I should reject his evidence in relation to that; and:
(b) The right hand injury has caused an acceleration of osteoarthritis in the right hand and this is made patently clear when one compares the right hand to the left hand.
Senior Counsel for the plaintiff submitted that although there are other difficulties which have resulted from the right hand injury, each of those do not amount to a very considerable consequence. However, taking the two major losses, and indeed the smaller consequences, such consequences amount to a “serious injury”.
77 I should add that the plaintiff gave evidence that in very recent times, he has had difficulties sleeping and awakes with some degree of pain and has also attended a physiotherapist. These consequences seem to be more likely related to a fall down a river affecting his right shoulder rather than the effects of the right hand injury. I do not take those aspects into account when assessing whether or not the plaintiff has discharged his onus in relation to the narrative test.
Conclusion
78 Given the age of the plaintiff, I consider that this case is a borderline matter. However, after a consideration of all of the evidence, I am persuaded that the plaintiff has satisfied the narrative test. In particular, I accept the submissions made by Senior Counsel for the plaintiff where emphasis was put on two particular matters, the now inability of the plaintiff to pursue hands-on tool work, as he intended after his retirement, and the advent of osteoarthritis in his right hand. Of course, to this must be added the other consequences, which taken individually are not serious consequences, but ultimately add to the overall presentation of the plaintiff.
79 Accordingly, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect to a right hand injury suffered by him on 14 November 2008.
80 I will hear the parties on the issue of costs.
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