Joyce v Goldstream Recreational Vehicles Pty Ltd
[2013] VCC 1841
•28 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-04784
| RYAN PETER JOYCE | Plaintiff |
| v | |
| GOLDSTREAM RECREATIONAL VEHICLES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 October 2013 | |
DATE OF JUDGMENT: | 28 November 2013 | |
CASE MAY BE CITED AS: | Joyce v Goldstream Recreational Vehicles Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1841 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to left thumb – pain and suffering – consequences of injury
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(38)(c)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Garnham | Slater & Gordon Ltd |
| For the Defendant | Mr B R McKenzie | Herbert Geer |
HIS HONOUR:
1 The plaintiff alleges that he injured his left thumb in the course of his employment with the defendant on 2 February 2009. He seeks the leave of this Court to issue proceedings to recover pain and suffering damages in respect of that injury.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as:
“(a)permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is that of the plaintiff’s non-dominant left hand.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs 18 and 19
6 The impairment or loss of a body function shall not be held to be “serious” for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[3]
[3]Section 134AB(38)(b) and (c)
7 The plaintiff submits that the pain and suffering consequences of his injury can fairly be described as being at least very considerable. The defendant denies this is so.
Background
8 The plaintiff was born in 1984 and is aged twenty-nine years. He left secondary school halfway through Year 10 and thereafter worked in a number of unskilled jobs. These jobs included acting as a factory hand for a few months at Garfield Abattoirs, and a number of other casual jobs. He also helped his father harvesting potatoes.
9 The plaintiff commenced employment with the defendant on 22 January 2009 as a labourer. The defendant was engaged in the business of manufacturing caravans.
10 On 2 February 2009, the plaintiff was injured in the course of his employment with the defendant when an electric drill he was operating jerked and cut his thumb and hand region.
11 After the accident, he was taken to the Dandenong Hospital, where his left hand was subjected to an operation and he was an inpatient there for four days. The operation involved debridement and repair of the extensor tendon complex/extensor pollicis brevis, as well as a repair of a branch of the superficial radial nerve and repair of the fascia of the abductor pollicis brevis and opponens pollicis muscles. Distally the nail bed was repaired and the nail plate removed and replaced.[4]
[4]Exhibit 4: Mr Felix Behan, Defendant’s Court Book (“DCB”) 3
12 After discharge, he was followed up in outpatients, and hand therapy continued for approximately six months. He returned to work in April 2009 on modified duties. Thereafter, he was retrenched on 13 May 2009.
13 Thereafter, he worked with his brother for a while in constructing manholes, had a period of unemployment and also carried out floor tiling work.[5]
[5]Exhibit C: Plaintiff’s affidavit sworn 5 June 2012, at paragraph 12
14 As at June 2012, he was working for a Mr Crimmins as an apprentice floor tiler. He was provided work on an “as needs” basis until Christmas 2012. Thereafter, there was no further work available and the plaintiff was living in Mildura.
15 At the time of hearing, the plaintiff was performing a community-based order which was substituted for a number of outstanding fines including two thefts, and a number of traffic offences. The community-based order is for a period of six months from 8.30am until 4.30pm five days a week and concludes some time later this year.[6]
[6]Transcript (“T”) 21, L21-31
16 In the meantime, the plaintiff has acquired virtually all the tools and equipment he will need for his own tiling business[7] and has been taught aspects of bookkeeping including taxation responsibility by Mr Crimmins.[8]
[7]T21, L14-19
[8]T52, L14-18
17 Further, the plaintiff, in cross-examination, has agreed that his workmanship is of a high standard,[9] albeit a little slower than other practitioners.[10] In particular, he is slowed down by the need to hold tiles in position whilst performing wall tiling work. He says he has adapted a strategy to overcome this disability by extra use of the four fingers on his non-dominant left hand.[11]
[9]T23, L21 – T24, L22
[10]T51, L18-20
[11]T51, L21-30
18 In addition, the defendant tendered video surveillance taken on 15 October 2013 of the plaintiff washing his car between 10.22am and 10.58am. In that video, he is seen to be carrying a white bowl full of water in his left hand with the thumb placed on the inside of the bowl and performing a pincer movement with the other four fingers of his hand. Further, he is seen to be carrying a large garden hose in his left hand whilst the right hand is completely free. He is also using both hands to operate a power hose and operating the handle part with his left hand.[12]
[12]Exhibit 1
The medical evidence
19 The plaintiff had been treated by general practitioner, Dr Peter Li, both before and after the injury. On 23 March 2009, he has a consultation note following the surgical repair as follows:
“Limited thumb movement – sore.”
20 He is then followed up with respect to the injury on 28 May, 6 July and 15 July 2009. Thereafter, there are a number of attendances upon this practitioner for various conditions but none to do with his left hand injury until the final attendance on 24 May 2012.
21 There is then a gap in the clinical record until the plaintiff commences to attend a general practitioner in Mildura, Dr Bhat. The plaintiff gave evidence that he may have attended his partner’s general practitioner in the intervening period but there is no evidence from any such practitioner.
22 In any event, on 30 July 2013, the plaintiff first attended Dr Bhat complaining about an injury to his left ankle following a fall at home. There is then another attendance on 10 September 2013 but with conditions unrelated to the subject injury. There are similar attendances on 11 September 2013, 13 September 2013 and 4 October 2013.
23 On 16 October 2013, Dr Bhat has a note that the plaintiff is undergoing:
“… correctional service for driving offences; has a history of Chrone’s (sic) disease, and also has H/O tendon injuries to the left thumb with consequent loss of function; wants a letter of support to avoid doing labour which he cannot do.”
24 On 17 October 2013, the plaintiff again attends Dr Bhat, who has the following entry:
“Is doing community service for driving offence; has Chrone’s (sic) disease with frequent exacerbation (as per the records); also has left thumb tendon injury which was repaired (records yet to come); wants a letter of support suggesting lighter duties as he requires access to toilets regularly and physical labour sometimes triggers it off.”
25 As a consequence, Dr Bhat wrote a letter in support as follows:
“He was diagnosed with Chrone’s (sic) disease which is an inflammatory bowel disease and causes frequent exacerbations sometimes requiring hospital admission. He requires easy access to toilets at all times and it is also advisable for him to be doing light duties involving not lifting weights above 10 kilograms and rest periods of ten minutes after every one hour of work.”[13]
[13]Exhibit A
26 Following discharge from hospital, the plaintiff was treated by a hand therapy specialist known as “Resolve Hand Therapy Specialist”. He attended his first appointment on 2 March 2009. Hand therapy specialist, Ms Zoe Milner, reported to the plaintiff’s solicitors on 2 October 2009.[14] Of note in the report is the following:
[14]Exhibit F
(a)The plaintiff had achieved significant improvements in his range of motion throughout the hand therapy treatment, although he reported some functional limitations due to reduced end range of movement.
(b)The plaintiff’s grip strength is marginally stronger in his right hand. For his age, the plaintiff’s grip strength in his left hand is at the lower end of average range, as is the grip strength in his right hand.
(c)The plaintiff’s pinch strength is slightly stronger on the right side; however, this was said to be consistent with him being right hand dominant.
(d)During the assessment, the plaintiff reported pain at rest to be 1 out of 10 and identified pain first thing in the morning to be 3 out of 10. He reported pain of 5 out of 10 when carrying some items and also some “cold intolerance” which caused him 8 out of 10 pain.
(e)As to functional status, the plaintiff had returned to completing all aspects of personal care independently. He could also independently complete light domestic activities and reported being at pre-injury level. He also reported that the majority of domestic tasks at home were completed by his mother.
(f)As to his work status, he reported returning to work approximately three months following injury but had difficulty holding items. He had completed some short bursts of bricklaying type work at that stage.
(g)The plaintiff had returned to driving his motor vehicle but reported he had not returned to playing football or riding motorbikes, as he did not feel confident in that hand function.
(h)In summary, his left thumb had resulted in a reduction in the end range of movement of the thumb but such restriction was not preventing the plaintiff from completing personal or domestic daily activities.
(i)The plaintiff described pain increasing with carrying some items, as well as a cold intolerance. He also continued to experience reduced sensation over and around the scar.
27 The plaintiff was seen for medico-legal purposes at the request of the defendant by Associate Professor Felix Behan on 12 August 2013.[15] Apart from taking a relevant history, he noted as follows:
[15]Exhibit 4
“Clinical aspects:
·He is disturbed by the functional restrictions he experiences in relation to the left thumb including superficial sensory loss distal to the scar. Pulp sensation however is intact. The range of movement is restricted and I note that the thumb constitutes 40 per cent of hand function. Opposition and extension are both restricted and as a result power to grip is also diminished.
·He experiences problems with cramping in relation to manual work activity, particularly in cold weather.
Domestic aspects:
·He does have some difficulty in using household machinery such as a lawn mower, where the vibration causes the left hand to spasm.
Industrial aspects:
·He is now completing his apprenticeship as a tiler handling tiles up to 60 cm2 and he finds that his left hand is awkward in this work, impairing the stability of his grip and dexterity in handling these units.
Social aspects:
·He is somewhat limited in his ability to carry on his long term hobby of restoring old cars.”
28 Apart from the functional restrictions, the plaintiff advised him that the restricted activity of his left hand was affecting his new line of work in which he was laying large ceramic tiles up to 60 centimetres square in size.
“Delicate precision is an important aspect of this work activity as well as safety requirement, both in handling the tiles and for himself.”
29 This is to be contrasted with the plaintiff’s evidence under cross-examination where he attested to his opinion, and that of Mr Crimmins, as to the high quality of his work.[16] In any event, Mr Behan considered there were no indications for further treatment and he thought overall, the plaintiff would have a 20 per cent disability from an industrial loss point of view.
[16]T23, L21 – T24, L22
30 The plaintiff was also seen for medico-legal purposes at the request of his own solicitors by Mr Murray Stapleton on 23 September 2013.[17] Apart from taking a relevant history of the injury, he notes the plaintiff is numb on the outer aspect of his left thumb and has a reduced range of movement. He states:
“He cannot lift the thumb up from the palm which is the movement of thumb opposition. He has difficulty stretching the thumb out from his palm which is a movement described as radial abduction, nor can he move the thumb across the palm beyond the base of the middle finger which is a movement described as palmer adduction. … His pinch grip is diminished. He has partial longitudinal sensory loss of the distal 3 cm of the radial side of his left thumb.”
[17]Exhibit H
31 It is noted that his hobbies are rebuilding cars and gardening. Mr Stapleton notes that the plaintiff’s capacity to return to work with heavy manual labour is diminished and his manual dexterity is very much reduced because of the accident. In essence, his opinion is:
“Any activity which is offered to him which is genuinely discomforting for him would suggest that the matter would need to be revisited.”
32 In conclusion, he considered there was no increased risk of developing arthritis and he considered that the injury should not deteriorate. No surgery would help him and there was no need of any further assessment.
Consequences
33 In his first affidavit, the plaintiff attests as follows:[18]
[18]Exhibit C
·Decreased range of movement of left thumb[19]
·Finer movements such as doing up buttons and holding small objects and nails more difficult[20]
·Less grip strength[21]
·Numbness and pins and needles sensation down the left side of thumb[22]
·Left thumb particularly painful when knocked and more painful in cooler weather[23]
·Floor tiling more difficult[24]
·Noted difficulties interacting with his young daughter[25]
·Noted difficulties in recreational pursuits such as football and working on old cars.[26]
[19]PCB 13
[20]PCB 13
[21]PCB 13
[22]PCB 13
[23]PCB 13
[24]PCB 14
[25]PCB 15
[26]PCB 15
34 In his second affidavit, the plaintiff attests as follows:[27]
[27]Exhibit C
·Difficulties playing the guitar really relates to playing a computer game[28]
·Difficulties in carrying out floor tiling work[29]
·Will sometimes wear gloves to try and protect the left thumb[30]
·Limitation on helping his fiancée work on car engines to 45 minutes, after which time he may take a Panadol[31]
·Reiterated decreased range of movement and difficulties in finer movements[32]
·Noted difficulties in playing football and other ball games.[33]
[28]PCB 18
[29]PCB 18
[30]PCB 18
[31]PCB 18
[32]PCB 18-19
[33]PCB 19
Evaluating the pain and suffering consequences
35 The template for assessing an injury such as the present is succinctly set out by the Court of Appeal in Aburrow v Network Personnel Pty Ltd,[34] as follows:
[34][2013] VSCA 46 (‘Aburrow’), at paragraphs 10 and 11
“As Maxwell P suggested in Haden Engineering Pty Ltd v McKinnon,[35] it is of assistance in reviewing a body of evidence like this — for the purpose of evaluating the ‘pain and suffering consequence’ of an injury — to distinguish between:
• the plaintiff’s experience of pain as such; and
• the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.
These are not, of course, rigidly separated categories. For example, evidence about the disabling effect of the pain may enable inferences to be drawn about the intensity and frequency of the pain, and vice versa.[36] But the distinction remains important for the purposes of the pain and suffering assessment, as this appeal shows.
[35](2010) 31 VR 1 (‘Haden’)
[36]See, eg, Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12, at paragraphs 46-47
The experience of pain as such
We deal first with Mr Aburrow’s experience of pain as such. The approach suggested in Haden, and subsequently endorsed in Sutton v Laminex Group Pty Ltd,[37] was as follows:
[37](2011) 31 VR 100 (‘Sutton’)
‘The experience of pain
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
…
As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.’”[38]
[38]Haden at paragraphs 46-48
36 The plaintiff in this case has had a chequered history with the law and ongoing health issues. However, at least in his viva voce evidence before the Court, I found him to be honest and straightforward and, in my view, would qualify for the adjective ‘stoical’ as used in the various authorities. However, little was said about the intensity and frequency of his pain. As their Honours stated in Aburrow:[39]
“Plainly enough, a statement that a person ‘suffers pain’ says nothing about the intensity of the pain. Nor, by itself, does a statement that the pain ‘is worse’ under particular conditions.”
[39]Aburrow at paragraph 12
37 Further, the evidence contained in the two affidavits can also be contrasted with that given by the plaintiff in Haden to the effect that, in the latter:
“• he experienced constant pain;
• the pain was with him when he woke up in the morning, and got progressively worse during the day;
• his pain interfered with his work and obliged him to rest, for up to five to 10 minutes, four to five times a day; and
• the pain interfered with his sleep, such that he would often ‘wake up to three to five times during the night because of pain’.”[40]
[40]Haden at paragraph 34
38 Clearly, the plaintiff in this case has not suffered the intensity or frequency as indicated here and particularly, as defence counsel points out, interference with sleep.
39 Further, the medical evidence referred to above, in my view, does not diminish the evidence of the plaintiff as to the skills he retained with respect to tiling.
40 As Maxwell P and Tate JA stated in Aburrow:[41]
[41]At paragraphs 19-20
“The disabling effect of the pain:
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (Ashley JA) said in Dwyer v Calco Pty Ltd (No 2):[42]
[42][2008] VSCA 260
‘[I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’[43]
[43]at paragraph 27
As suggested in Haden (and endorsed in Sutton),[44] the disabling effect of the pain is to be assessed by considering the impact of the pain on the worker’s capacity for work and the degree to which it interferes with the ordinary activities of life, as follows:
[44]at paragraphs 49-50
‘As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed ha[s] been closed off to [him or her]’.”
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.’”[45]
[45]Haden at paragraphs 15-16
41 In this matter, there is no evidence as to interference with sleep or capacity for self care and self management other than difficulty with buttons. Further, the performance of household and family duties are not significantly affected. As to social activities such as the playing of football, I am not advised as to how often the plaintiff played football prior to the injury or as to whether there has been a reduction in this activity after the injury. Clearly, the plaintiff’s ability to engage in a new apprenticeship of tiling, which he hopes to complete in the near future, is to his credit and is an example of abilities that have been retained.
Findings
42 I am satisfied in this matter that the plaintiff has suffered a compensable injury which has resulted in a permanent impairment of the left hand to the extent of 20 per cent for industrial use.[46] The only issue in this case is whether the plaintiff has established pain and suffering consequences which, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked and as being at least very considerable. I am satisfied that the plaintiff is in need of no ongoing analgesia and has only been in need of occasional Panadol when working on his car. He has returned to work as a tiler and is apparently able to perform to a satisfactory standard to engage in the open workforce.
[46]Associate Professor Felix Behan, Exhibit 4
43 In all the circumstances, I am unable to find that the plaintiff has discharged the onus of proof with respect to the statutory threshold. The application must therefore be dismissed.
44 I will hear the parties as to consequential orders.
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