Kasiano v Victorian Garden Cottages Pty Ltd (in Liquidation)
[2017] VCC 277
•23 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03725
| FAAPITO KASIANO | Plaintiff |
| v | |
| VICTORIAN GARDEN COTTAGES PTY LTD (IN LQUIDATION) | Defendant |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 9 March 2017 | |
DATE OF JUDGMENT: | 23 March 2017 | |
CASE MAY BE CITED AS: | Kasiano v Victorian Garden Cottages Pty Ltd (in Liquidation) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 277 | |
REASONS FOR JUDGMENT
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Subject:Application Pursuant to s134AB for leave to bring proceedings for damages for pain and suffering consequences of impairment to left (non-dominant) hand
Catchwords:
Legislation Cited: Accident Compensation Act 1985
Cases Cited:
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Lean | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr J Batten | Russell Kenney |
HER HONOUR:
1 Mr Faapito Kasiano (“the plaintiff”) applies pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) for leave to commence proceedings to recover damages for pain and suffering relating to an injury to his left hand, which is his non-dominant hand.
2 It is not in dispute that, on 17 June 2008, whilst the plaintiff was working for the defendant as an apprentice carpenter, he was using a circular saw in his right hand to cut a piece of timber, which he was holding in place using his left hand and left foot. The saw caught in the timber and “kicked back” causing the blade of the saw to make contact with and lacerate the dorsal side of the index, middle and ring fingers of his left hand (“the incident”).
3 The plaintiff alleges that the injuries suffered in the incident have given rise to a permanent impairment which satisfies paragraph (a) of the definition of serious injury in s134AB(37) of the Act. Alternatively, the plaintiff alleges that he has suffered a permanent serious disfigurement by way of deformity and scarring to the fingers which satisfies paragraph (b) of the definition. The plaintiff contends that the impairment and/or the disfigurement has pain and suffering consequences which are serious.
Issues between the parties
4 The defendant disputes that the osteoarthritic condition of the distal interphalangeal joint of the plaintiff’s left ring finger, which medical evidence suggests will require a surgical fusion in the foreseeable future, arises out of or results from the injury on 17 June 2008. In addition, the defendant disputes that the pain and suffering consequences of any impairment or disfigurement to the plaintiff’s left hand meet the test of serious injury as set out in s134AB(38)(c) of the Act. That test is whether the impairment or loss of function or disfigurement of the plaintiff’s left hand is, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as being more than significant or marked, and as being at least very considerable. The defendant also disputes that any scarring and disfigurement can satisfy that same test of serious injury.
Background
5 The plaintiff is aged forty-seven years, having been born on 21 February 1970. He was born in Samoa and came to Australia in 1997. He initially lived in Sydney, where he worked as a forklift driver and performing other warehouse jobs for a number of years. In 2006 he moved to Melbourne and undertook a pre-apprentice carpentry course for 17 weeks and then commenced work as an apprentice carpenter with the defendant in October 2007.
6 As previously stated, in the incident on 17 June 2008, the blade of the saw made contact with the plaintiff’s index, middle and ring fingers of his left hand. His hand became lodged between the guard and the saw blade and there was a lot of blood.[1] The site foreman, Graham Dixon, found the plaintiff “collapsed over an old barbeque with his left hand fingers jambed (sic) on his circular saw.”[2] Mr Dixon put a towel around the plaintiff’s left hand and drove him to Maroondah Hospital. On presentation at the Emergency Department he was found to have lacerations to all three fingers. The index finger was described as having minor cuts proximal to the distal interphalangeal joint. The plaintiff said it had cuts and was bruised and was just patched up.[3] The lacerations to the middle and ring fingers were more substantial and required surgery. The middle finger had a deep laceration of approximately 2 centimetres which required debridement, washing out of the wound, sutures and dressing. The ring finger had a moderately severe nail injury with nail bed loss. The laceration was debrided and the wound was washed out. The nail plate was removed and the nail bed was repaired and sutured and dressed.[4]
[1]Plaintiff’s affidavit sworn on 25 February 2014 (“the plaintiff’s first affidavit”) paragraphs 10 and 11, Plaintiff’s Court Book (“PCB”) 16
[2]Incident Investigation Report PCB 27
[3]Transcript (“T”) 28
[4]Operation report PCB 39B
7 The plaintiff was released home on the same day after the surgical procedure, with a prescription of Panadeine Forte and Maxolon. The plaintiff believes that he was off work for a couple of months on sick leave and unpaid leave, however, a certificate from a medical practitioner at Maroondah Hospital dated 14 July 2008 clears the plaintiff for normal duties from 16 July 2008.[5] Indeed, the outpatient progress notes of the same date appear to note that the plaintiff had trade school that week but didn’t want to go the next day, although he was happy for normal duties, and that there was only a need for him to be seen as required.[6]
[5]Defendant’s Court Book (“DCB”) 42
[6]DCB 43
8 After the plaintiff returned to work following the injury, he believed that he was supposed to be on light duties but said that he was required to do normal duties. His evidence is that the work was still quite heavy, such as carrying heavy pieces of wood, and it was difficult for him as there was always pain in his fingers, sometimes he would drop things unexpectedly and he could not work as fast as everyone else. He found the job very difficult but persevered until the company went into liquidation on 19 June 2012.[7] Under cross-examination, he stated that he felt pressured to do normal duties because the company had not wanted to employ him in the first place because he was too old to be an apprentice and he felt obligated to perform and make a good impression because otherwise he would lose his apprenticeship and would not be able to find an apprenticeship anywhere else because of his age.[8]
[7]Paragraph 12 of the plaintiff’s first affidavit, PCB 16
[8]T30-31
9 After work ceased to be available with the defendant, the plaintiff was unemployed for approximately five months. His evidence is that he “tried to find another job as a carpenter, (he) was not successful due to (his) restricted experience”[9] and “nobody opened the door”.[10] The plaintiff stated that he “started a course which (would) enable (him) to be a project manager so (he) can start (his) own carpentry business.”[11] Under cross-examination, the plaintiff stated that the course was not in order to qualify as a project manager, but was a Certificate 4 in Building. It was run by a private company and went for a couple of months, but he gave it up very close to the end because he did not have “the passion” or have the confidence that it would take him to where he wanted to go.[12] In the plaintiff’s second affidavit he stated “on some level I also knew that I was going to have difficulty doing carpentry work in the long term. I therefore started looking for less physically demanding jobs. For this reason, I also did not continue with Certificate 4 in Carpentry, as I did not think it would help me in the end anyway.[13]
[9]Paragraph 3 of the plaintiff’s affidavit sworn on 7 February 2017 (“the plaintiff’s second affidavit”) PCB 19
[10]T32
[11]Paragraph 13 of the plaintiff’s first affidavit PCB 17
[12]T33
[13]Paragraph 3 of the plaintiff’s second affidavit PCB 19 – 20
10 In May 2013 the plaintiff began a job with Jati Furniture (“Jati”). Jati imports indoor and outdoor furniture. His job involves repairing broken furniture which customers deliver back to the factory at Brunswick. He repairs mainly chairs and footrests, but there can be tables and other items. He also drives a forklift and claims that, when there is any item over 15 or 20 kilograms, he gets other people to help him lift it because he cannot lift it on his own. Some of the Jati tables are big and cumbersome, but most of his repair jobs are very light, such as a chair or footrest or coffee table.[14]
[14]T35 – T37
11 The plaintiff’s evidence was that he continues to work full time for Jati in its furniture warehouse at Brunswick and his role is much less physically demanding than the job he had with the defendant because it does not involve heavy work like carpentry, he does not need to use power tools very often, he mostly repairs small things and drives a forklift. He does not need to do a lot of heavy lifting and, if he does, it is usually with someone else and his employer is aware of and understanding about his injury and there is not as much pressure to work quickly as there with the defendant.[15]
[15]Paragraph 4 of the plaintiff second affidavit, PCB 20
12 The plaintiff has a large family to support. He has a total of 10 children from two different relationships and his eleventh child is due to be born next month. His children range in age from three to twenty-two years and, of those, eight are still at school and totally dependent upon him. He states that he is earning “much less” in his current job than when he worked as a carpenter and tries to pick up weekend work doing maintenance tasks, which are simple and small and which other tradespeople do not wish to do.[16] Under cross-examination, the plaintiff stated that in his work at Jati he has to do some-deliveries of repaired furniture and he drives a 3.2 tonne van for this purpose, but another worker accompanies him for deliveries. On weekends he has the use of that van for his private maintenance work.[17]
[16]Paragraph 7 of the plaintiff’s second affidavit, PCB 21
[17]T34
Treatment
13 After the plaintiff was reviewed at the Outpatient Clinic at Maroondah Hospital on 14 July 2008, he did not see a doctor in relation to his left hand injury, at all, until over six years later. It appears that on or about 16 October 2014, he attended a doctor at Roxburgh Park Superclinic in relation to a swelling or lump located on the palm side of the middle joint of his left middle finger and a deformity of the distal interphalangeal joint of his left ring finger. An ultrasound on 20 October 2014 identified a 13 millimetre solid non-vascular soft tissue subcutaneous mass consistent with a giant cell tumour of the tendon sheath. He was referred by a doctor at the Roxburgh Park Superclinic to Dr Seneviratne, a cosmetic and reconstructive surgeon. She organised an MRI scan which demonstrated a cystic lesion, which was thought to be a tendon sheath ganglion on the left middle finger, as well as severe osteoarthritic changes in the distal interphalangeal joint of the ring finger. (The latter was a finding which had been reported on the medical imaging of the left hand taken on the date of the incident back on 17 June 2008.[18]) Dr Seneviratne performed surgery to the plaintiff’s left middle finger on 16 December 2015. She described excising a ganglion from the finger, however, histopathology demonstrated that what had been removed was a ruptured epidermal cyst. She noted, when she saw the plaintiff post-operatively on 3 February 2016, that his progress was good with normal hand function and no evidence of recurrence of the cyst. She had discussed with the plaintiff back in September 2015 having a fusion of the distal interphalangeal joint of his left ring finger to address the pain and, when she last saw him in February 2016, she noted that he was considering such surgery to address the pain at a later stage.[19]
[18]PCB 35
[19]PCB 44
14 Since the procedure on the cyst performed by Dr Seneviratne on 16 December 2015, the plaintiff has not seen any doctors for treatment. In his second affidavit, he stated that, as suggested fusion to his left ring finger would leave his finger permanently straight, he is nervous. He stated “I am not ruling out this option, but I don’t plan to have it in the near future.”[20]
[20]Paragraph 10 of the plaintiff’s second affidavit PCB [?]
15 The plaintiff states that, at the present time, he has ongoing pain in the three middle fingers of his left hand, even at rest. The pain increases with activity and travels down to his left wrist. He has pins and needles in his left arm and fingers, and patches of numbness. He has increased pain in the cold weather, a cramping sensation in his fingers and hand and pain in his left arm, including his elbow and forearm, as he tries to rely more upon other parts of his arm as opposed to his fingers. He states that he tries to manage his pain with regular exercises, self-massage and over-the-counter pain killers “several times per week”.[21]
[21]Paragraphs 12 and 13 of the plaintiff’s second affidavit PCB 22
16 Under cross-examination, the plaintiff confirmed that he had not had any prescribed medication since 2008, and he takes Panadol and Nurofen for his pain. He stated that his left hand grip is weaker than it used to be. The index finger is not as painful as the other fingers. His middle finger is in constant pain, even when resting. He stated initially that his ring finger has pins and needles all the time, however, then said the pain “comes and goes”. He said he suffers soreness which travels to his wrist and to his elbow. He gets pain in his whole arm, especially the wrist and down to the tip of his fingers and sometimes cannot feel when things touch the tip of his fingers.[22]
[22]T57 – 59, 62 and 71-72
17 The plaintiff’s evidence is that the pain in his three fingers goes up to his elbow because he is using his wrist more to lift things because of the lack of dexterity of his left hand, particularly reduced grip strength. This has meant that he is unable to pursue his “dream career” as a carpenter, which makes him “really upset”. [23] His current work is “not (as) rewarding or satisfying as a carpenter” [24] In addition, he is upset that he cannot play his guitar because it is too hard for him to hold the strings down on the frets with the fingers of his left hand, and this is something that he used to do every day prior to being injured. Further, he used to play piano and used to teach his children to play. However, he is more limited in his ability to do this because of restriction in stretching his left hand to play chords. Further, in his affidavits, he stated that he had played rugby since he was a child and is no longer able to do so because of his left hand injury and pain. In addition, he states that he has stopped going to the gym because it was aggravating his left hand and arm pain and he has difficulty carrying his children with his left arm/hand and playing and catching balls with them. He has difficulty playing sports with his children, and also using the lawn mower and driving for long distances. He also finds that sleeping on his left side can make his hand cramp.[25]
[23]Paragraph 5 of the plaintiff’s second affidavit PCB 20
[24]T63
[25]Paragraphs 19 – 20 of the plaintiff’s second affidavit PCB 23 – 24
18 The plaintiff also states that he is very embarrassed about the appearance of his left hand. He tries to keep his left hand in his pocket or out of sight. This is because of the scars and his left ring finger being crooked, with a lump on it. This stops him wearing a wedding ring and the finger nail has grown back differently and looks strange.[26]
[26]Paragraphs 21 – 22 of the plaintiff’s second affidavit PCB 24
The appearance of the Plaintiff’s left hand
19 In the course of the hearing, I viewed the plaintiff’s left hand. The scarring on the fingers is so fine that I needed the plaintiff to point it out to me. On the index finger there were a couple of very fine scars towards the middle interphalangeal joint and then a zigzag of a scar across the digit, but falling short of the actual nail. On the middle finger, between the distal and middle interphalangeal joints was a scar like an inverted tick and then another scar which went around the finger on the ring side and onto the palm side of the hand. The latter scar is apparently a result of the surgical excision of the cyst. On the ring finger was a scar which crossed the distal interphalangeal joint from the middle finger side up to the nail bed and a portion of the nail was missing.[27] The nail of the ring finger appeared to be growing at a slight angle to one side and a small part of it was uneven, as though a piece was missing. In addition, there was a noticeable lump on the distal interphalangeal joint and the tip of the ring finger was deviated towards the middle finger.
[27]I note that there appeared to be a partial loss of the nail of the index finger as though it had been torn down to the quick. However, there is no evidence that this nail bed was impacted upon by the accident in question and I note that photographs taken by Mr Behan, plastic and hand surgeon, on 23 January 2017, depict the index finger with what appears to be a fully grown nail on it. PCB 74, 76-80
20 The scars are very fine and have healed very well. As previously mentioned, they are not really apparent unless they are pointed out to the viewer. Indeed, Mr Behen described the scars as “barely discernible”.[28] Primarily, the application under paragraph (b) of the definition of “serious injury” relied upon the enlargement or lump on the distal interphalangeal joint and the deformity of that finger towards the plaintiff’s middle finger.
[28]PCB 63
21 I accept that the plaintiff is embarrassed about the appearance of his hands. I am also conscious that the assessment of disfigurement is clearly a subjective one. However, the lump and deformity of the top joint and tip of his left ring finger, when judged by comparison with other cases in the range of possible disfigurements, in my view, cannot be fairly described as being more than significant or marked and as being at least very considerable. Accordingly, I am not satisfied that the plaintiff has discharged the onus of proof insofar as he relies upon paragraph (b) of the definition of “serious injury”.
Medical evidence
22 The plaintiff was treated in the public hospital system for the surgery on 17 June 2008, with limited post-operative review in the Outpatient Department, to which I have previously referred. He has not been seen by a general practitioner for treatment, except for referral to Dr Seneviratne for removal of the cyst from his left middle finger on 16 December 2015. With the exception of Dr Seneviratne’s reports, all reports are of a medico-legal nature, requested by either the defendant or the plaintiff. I shall deal with those reports in chronological order.
(i) Mr Anstee
23 Mr Anstee, plastic and reconstructive surgeon, saw the plaintiff on behalf of the defendant on 4 December 2013. It would appear that Mr Anstee’s focus was to conduct an evaluation to see whether the plaintiff had a permanent impairment of his hand pursuant to s98 of the Act. Any actual percentage of impairment which might be found under that section is irrelevant for the purposes of this application. However, Mr Anstee did find that the range of movement of the index, middle and ring fingers was reduced in relation to flexion and extension and that the plaintiff had decreased sensation over the palmar surface of each finger. He considered that these problems arose from the incident and the injury would not resolve, and that the plaintiff had suffered a permanent impairment of his non-dominant left upper extremity. He expressed the opinion that any left-handed task would have been made more difficult and, in some cases, impossible, by virtue of the plaintiff’s injury, but he did not believe that any normal occupational or daily living activities would cause any harm.
(ii) Mr Ireland
24 Mr Ireland, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 13 May 2014 and provided a report of the same date, as well as a supplementary report dated 27 May 2014. He noted the swelling on the palmar aspect of the left middle finger (which was subsequently excised by Dr Seneviratne on 16 December 2015). He also noted an obvious deformity of the ring finger with subluxation of the distal joint and prominence of bone, dorsally, with a 10 degree radial deviation deformity of the distal joint. He found a full range of active movement of all joints of all five digits of the left hand, with the exception of the distal joint of the ring finger, which had only 30 degrees of extension and 40 degrees of flexion. He noted that there was normal sensation on the pulps of all fingers.
25 Mr Ireland had not seen any x-rays, or other investigations and, in particular, the imaging taken on the day of the incident, which indicated severe osteoarthritis in the distal interphalangeal joint of the fourth finger, together with corticated fragment present at the base of the old middle phalanx of the third finger, and an old healed injury to the proximal phalanx of the second finger.[29] Accordingly, Mr Ireland noted that there was no evidence of any pre-existing condition, and he made a diagnosis of traumatic arthritis of the distal joint of the ring finger with mild radiation deviation deformity, together with swelling on the palmar aspect of the middle phalanx of the middle finger. He opined that these diagnoses were entirely attributable to the single work injury which occurred on 17 June 2008. He described the injury to the plaintiff’s ring finger as occasioning “some awkwardness with the left hand, which would preclude him from playing the guitar but not preclude him from working as a carpenter or playing rugby. He found no obvious explanation for the plaintiff’s complaint of forearm pain and described the effect of the injury on the worker’s social, recreational, hobby and sporting life as minimal.[30] He considered there was a discrepancy between the severity of the subjective symptoms described by the plaintiff and the presence of corresponding objective physical findings. However, he considered that the plaintiff would benefit from excision of the lump on his middle finger and arthrodesis of the distal joint of his ring finger.
[29]DCB 40
[30]DCB 15
26 Mr Ireland’s supplementary report was confined to an explanation of the cyst on the plaintiff’s middle finger which he related to the incident and he stated that he anticipated a full recovery from such lesion after surgical treatment.
(iii) Dr Seneviratne
27 Dr Seneviratne, treating surgeon, who excised the cyst on 16 December 2015, provided a number of brief reports.[31] In those reports she refers to having excised a ganglion from the plaintiff’s left middle finger although it is plain that histology of the excised lesion showed it to be an epidermal cyst.[32] She did also note ongoing issues with “extensor lag of the distal interphalangeal joint of the ring finger”[33] and that fusion of that joint was being considered to address the pain.[34] As far as the surgery performed by herself was concerned, she stated that on post-operative review the plaintiff “had recovered very well post excision of the left middle finger epidermal cyst with scar maturation, normal hand function and no evidence of recurrence.”[35]
[31]PCB 42A and 42B, 43 and 44
[32]Dr Seneviratne’s report dated 28 June 2016 PCB 44
[33]PCB 42C
[34]PCB 44
[35]PCB 43
(iv) Mr Stapleton
28 Mr Stapleton, plastic and hand surgeon, saw the plaintiff at the request of the plaintiff’s solicitors on 16 April 2015 and 5 July 2016. At no point has Mr Stapleton been provided with the imaging of the plaintiff’s left hand taken on the day of the incident. He has given his assessments on the basis that, prior to the incident, the plaintiff’s left hand was normal. When he first saw the plaintiff he noted reduced range of movement in the proximal and distal interphalangeal joints of the three affected fingers. (I here interpolate that there is no evidence that the proximal joint of any of the three fingers was impacted upon by the incident.) He also notes that the plaintiff complained of reduced sensation over the complete length of the three fingers involved. He commented that it was difficult to assess how that had occurred, since the sensory nerves were not cut, but stated that they may have been crushed as the saw went across the back of the three fingers.[36] He noted that the plaintiff had reduced grip strength and was more awkward with his left hand and drops things, as well as the presence of the lump on the flexor surface of the right middle finger. However, he made no mention of any deformity or radial deviation of the distal portion of the left ring finger. Mr Stapleton considered that the plaintiff had impairment of his capacity to work as a carpenter because his power of grip was diminished and lifting, pushing and pulling and fine manipulative movements were difficult for him. He opined that, with difficulty and care, he would be able to return to work as a carpenter without his duties being restricted and that he was not at risk of developing arthritis in the future.
[36]PCB 50
29 In his more recent assessment in July 2016, Mr Stapleton noted that the sensation on the index finger was no longer diminished and on the middle and ring fingers was confined to partial (2 centimetres) transfer sensory loss over the pulp of the finger. Interestingly, the joint movements of the distal interphalangeal joints of the index and middle fingers on this occasion were greater by 10 per cent and 20 per cent respectively than at his previous examination. The ring finger was the same at 20 per cent fixed flexion. He did not consider that the plaintiff’s left hand would deteriorate but noted arthritic involvement of the distal interphalangeal joint of the ring finger. He repeated his view that gripping, pushing, pulling, repetitive activities, lifting and fine manipulative movements of his left hand are all a problem for him and, this time, opined that the plaintiff would not be capable of going back to work in unrestricted duties as a carpenter. As with his previous report he made a generic statement that the plaintiff’s social, domestic and recreational activities are also affected.
(v) Dr Nam
30 Dr Nam, plastic and reconstructive surgeon, examined the plaintiff on behalf of the defendant on 22 July 2015. He appears not to have been provided with any x‑rays or other scans or any records from the Maroondah Hospital where the plaintiff was originally treated. In essence, he found that there was a full range of movement of the interphalangeal joints of the index finger and the middle finger. He commented upon the swelling of the middle finger (which has since been the subject of a successful operation to excise the dermoid cyst on it). He made no mention of any sensory loss relating to any of the plaintiff’s fingers. He found that the plaintiff’s left ring finger has a restriction of extension by 20 degrees, together with radial deviation of about 10 degrees of the distal interphalangeal joint. He stated that this deformity is stable and no treatment is indicated. He described the plaintiff as having a moderate disability of the left hand and “a capacity for alternative employment” which he did not explain. He considered the worker’s employment was a contributing factor to his injury.
(vi) Mr Buntine
31 Mr Buntine, plastic and hand surgeon, examined the plaintiff at the request of the defendant on 13 January 2017. He noted that, although the plaintiff told him that his left hand had been normal before the incident, the imaging report of 17 June 2008 showed severe osteoarthritis involving the distal interphalangeal joint of the ring finger, an old healed injury to the proximal phalanx of the index finger and a corticated fragment present at the base of the middle phalanx of the middle finger consistent with an old injury.
32 Having read the day procedure record of the Maroondah Hospital for the date of the incident, Mr Buntine noted “that the lacerations to the left ring and middle fingers were debrided and washed out and that there was injury to tendon, that particles of bone and nail plate was [sic] removed (this was for the ring finger) and that a moderately severe nail bed injury with some loss was repaired (again, this was for the ring finger).” He noted that the laceration to the dorsum of the plaintiff’s left index finger had been superficial and no formal operation was required for it.[37]
[37]Report dated 16 January 2017, DCB 28
33 Mr Buntine also took a history of the procedure performed by Dr Seneviratne to remove which was shown by histology to be a ruptured epidermal cyst (as distinct from ganglion). He stated that an epidermal cyst would not recur.[38]
[38]DCB 29 and 31
34 The history of pain recorded by Mr Buntine is that the left index finger is not appreciably painful and the pain in the left ring and middle fingers is not continuous, but comes and goes while he is using his hand and afterwards, and he takes two or three Panadol or Nurofen daily for it. The pain is much worse under cold conditions. Mr Buntine noted a marked Heberden’s node affecting the ulnar side of the distal interphalangeal joint of the ring finger where there was significant radial deviation (15 degrees) and some fixed flexion deformity. In addition, there was an abnormality of the ulnar side of the fingernail which does not adhere quite as far distally as the nails of the other fingers, as well as irregular ridging of this part of the fingernail due to damage to the root of the nail bed at the time of the incident. Mr Buntine noted that the terminal pulp of the ring finger showed an absence of evidence of appreciable use.
35 Mr Buntine noted the presence of Heberden’s nodes on the left thumb and little finger, neither of which were injured in the incident. He also noted that there was a similar degree of radial deviation at the distal interphalangeal joint of the left (uninjured) little finger to that of the injured ring finger. He stated that “there was minimal stiffness of the fingers except at the distal interphalangeal joint of the left ring finger which is considerably deformed by osteoarthritic change which was present before the hand was injured but which has no doubt slowly worsened since then.” He stated that the plaintiff indicated that this was what troubles him most, as well as a weakened grip, which he claimed would be a problem if he were working as a carpenter.
36 However, Mr Buntine also took a history that the plaintiff felt the need to look away from operating any hand tool or machine and, so, he cannot work as a carpenter. He recorded that the plaintiff and his wife “made it clear that psychological influences presently have a much greater effect upon his ability to work as a carpenter than do any physical problems”.[39] He stated that the plaintiff said “Pain does not interfere much with the ordinary activities of his left hand. He made it clear that he is not presently troubled by severe or continuous pain affecting his left hand.”[40] He opined that physically based symptoms of a minor degree still result from the physical injury and it appears that the injury sustained in the incident “materially contributed to the abnormalities of the left ring and middle fingers and that this still applies.”[41] He concluded that “the physical injury contributes to a minor degree to the discomforts experienced and to the weakness of grip of the left hand which, in turn, would seem to result in part from more than necessary restriction of use of the hand over a long period of time.”[42]
[39]PCB 33
[40]DCB 32
[41]DCB 34
[42]DCB 35
(vii) Mr Behan
37 Mr Behan, plastic and reconstructive hand surgeon, was asked to examine the plaintiff on behalf of his solicitors on 23 January 2017. He provided a report of the same date. He was subsequently asked to provide a supplementary report (without further examining the plaintiff), which he did on 24 February 2017. In addition, he was asked to provide a further supplementary report commenting in particular upon the medical imaging of the plaintiff’s hand takenon the day of the incident and Mr Buntine’s report dated 16 January 2017. Mr Behan provided a supplementary report by way of email dated 7 March 2017.
38 Mr Behan’s first report is based on the incorrect premise that on the day of the incident the plaintiff underwent surgery for the soft tissue injuries of the left index and middle fingers and a fractured dislocation of the left ring finger. In fact, only the middle and ring fingers were the subject of surgery and there was no surgical procedure performed upon the index finger. Further, there is no evidence that he suffered a fractured dislocation of the left ring finger.
39 Mr Behan has also premised his report on the basis that the plaintiff was off work for approximately three months before returning to light duties for three months, whereas the evidence is that he was cleared for full duties after one month off work.[43]
[43]DCB 42 and 43
40 Mr Behan ordered an updated x‑ray of the left hand and the film of that x‑ray dated 4 February 2017 was provided to Mr Behan by the plaintiff’s solicitors on 17 February 2017.[44] Unfortunately, Mr Behan has failed to comment on this x‑ray film in either his report dated 24 February 2017[45] or in his subsequent email dated 7 March 2017.[46] Although Mr Behan noted that the plaintiff was disturbed by the scarring to his left hand and “a little preoccupied with the deformity of his left hand and restrictions of function”,[47] his only recorded history of pain is “There is certainly discomfort and pain during the winter months particularly when performing outside work with his left hand.”[48]
[44]PCB 83A
[45]PCB 84 – 85
[46]PCB 85A and 85B
[47]PCB 61
[48]PCB 67
41 Mr Behan was provided with the imaging of the plaintiff’s left hand taken on the day of the incident. He was also provided with the report of Mr Buntine which stated that the Maroondah Hospital records note in relation to the ring finger that there was injury to the tendon and particles of the bone and nail plate were removed. Thus, Mr Behen concluded that this injury and subsequent repair would be “implicated in further degenerative changes of an osteoarthritic nature aggravating the previous clinical state.” He described the aetiology of the osteoarthritis in the left ring finger as “biphasic, in other words, one cannot deny the injury may have precipitated further deterioration. I also note the extensor tendon in the vicinity possibly involving the dorsal capsule of the DIPJ of the (L) ring finger may have created further instability allowing the present clinical state of dislocation of the DIPJ to be present.”[49]
[49]Paragraph 1 of the email dated 7 March 2017 PCB 85A
42 In response to Mr Buntine’s comment that “The pain of OA change does not appear to have been affected much by the injury”, Mr Behan stated, “… If there is further manifestation of an OA deterioration with dislocation – clinically – this would be extremely painful.”[50] However, as previously mentioned, Mr Behan did not address x‑ray film of 4 February 2017, at all, and certainly did not state whether it showed any osteoarthritic deterioration.
[50]Paragraph 2, Op.cit.
43 In his report dated 23 January 2017, Mr Behan had stated that the plaintiff’s employment activities have been restricted particularly in relation to the lifting heavy weights with the left hand, but that he had relative insecurity in any dexterous movements bilaterally when handling power tools. Thus, he concluded that the plaintiff cannot perform his pre-injury duties “to the same extent” because of the loss of strength of the left hand but also because “he had lost confidence in performing tasks using power tools.” [51] In his final expression of opinion in the email, dated 7 March 2017, Mr Behen stated that the plaintiff “cannot do heavy industrial work because of his weak power grip on the left hand which precludes working as a carpenter with industrial saws.”[52] He went on to state in response to Mr Buntine’s suggestion that the plaintiff had non-organic and presumably psychologically-based symptoms preventing his return to work: “My response is that one has only to examine a patient that has had an industrial saw accident to the non-dominant hand (as in this case) to see that dexterity in holding nails, tacks et cetera is compromised. This often produces an anxiety factor in a patient affecting his carpentry work and personal safety (the fear that it may happen again).”[53] He stated that the likelihood of an arthrodesis to the plaintiff’s left ring finger cannot be discounted. He was asked whether the need for such surgical correction was related to the injury on 17 June 2008 and his responses was, “Absolutely”.[54]
[51]PCB 66
[52]PCB 85A
[53]Op cit
[54]Op cit
Analysis of the evidence
44 There is no doubt that, notwithstanding that the plaintiff states that he was not aware of any old injury to his left hand, the imaging taken at Maroondah Hospital on the day of the incident reported an old healed injury to the proximal phalanx of the second finger, a corticated fragment present at the base of the middle phalanx of the third finger consistent with an old injury and severe osteoarthritis involving the DIP joint of the fourth finger. Nevertheless, the plaintiff’s evidence is that he had no symptoms of pain or restriction of movement in his left hand prior to the incident.
45 Unfortunately, no doctor has compared the images of the left hand taken on the day of the incident with subsequent x‑rays taken on 16 October 2014, 3 September 2015 and, most recently, on 4 February 2017, in order to enlighten the Court as to what, if any, progression in underlying osteoarthritic change has occurred in the plaintiff’s hand since the incident.
46 Although Mr Anstee, when he saw the plaintiff on 4 December 2013, noted restriction of range of movement and decreased sensation over the palmar surface of each of the index, middle and ring fingers and, also, scarring from the incident, he made no mention of any deformity of the distal portion of the plaintiff’s ring finger. However, a photograph appended to Mr Anstee’s report dated 4 December 2013 does show what appears to be some fixed flexion of the distal interphalangeal joint of that finger, together with some lump or swelling of the joint, which is more pronounced on the little finger side. Comparing Mr Anstee’s photograph with those taken by Mr Buntine on 13 January 2017 and by Mr Behan on 23 January 2017, it is difficult to know whether the lump or swelling on the joint is more pronounced. However, some radial deviation of that joint (ie towards the middle finger) has been commented upon by medical examiners subsequent to Mr Anstee, and it was evident to me, when I viewed the plaintiff’s hand in Court.
47 Interestingly, on 4 December 2013, Mr Anstee appears to have noted a diminution of sensory loss over the whole of each of the index, middle and ring fingers, according to the evaluation record appended to his report.[55] On 13 May 2014, Mr Ireland, noted normal sensation on the pulps of all fingers.[56] Subsequently, on 5 July 2016, Mr Stapleton noted no loss of sensation to the index finger, but partial transverse sensory loss over the pulps of the middle and ring fingers of 2 centimetres.[57] On 13 January 2017, Mr Buntine made no mention of sensory loss in any of the fingers. And, on 23 January 2017, Mr Behan, under the heading “Sensory deficit in relation to scarring” noted “The patient indicated there is nothing abnormal.”[58]
[55]DCB 6
[56]DCB 14
[57]PCB 56
[58]PCB 64
48 I must say that I wonder whether Mr Buntine is mistaken in stating that the Day Procedure Record of the Maroondah Hospital notes on the day of the incident that there was injury to tendon and that particles of bone were removed in relation to the ring finger.[59] I am unable to see any reference to a tendon or bony injury in any of the records of the hospital which have been tendered. In particular, the Operation Report has a specific notation as follows: “Ø injury to tendon, joint & bone”.[60] I understand that notation to mean that there was no sign of injury to tendon, joint and bone. Certainly, the Operation Report makes no mention of particles of bone being removed, as distinct from the nail plate being removed. As already mentioned, Mr Behan appears to have relied upon this reference in Mr Buntine’s report in expressing his conclusions in the email to which I have earlier referred.[61] This is all somewhat unsatisfactory and specialists giving an opinion should, at least, have been provided with the Operation Report for their own perusal.
[59]DCB 28
[60]PCB 39B
[61]PCB 85A
49 None of the other medical reports mention any tendon injury or removal of bone relating to the ring finger. Nevertheless, by the time Mr Ireland saw the plaintiff in May 2014, he noted that there was subluxation of the distal joint of the ring finger and prominence of bone dorsally, together with a 10 degree radial deviation deformity of the distal joint, which he ascribed to traumatic arthritis attributable to the work injury on 17 June 2008. He also attributed the swelling on the palmar side of the middle phalanx of the middle finger to that incident. In addition, Dr Seneviratne, in August 2015, noted an extensor lag of the distal interphalangeal joint of the ring finger, which she considered required an arthrodesis.
50 There is no doubt that the plaintiff’s left ring finger was the most severely injured in the incident with a deep laceration causing what the surgeon described in the Operation Report as a “moderately severe nail injury with nail bed loss”[62], which required the nail to be removed. In all of the circumstances I am satisfied that, notwithstanding the pre-existing arthritis in this joint, the plaintiff had no symptoms prior to the incident and it is the trauma of the incident which has caused the underlying arthritis to become symptomatic and it has been thereby aggravated and accelerated to the point where the joint has subluxed, causing a swelling deformity and the radial deviation previously described. The underlying arthritis has been aggravated and accelerated to the extent that fusion of the distal interphalangeal joint of the ring finger is recommended, albeit that the plaintiff has decided not to have it at this stage while there is still movement in the joint. Like Mr Buntine, I accept that the plaintiff’s decision at the present time is a reasonable one.[63]
[62]PCB 39B
[63]DCB 29
51 The defendant did not choose to ventilate the issue of whether the cyst which had been removed from the middle phalanx of the plaintiff’s left middle finger was causally related to the incident. It paid for the surgery. I am satisfied on the material before me that the removal was successful and I accept Mr Buntine’s opinion that, as the histology of the removed lesion showed it to be an epidermal cyst rather than a ganglion, on the balance of probabilities it will not recur.[64] I am satisfied that it is likely that Dr Seneviratne gave advice about the possibility of recurrence when she believed that the lesion was a ganglion prior to having received the histology report.
[64]DCB 29 and 31
52 I have already commented upon the fact that the problem with loss of sensation in the index, middle and ring fingers appears to have diminished over the years.
53 While the various reports note some limitation of movement of the three fingers, the extent of that limitation relating to the index and middle fingers seems to have reduced with time. Mr Anstee recorded limitations of extension and flexion back in December 2013.[65] Mr Stapleton, in April 2015, also found restriction of movement of these fingers. The restriction in the index finger was somewhat less than Mr Anstee had found and in the middle finger a little more (but the cyst had not been removed at this time).[66]
[65]DCB 6
[66]See Mr Anstee’s figures DCB 6 and Mr Stapleton figures PCB 54
54 In April 2015, Mr Stapleton noted that the plaintiff lacked a complete power grip on the left hand side. If one compares the photograph taken by Mr Stapleton of the plaintiff’s left hand grip[67] with the photographs taken by Mr Behan appended to his report of 23 January 2017, there appears to be an improvement in the capacity of the plaintiff to make a clenched fist. Mr Behan’s Image 4[68] shows the plaintiff making a fist with his left and right hands. Mr Behan has noted, “There is only minimal sign of abnormality on the (L). The cascade appearance on flexion is almost the same as that on the (R).” In image 7[69] the plaintiff is seen making a closed fist with his left hand. Again, Mr Behan comments, “A good cascade appearance – which allows the patient to have a normal power grip but somewhat weakened (18 kg).” This is somewhat confusing in that, in the body of his report, Mr Behan has stated that the plaintiff “cannot maintain heavy pressure grip with the (L) hand (2/5 Oxford and 10 kg on a dynamometer).”[70]
[67]PCB 53
[68]PCB 79
[69]PCB 82
[70]PCB 60
55 On viewing the plaintiff’s hand in Court, he was not able to make a complete fist with his left hand in that he could not flex the tips of his fingers underneath the distal joints. However, this restriction applied to his little finger as well as the index, middle and ring fingers, yet the little finger was not injured, at all, in the incident and the index finger had suffered only minor cuts not requiring surgery. In this regard, I note that Mr Buntine recorded that the plaintiff had an ulnar Heberden’s node at the extremity of the left little finger, which was also radially deviated and flexed to a degree at its distal interphalangeal joint. Also, Heberden’s nodes were obvious on the dorsal aspect of the interphalangeal joint of the left thumb. Thus, it would appear that there are visible signs of osteoarthritic changes to both the uninjured little finger and thumb. Nevertheless, I do accept that the plaintiff suffers some diminution of grip strength.
56 Mr Buntine describes the plaintiff’s physical injury as contributing to a minor degree to his discomfort and weakness of grip. He opines that these issues result, in part, from more than necessary restriction of the use of the plaintiff’s hand over a long period of time. He considers that psychological issues have played a role, particularly affecting his inability to return to work as a carpenter. This is because he has lost confidence and feels anxiety when operating machinery. As previously mentioned, he stated that both the plaintiff and his partner made it clear that psychological influences have much greater effect upon his inability to work as a carpenter than do any physical problems.
57 Clearly the incident was a frightening one and, as Mr Behan points out, “The anxiety of the episode continues to have an effect upon his mind psychologically.”[71]However, it is clear that in determining whether the pain and suffering consequences of the plaintiff’s injury are serious, I am not permitted to take into account any psychological factors. These may only be taken into account for the purposes of an application relying upon paragraph (c) of the definition of serious injury.[72] The plaintiff’s application pursuant to paragraph (c) was abandoned.
[71]PCB 85
[72]s134AB(38)(h) of the Act
58 Over a period of some years, there have been a number of references by medical practitioners to psychological aspects of the plaintiff’s presentation. Mr Ireland noted back in May 2014 that the plaintiff complained of left forearm pain for which there was no obvious explanation and stated, “There is a discrepancy between the severity of the subjective symptoms of which the worker complains and the presence of corresponding objective physical findings.”[73]Mr Behan, in his report dated 23 January 2017, noted that the plaintiff, “is a little preoccupied with the deformity of his left hand and restrictions of function as a consequence.”[74] Mr Buntine on his examination on 13 January 2017, noted that there was, “minimal stiffness of the fingers with the exception of the distal interphalangeal joint of the left ring finger which is considerably deformed by osteoarthritic change which was present before the hand was injured but which has no doubt worsened since then”[75] and that there was “no appreciable limitation of flexion of any of the fingers of the left hand”[76] as demonstrated in a photograph of all fingers flexing to touch the palm which was appended to his report.[77]
[73]DCB 15 and 16
[74]PCB 61
[75]DCB 32
[76]DCB 31
[77]DCB 37
59 In the plaintiff’s second affidavit, he stated that he has ongoing pain in the three middle fingers of his left hand, even at rest. It increases with activity and travels down to the left wrist. He suffers pins and needles in his left arm and fingers and patches of numbness. The pain is worse in the cold weather. He suffers cramping sensations in his fingers and arm and pain in the left arm including his elbow and forearm.[78]
[78]Paragraph 12 PCB 22
60 Under cross-examination, the plaintiff stated that he did not suffer as much pain in the index finger as in the other two. He said he suffers pain in his middle finger and ring finger even at rest.[79] However, he then stated that the pain is there in the cold weather and he massages it to make it warm and “The pain come and go, pins and needles all the time and numbness, patches.”[80]He stated that the soreness travels down his wrist and, even if he drives he has to rest. He overloads his hand with working by using his wrist and arm to lift and the pain stays there and occurs all the time from his elbow down to his wrist and fingers. He said he overloads his arm all the time because he cannot grip anymore and he just reaches for Panadol or Neurofen for help or has a rest.[81] His evidence in his affidavit was that he tries to manage his pain with regular exercises, self-massage and over-the-counter painkillers, several times per week.[82]
[79]T58 – T59
[80]T59, L2-5
[81]T59 – T60
[82]Paragraph 13 of the plaintiff’s second affidavit PCB 22
61 I must say that I have some difficulty accepting that the pain which the plaintiff described as going down his whole arm from the elbow to the wrist and to the middle of the palm and down to the top of the injured fingers[83] is physically based. Also, his description that the pain is there all the time, even at rest, is not consistent with histories taken by many of the doctors which refer to his pain being intermittent: Mr Ireland took a history of forearm pain for which there was no obvious explanation and intermittent pain in the distal joint of the ring finger.[84] Mr Nam took a note of complaints of intermittent pains in the interphalangeal joints of his hand and weakened grip strength and pain in his elbow.[85] Mr Stapleton took a history that his left index, middle and ring fingers are painful in cold weather[86] and that the pain is quite severe on a cold morning and his grip is weaker.[87] Mr Behan took a history that, “There is certainly discomfort and pain during the winter months particularly when performing outside work with his left hand.”[88] Mr Buntine took a history that, “The pain affecting his left middle and ring fingers comes and goes and that his left index finger is not appreciably painful. He said the pain in left ring and middle fingers is not continuous but occurs while he is using the hand and afterwards and that he takes two or three Panadol or Nurofen daily because of this pain.” He noted that the pain is much worse under cold conditions.[89] Mr Buntine recorded that the plaintiff, “said pain does not interfere much with the ordinary activities of his left hand. He made it clear that he is not presently troubled by severe or continuous pain affecting his left hand.” He went on to state that the “pain affecting the left ring and middle fingers comes and goes, especially when he uses the hand but the pain is not intense and he takes only Panadol or Nurofen, two or three daily, because of the pain and that this is sufficient to prevent the pain from interfering with his sleep.”[90]
[83]T72
[84]DCB 15
[85]DCB 22
[86]PCB 50
[87]PCB 50 – 51 and 56
[88]PCB 67
[89]DCB 30
[90]DCB 32
Surveillance film
62 In the course of the hearing, surveillance film of the plaintiff taken on 25 February 2017 and 4 March 2017 was shown to the plaintiff in cross-examination and tendered in evidence.
63 The plaintiff conceded that the first film on 25 February 2017 showed him conducting his weekend handyman/home maintenance carpentry business in relation to a job at a house in Avoca Street, South Yarra. At approximately 9.37am the plaintiff is seen walking into a Mitre10 store and he leaves carrying two sheets of plasterboard under his left arm, with his left hand gripping the bottom of the two sheets. In his right hand he is carrying one larger sheet of plasterboard. He then uses both hands to grip either side of the boards as he loads them into the back of the van which he has been driving. He also loads into the van a longer, narrower piece of board, which he was apparently using to build a shelf for the customer at Avoca Street. He shuts the door and appears to turn the door handle with his left hand. The film then jumps to 14.35 where the plaintiff is seen making several trips out from the residence where he concedes he has been performing the construction of the shelf. He is seen making several trips from the residence to the back of the van, carrying items of equipment in each hand. At one point he seems to be carrying a circular saw in his left hand and a flat, rectangular toolbox of some sort in his right, and he uses both hands to lift the flat, rectangular box into the back of the van. At another point, he uses both hands to lift a somewhat awkward pile of about 6 different sized off-cuts of timber from the ground into the back of the van. The plaintiff conceded in cross-examination that he was using each of his hands to carry various pieces of equipment which included a toolbox (carried with his right hand) an extension cord, a planer and circular saw. Under cross-examination he conceded that those tools are equipment that he uses in his carpentry work in his weekend maintenance role.[91]
[91]T66
64 The second film taken on 4 March 2017 commences with the plaintiff driving off in the same van. For a time he is leaning into the van and then emerges from the van with a mobile phone held to his left ear with his left hand. He is then seen to open up the rear of the van and climb into it and, using both hands, undoes straps which are securing gas cylinders. In cross-examination the plaintiff conceded that the cylinders were full and weighed 20 to 30 kilograms. He is seen to unload two cylinders from the back of the truck with his left hand on the top of the cylinder and his right underneath and to carry each of them briefly out of sight and return to the truck in a couple of seconds. He is then seen to lift a cylinder, which appears to be taller than the other two, out of the back of the truck with only his left hand holding onto the rim of the cylinder. Once he has the cylinder out of the truck, he uses both arms to carry it out of sight for the same brief second or two, as with the other cylinders. Sometime later in the film, he is seen carrying a length of rolled-up orange electrical cable in his left hand and has something in his right hand, and, subsequently, he is seen carrying a length of wood under his left arm whilst also carrying something in his right hand. Still later, he is seen carrying something which appears to look like a slide rule and some other item in his left hand while he has nothing in his right hand.
65 I must say that the plaintiff did not appear to have any difficulty gripping items with his left hand or carrying them and it was not evident from viewing the film that he had any disability of his left hand. However, the bulk of the items, with the exception of the gas cylinder, which he briefly lifted only with his left hand, did not appear to be particularly heavy.
Conclusion
66 After weighing up all the evidence, I have determined on the balance of probabilities that the plaintiff does not now suffer sensory loss of any significance in the index, middle or ring fingers of his left hand. I am satisfied that he does have some diminution of movement in all three fingers of a relatively mild degree such that he cannot make a full fist, as previously described, and this has resulted in some reduction of his grip strength. I find that the plaintiff’s evidence that he has “no grip” or “can’t grip anymore”[92] is not accurate. I am satisfied that his left index finger is not painful, but he does suffer some pain in his middle finger and a greater level of pain in his ring finger, which has the deforming lump and radial deviation. I find that the pain in the left ring and middle fingers is not constant, but comes and goes, particularly when he is using the hand at work. I accept that it is worse in cold weather but, generally, the pain is controlled by the plaintiff taking two or three Panadol or Nurofen each day.
[92]T60 lines 3 and 12
67 Save for the findings that I have made concerning the pain and restriction in the previous paragraph, I consider that the symptoms of pain described by the plaintiff as extending from the left elbow down the forearm and into the fingers which he says are present all the time and which are “not really” stopped by Panadol or Neurofen[93] are most likely to be psychologically based.
[93]T60
68 I accept that the diminution of the plaintiff’s grip strength in his left hand and the pain which he suffers, particularly in his ring finger, along with the deformity of that finger, are likely to make constant heavy repetitive lifting work difficult for him. He was apparently capable of carrying out heavy lifting work prior to the incident, however, I am hampered by the lack of detailed evidence as to what his employment with the defendant involved. All I know is that which appears in the plaintiff’s first affidavit, namely, that at the time the plaintiff commenced his employment as an apprentice carpenter in October 2007 “the defendant operated a business building granny flats in established residential properties.” He states, “Later the business expanded to constructing houses.”[94]
[94]Paragraph 6 of the plaintiff’s first affidavit PCB 15
69 Whilst I imagine that the plaintiff was involved in some heavy lifting tasks whilst employed for the defendant and that this would now be difficult for him if it was a very regular feature of his employment, the fact is that he continued to work performing full duties as an apprentice carpenter after he returned to work approximately one month after the injury. He presumably performed those duties to a satisfactory standard since he completed his apprenticeship in mid-2011 (3 years after the incident), and remained working as a qualified carpenter for the defendant for a further year until the defendant went into liquidation in mid-2012. Thus, it would seem that the plaintiff’s capacity to satisfactorily perform carpentry duties up until the time the defendant went into liquidation was not impaired to any great extent, although the plaintiff states that he found it difficult and he could not work as fast as others.[95]
[95]Paragraph 12 of the plaintiff’s first affidavit PCB 16
70 After ceasing to work for the defendant, the plaintiff appears to have believed that he was still capable of working as a carpenter because his evidence is that he applied for jobs as a carpenter but was not successful. Indeed, in his second affidavit, the plaintiff attributes his lack of success in obtaining a job as a carpenter not to his injury but, rather, states “I tried to find another job as a carpenter, I was not successful due to my restricted experience.”[96] The plaintiff does go on to state “On some level, I also knew that I was going to have difficulty doing carpentry work in the long term. I therefore started looking for less physically demanding jobs.”[97]
[96]Paragraph 3 PCB 19
[97]Paragraph 3 of the plaintiff’s second affidavit
71 The plaintiff acknowledged in cross-examination that he had had difficulty being employed as an apprentice, in the first place, because of his age (thirty-seven at the time of the commencement of his apprenticeship). He stated that he was “too old for (an) apprentice” and “so I had to perform otherwise will lose my apprentice (sic) and I can’t find apprentice somewhere else.”[98]
[98]T30
72 In addition to the plaintiff’s age and relative lack of experience, it appears that psychological factors, namely, the fear of injuring himself again whilst working with tools, also played a part in his decision not to pursue work that involved the full range of duties of a carpenter. Mr Ireland took a history in May 2014 that the plaintiff could no longer do full carpentry duties because he was scared.[99] Mr Behan took a history that the plaintiff had lost confidence in performing tasks using power tools[100] and that the anxiety of the incident continues to have an effect upon his mind psychologically.[101] Mr Buntine took a history that the plaintiff and his partner confirmed that the main reason that he could not presently work as a carpenter was because of the anxiety he feels when operating machinery, rather than the physical effects of the injury upon his left hand and that he had lost confidence in his ability to properly work as a carpenter, although he did add that he would be troubled by weakness of his left hand grip.[102] Under cross-examination the plaintiff stated that maybe he had spoken to Mr Buntine in January this year about his psychological concerns but the main reason for not being able to work as a carpenter is that he is limited physically.[103] In any event, the plaintiff conceded that, now, he does use a variety of tools, including power drills, circular saws (albeit not as large as the one he was using when he was injured) and hammers with chisels. This seems to me to support that he is capable of undertaking a variety of carpentry tasks, albeit not ones which would require repetitive lifting or manoeuvring of such things as heavy beams and joists.
[99]DCB 14
[100]PCB 66
[101]PCB 85
[102]DCB 29
[103]T56-57
73 Although I accept that the plaintiff has suffered some diminution of grip strength of his left hand, as well as pain and some loss of movement in the middle and ring fingers (both of these factors being greater in the ring finger which has a deformity), and that this would preclude him from repetitive heavy lifting or handling work requiring the use of both of his left hand, I do not accept that there is any evidence that he suffers compromise of his dexterity in such tasks as holding nails or tacks as suggested by Mr Behan.[104] There is no suggestion that the plaintiff has lost the pincer grip of his non-dominant hand or that he is unable to oppose all fingers to his thumb or that the overall dexterity of his hand is impacted upon by the injury of 17 June 2008, other than by the somewhat diminished grip strength and intermittent pain in the middle and ring fingers and deformity of the ring finger. Mr Behan’s opinion is an assertion not supported by reference to any specific fingers or limitation of movement or loss of sensation in those fingers, other than the generic reference to grip strength. I note that in July 2016, Mr Stapleton noted, amongst other things, that fine manipulative movements are a problem for the plaintiff[105]. However, at this time the plaintiff still had partial transverse sensory loss over the pulps of the middle and ring finger[106] and this is not mentioned as a problem more recently. However, even then, Mr Stapleton did not explain what specific movements he had tested and found lacking to support his proposition that fine manipulative movements were a problem.
[104]Email dated 7 March 2017 PCB 85A
[105]PCB 57
[106]PCB 56
74 The medical evidence supports that the plaintiff’s ring finger requires an arthrodesis. If this procedure is undertaken in the future, then the ring finger will be stiffer in that the distal joint probably would be fused at 10 degrees of flexion.[107] This may make the carrying out of manual tasks somewhat more awkward, albeit that it is likely that the pain would be relieved. At the present time the plaintiff has no definite plans to have such surgery and still has a capacity to carry out a wide range of carpentry activities. There is no evidence as to what the x-ray taken in February this year shows concerning the progression, or otherwise, of arthritic change in the ring finger or either of the other injured fingers or the extent to which any change might be attributable to the incident. Whether the plaintiff will have the arthrodesis and, if so, when, are matters that can only be speculated upon, as is any likely outcome of such procedure.
[107]Mr Behan’s report PCB 64
75 I am not satisfied that any impairment to the plaintiff’s left hand flowing from an organic injury is the reason that he has chosen not to pursue work in his “dream job” as a carpenter, but, instead, to perform furniture repair work at Jati, which he finds less satisfying. Moreover, he does still perform some carpentry work in a private capacity at weekends.
76 In support of his application, the plaintiff also relied upon his evidence that, before the injury, he played a lot of rugby and touch rugby. He stated that he has not returned to rugby since his injury, save for training with a Craigieburn club but he felt pain in his fingers when he caught or touched the ball and did not actually play a game.[108] More recently, he stated “I have not returned to rugby… I used to love rugby and have trophies at home from playing this. I've played since I was a child and have always loved the game and the social aspect of it. I miss this now.”[109] Under cross-examination the plaintiff conceded that he had not, in fact, played a game of rugby since he moved from Sydney to Melbourne in 2006, a couple of years before the injury to his hand. His attempt to play touch rugby with a Craigieburn club was after the injury, approximately three or four years ago. In his first affidavit he attributed not actually playing the game to a lack of confidence and feeling that he might embarrass himself and let the team down.[110] Under cross-examination he seemed to agree that, because the Craigieburn Club was a Samoan-based club, he was obliged to pay registration because he was an ex-rugby player.[111] In any event, I find it unlikely that a man in his forties would pursue the playing of rugby at any significant level. Moreover, the plaintiff does have very onerous family obligations now in excess of those which he had at the time of injury and it is difficult to know how he would make time to train for and compete in rugby matches. In all the circumstances, I am not satisfied that the plaintiff’s inability or failure to play rugby is attributable to any impairment of his left hand flowing from the incident.
[108]Paragraph 21 of the plaintiff’s first affidavit PCB 18
[109]Paragraph 18 of the plaintiff’s second affidavit PCB 23
[110]Paragraph 21 of the plaintiff’s first affidavit PCB 5
[111]T51
77 The plaintiff used to play guitar daily before the incident, but now he does not have the capacity to exert pressure on the strings over the frets in order to play chords and he has had to give up playing guitar and this upsets him. I accept that for the plaintiff this is a significant diminution of his enjoyment of life. In addition, he has played piano regularly since he was very young and he taught his children to play piano, but states that because of his injury he is unable to stretch his left hand as well as previously in order to play chords and therefore, is not as good a player as previously, although he still does play.[112] In addition, he states that he has given up going to the gym because he found it was aggravating his left hand and arm pain.[113] However, it is not clear how often he used to attend the gym prior to the incident. In his first affidavit he simply states, “I have attended the gymnasium from time to time since the incident… However, the injury makes it difficult for me to use free weights as I might drop them and weight exercises on my left side cause pain in my bicep and elbow.”[114] It seems to me that there are many activities at a gymnasium which the plaintiff would be able to undertake and, given the dearth of material as to how regularly he attended the gymnasium prior to the incident, it is difficult to attribute little weight to this evidence.
[112]Paragraph 19 of the plaintiff’s first affidavit PCB 17
[113]Paragraph 19 of the plaintiff’s second affidavit PCB 23
[114]Paragraph 22 PCB 5
78 The plaintiff also states that he has trouble driving for long distances and that sleeping on his left side can make his hand cramp up. He says he has difficulty carrying his children with his left hand. It is not clear to me why this should be so. I have found that the plaintiff does not have any injury to his left arm as such, but some intermittent pain any reduced grip in his left hand. In any event, he has no impairment in his dominant right hand and there is no reason that he could not carry his children with his right arm. I accept that the plaintiff may have difficulty catching balls or playing some ball sports with his children. However, there is no apparent reason why he would be unable to kick a ball, play chasey or generally engage with his children in a wide range of activities. In determining whether pain and suffering consequences of impairment are serious, one must consider, not only what is lost, but also what is retained. The plaintiff has retained a substantial amount of function in his left hand and has no loss of function of his dominant right hand. He can care for himself, work full-time repairing furniture, as well as doing carpentry/handyman work on Saturdays and both of these jobs include driving a 3.2 tonne van. He is, generally speaking, able to perform the activities of daily living which he used to be able to perform prior to the incident and still enjoy playing the piano and engaging in family activities.
79 The pain which I find the plaintiff suffers, is intermittent pain in the middle and ring fingers, which is worse in cold weather. He seems to manage his pain by taking non-prescription medication, Panadol or Neurofen, about two or three times per day. He has not found it necessary to attend a doctor for many years in relation to his hand injury and, certainly, has not sought relief by way of prescription (that is, stronger) analgesia or medication to help him sleep. If the pain and interference with sleep were very considerable, I would have expected that the plaintiff would have consulted a doctor in recent times to see what alleviating treatment might be available.
80 The plaintiff’s pain and restrictions in relation to heavy, repetitive carpentry work with this left hand, the inability to play the guitar, a somewhat reduced enjoyment of the ability to play the piano, and some limitation upon playing ball games with his children, in combination, are consequences of impairment which might be described as significant to the plaintiff. However, in my assessment, they do not meet the higher threshold of serious injury, that is, when judged by comparison with other cases in the range of possible impairments or losses of body function, I do not find those consequences to be more than significant or marked and at least very considerable. Accordingly, I am not satisfied that the plaintiff has discharged the requisite standard of proof and, the plaintiff’s application is dismissed.
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