Kelso v Tatiara Meat Co. Pty Ltd
[2009] VCC 20
•3 February 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No.
| TYRONE KELSO | Plaintiff |
| v | |
| TATIARA MEAT CO. PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 December 2008 |
| DATE OF JUDGMENT: | 3 February 2009 |
| CASE MAY BE CITED AS: | Kelso v Tatiara Meat Co. Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0020 |
REASONS FOR JUDGMENT
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Catchwords: s.134AB Accident Compensation Act 1985 – serious injury – partial
amputation of thumb – pain and suffering
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B W Collis QC | Clark & Toop Lawyers |
| Mr A Ingram | ||
| For the Defendant | Mr W R Middleton | Wisewoulds Lawyers |
| HER HONOUR: |
Introduction
1 Between 1 July 2000 and 30 June 2001 the plaintiff was employed by the defendant as a casual meatworker.
2 On 28 November 2007, having previously been denied leave, the Court of Appeal allowed the plaintiff’s appeal and remitted for rehearing by a County Court judge the application pursuant to sub-s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to bring proceedings for recovery of damages.
3 The plaintiff’s application is made under paragraph (a) of the definition of “serious injury” involving as it does injury on 29 June 2001 when the plaintiff’s right thumb was partially amputated (according to plastic and reconstructive surgeon, Mr Ashton “a complete transverse, slightly oblique amputation of the
thumb extending through the thumb at the level of the proximal nail bed and
underlying distal phalanx”) whilst he was cutting lamb carcasses with an AEW BandSaw. The injury on which the plaintiff relies is permanent serious impairment of his dominant right hand.
4 On behalf of the plaintiff it was submitted that, of the pain and suffering consequences suffered, which were likely to endure for the foreseeable future, the most significant was “constant daily pain which worsened in cold working conditions and cold weather”.
The Areas of Dispute
5 The defendant contested the application on two bases. The first related to whether the pain and suffering consequences alleged by the plaintiff when judged by comparison with other cases in the range of possible impairments or loss of right hand function (two of which, Cowden v Transport Accident Commission & Anor [2003] VSCA 198 and Strudwick v Mackay Casings Pty Ltd & Anor (Unreported, County Court of Victoria, Judge Anderson, 12 August 2005), were handed to the Court) could be fairly described as being more than significant or marked and as being at least very considerable.
6 The second related to the recent diagnosis by consultant physician, Dr Blombery, of “complex regional pain syndrome, type 1 complicating traumatic amputation of the tip of the right thumb”.
The Evidence Called and Tendered
7 Apart from the photographs tendered (the most recent taken in November 2008), along with counsel I inspected the plaintiff’s injured thumb.
8 The plaintiff deposed to the accuracy of his four affidavits sworn on 4 August 2004, 3 October 2006, 21 November 2006 and 21 November 2008 and he gave limited evidence before being cross-examined.
9 The material tendered by him also consisted of: (a) medical reports from Western Hospital, Mr M Ashton, Mr D Marshall, Mr F Behan and Drs Honey, Kaplan, Epstein and Blombery; (b) a copy ‘Claim for Impairment Benefits’ form; and (c) a copy letter to the plaintiff’s lawyers from the insurer.
10 The defendant called no evidence. However, it tendered documents from its Court Book, consisting of: (a) an affidavit of Kenneth Matthews; (b) reports from Drs Rowe and Stesin; (c) 16 pages extracted from the Clinical Notes of Dr Stesin; (d) a further report from Dr Behan; and (e) two documents detailing football player statistics for the plaintiff. In addition to these documents, the defendant also tendered a collection of images from the ‘Facebook’ website entry of the plaintiff.
11 Insofar as any challenge to the plaintiff’s credit was mounted by the defendant, in the main it was directed to establishing the extent to which the plaintiff had exaggerated his disability and any pain and suffering consequences. For instance, I formed the view that in response to cross- examination the plaintiff probably overstated the level of his pain and the frequency with which he used painkilling medication in connection with his right thumb injury. Nevertheless, I formed the view that apart from the unsatisfactory aspects of his evidence (discussed in more detail below), over a period of many years the plaintiff provided a generally consistent account of pain and suffering consequences (supported by the medical evidence) which objectively speaking meet the statutory threshold for ‘serious injury’.
The Plaintiff’s Background and Employment Since Injury
12 This information was principally contained in the plaintiff’s first affidavit and updated in subsequent affidavits. For the purpose of this judgment I have referred to this evidence in a summary fashion.
13 The plaintiff is 26 years of age having been born on 22 May 1982. He was 19 years old, single and living with his parents when he injured his right thumb. However, as his evidence and most recent affidavit confirms, the plaintiff is now in a relationship with a partner.
14 Following his injury the plaintiff was hospitalised at the Western Hospital for some ten days, during which time Mr Ashton performed a successful microvascular replantation. Indeed, following his final review of his patient, on 6 September 2001, Mr Ashton reported “excellent progress” although because the plaintiff was still “in the early post-operative period” Mr Ashton offered to review the plaintiff’s condition and to provide the insurer with a supplementary report within three months “when we would get a better indication of the degree of disability and functional loss in Tyrone’s hand”. As we now know this review never took place and it seems that since then the plaintiff has not consulted his treating surgeon or sought treatment (or review of his use of painkilling medication) from another doctor.
15 According to the plaintiff, following the injury, he was off work for three months, after which he returned to his employment where he performed light duties until the defendant ceased operating in mid 2002. Thereafter, for a period the plaintiff apparently received unemployment benefits before he resumed work as a meatworker with at least one other employer until 2004 when he returned to casual employment with the defendant as a lamb boner, a job in which he said he struggled because of the difficulty he had “in holding and gripping the knife”. By November 2005, the defendant again ceased operation after which the plaintiff found work at Tasman Meats as a meat trimmer until May 2006 when he said that he was “put off because of lack of
work”.
16 However, apparently by approximately October 2006, the plaintiff commenced work as a container hand following which, from about March/April 2007, he commenced employment as a storeman with Coles Myer Ltd at its chiller storage facility in North Laverton. I did not find plausible the plaintiff’s evidence that when he applied for his current warehouse position with Coles he did not know that it involved working in a chiller warehouse. Nevertheless, as my discussion of the medical evidence demonstrates sensitivity to cold working conditions is only one of a number of factors contributing to the chronic pain of which the plaintiff continues to complain.
17 To summarise his evidence on this issue, the plaintiff, who is a young man with limited education and specific job skills, said that as a result of the injury- related impairment of his dominant right hand, and notwithstanding his use of protective gear at work, he still suffers constant pain which is worsened by cold weather and working in cold conditions. However, his responses given during cross-examination left me with the impression that, despite the inconvenience and discomfort associated with working in his employer’s chiller storage facility, the plaintiff was not unhappy in his job and until some four weeks before the hearing, when he applied for another job, he had not been sufficiently motivated by pain or any other factors to seek alternative employment.
The Medical Evidence
18 The most recent medical evidence relating to the thumb injury is confined to reports from the plaintiff’s medico-legal experts, that is specialist in Plastic, Reconstructive and Hand Surgery, Mr Behan, who examined the plaintiff on a number of occasions between October 2003 and July 2008, and Consultant Physician (Vascular Disease), Dr Blombery, who examined the plaintiff once on 21 August 2008.
19 However, the earlier reports from Plastic and Reconstruction Surgeon, Professor Marshall AM (to the insurer) and from psychiatrists, Drs Kaplan, Honey and Epstein, were of assistance in assessing the consistency between the plaintiff’s reported symptoms and history. In addition to this, I accept the plaintiff’s submission that Professor Marshall’s report gives an earlier perspective of the extent to which the plaintiff suffered impairment from organic injury, whilst the psychiatric evidence confirmed that with the passage of time the plaintiff’s mental state had probably improved, that symptoms of Post-Traumatic Stress Disorder had subsided and (if Dr Kaplan’s assessment is correct) the plaintiff’s symptoms of depression and anxiety had disappeared.
20 Commencing with Professor Marshall’s only report, I note that he examined the plaintiff on 23 June 2003, nearly two years after the injury, and after the plaintiff had ceased a further period of employment as a meatworker with Scottsdale Meats.
21 Relevantly Professor Marshall reported:
(a) a successful replantation and “good recovery from the injury” although “the loss of movement and loss of sensitivity results in him being
unable to use the replanted part in a normal manner”. As submitted by the defendant without more this finding probably would not establish the statutory threshold for serious injury;
(b)
a loss of fine manipulative movement because of decrease in sensation of the pulp of the thumb;
(c)
his opinion that the loss of sensation in the thumb was unlikely to improve significantly. Given Mr Behan’s more recent findings (“On
palpation there is some sensation distally, but not full sensory return. De Mayo discrimination distance is measured at 11mm on the ulnar/cleft side but 15mm on the radial side, consistent with an anaesthetic thumb in this radial half. The patient can appreciate
pressure, however.”), there is current evidence of ongoing loss of
sensation; and(d) his opinion that because of sensitivity to cold it was unlikely that the plaintiff would return to work in a cold environment and that he was also unlikely to return to work as a sawyer in the meat industry. 22 As it turns out the plaintiff did return to work in the meat industry, both after the injury and again between late 2003 and 2006. Moreover, the affidavit of Mr Matthews, the plaintiff’s manager at Scottsdale Meats indicates that during the period of the plaintiff’s employment he was not aware of any amputation injury or of any problems affecting the plaintiff’s use of a Bandsaw.
23 I formed the view that during cross-examination concerning the content of Mr Matthews’ affidavit, at times the plaintiff’s responses were inconsistent and implausible. For instance, he eventually conceded that he had not told his manager about the amputation injury, or that he was scared of using the Bandsaw, but nevertheless added that he had complained to the owner of the company (with whom the plaintiff said he had a good rapport and to whom he spoke on the phone three to four times per week) about problems with his injured hand.
24 Accordingly, based on this evidence and the plaintiff’s post-injury work history, I was not satisfied that physical impairment of the plaintiff’s dominant right hand had been as great a problem in his work in the meat industry as claimed by him. Nevertheless, allowing for the ongoing restricted function of his dominant hand and the medical evidence in which it is accepted that the plaintiff probably experiences hypersensitivity to cold when handling meat, it is clearly preferable that he not return to (or stay in) a working environment that requires him to handle cold meats.
25 In four reports Mr Behan provides the most comprehensive medical record of the plaintiff’s post-operative progress in the five years since first examining the plaintiff in October 2003.
26 Relevantly, between October 2003 and July 2008, Mr Behan reported injury- related consequences arising from both neural dysfunction and restricted movement that amongst other things involved:
(a)
ongoing loss of sensation in the tip of the thumb, although currently Mr Behan thought the plaintiff could “appreciate pressure”;
(b)
“hyperhydrosis and sweatiness of the (R) palm, sometimes focussed on the (R) thumb, because of his problems with neuritic irritation of the collateral digital nerves. There is no indication yet of any sympathetic dystrophy.”
Subsequently, in 2006 Mr Behan also reported that, “[t]his still occurs
along the radial side down towards the base of the thenar eminence”
but by July 2008 he noted a reduction in this symptom reporting that
the hyperhydrosis or increased sweat response was “not as marked”.This evidence is to be contrasted with Dr Blombery’s report in August 2008, that, in addition to his complaint of excessive sweatiness, the plaintiff apparently informed him that he suffered aching pain radiating into his forearm and changes in temperature and colour in his right thumb (that is his thumb was cold and “often a purple colour”), a combination of features Dr Blombery thought diagnostic of complex regional pain syndrome type 1. I will say more about Dr Blombery’s evidence and diagnosis shortly
(c)
“abreaction/nerve jarring” in association with activities such as catching a football;
(d)
decreased pincer and tripod grip. At hearing the plaintiff was able to demonstrate a pincer movement. However, subject to his responses given during cross-examination, which help establish the degree to which this impairment affected him, I think it reasonable to accept Mr Behan’s observation in 2006 that the plaintiff “will always have a
poor pincer grip and dysfunctional thumb in terms of picking up small objects. Activities such as holding a pen, eating implements and other
social tasks will remain affected.”;
(e)
sensitivity to cold, a factor which probably militates against return to the plaintiff’s pre-injury employment in the meat industry. Nevertheless, Mr Behan distinguished between this employment and the plaintiff’s current work environment where he is able to wear protective gloves rather than the steal mesh glove worn as a meatworker;
(f)
his recommendation (in 2003) that the plaintiff return to his surgeon to discuss the need for tenolysis of the flexor pollicis longus tendon to address the plaintiff’s complaint of “catching in the forearm muscle belly area”. This is to be contrasted with the plaintiff’s response in cross- examination (which in all the circumstances of this case I found implausible) that until July 2008 when Mr Behan recommended scar revisional surgery no one had recommended further surgery to improve the function of this thumb or to relieve his symptoms; and
(g)
his recommendation in July 2008 that the plaintiff undergo reconstructive surgical revision to deal with hypertrophic scarring over the interphylangial joint of the right thumb which is:
“… still painful on contact and the patient still sometimes experiences localised radiating pain, indicating contact neuritic changes as a result of scarring in the vicinity of the radial digital nerve repair and the patient is hypersensitive to contact here … ”
In any event, at hearing the plaintiff conceded that he did not intend to pursue Mr Behan’s recent recommendation that he undergo surgical revision of his scar.
27 As I have already mentioned, after examining the plaintiff on one occasion in August 2008, and based on the plaintiff’s report of his symptoms (some of which had not previously been mentioned to Mr Behan), Dr Blombery diagnosed “complex regional pain syndrome, type 1, complicating traumatic amputation of the tip of the right thumb” and, amongst other things, opined that the plaintiff’s “prognosis for recovery at this stage is poor. I do not feel
that there will be any significant change in his level of disability in the
foreseeable future and he will have to live with his current limitations”.28 I have already noted the comments made by Mr Behan in his reports which suggest that he was mindful of any symptoms relating to “sympathetic dystrophy”. Indeed, in 2003 and July 2008 (a month before Dr Blombery made his report without reference to Mr Behan’s latest report), Mr Behan appears to have been satisfied that this was not an issue and (depending on whether this was based on observation or a report by the plaintiff) recorded that the increased sweat response was less marked.
29 Accordingly, whilst I accept that the plaintiff may from time to time experience the symptoms he reported to Dr Blombery on the strength of this report alone, and allowing for Mr Behan’s multiple examinations of the plaintiff, I was not satisfied that Dr Blombery’s diagnosis following one examination should be afforded any weight in determining this case.
The Pain and Suffering Consequences Alleged to Constitute “Serious Injury”
30 I have already mentioned a number of these in passing. In his opening, Senior Counsel summarised the consequences within a number of categories, all of which were addressed by the plaintiff either in his affidavit evidence or to a lessor extent in his evidence and responses to cross-examination at hearing.
31 As to the level of the plaintiff’s pain and his use of painkilling medication, I note the following matters.
32 General practitioner Dr Stesin’s clinical records confirm that on one occasion, 16 July 2004, he treated the plaintiff for his thumb injury and prescribed Tramal capsules. In his affidavit sworn in 2004 the plaintiff said that he
“… took Tramil [sic] to relieve the pain but it made me feel sick and I was prescribed Valium and from time to time I still take Panamax for pain. … I have fairly constant pain in my thumb radiating to my arm and my hand sweats and I have numbness around the base of the thumb in the pulp of the
thumb. ”.
33 In his second affidavit sworn in October 2006 the plaintiff relevantly reported:
“ … I have stopped using medications because I found that these did not provide effective relief for the ongoing pain which I suffer. I find that my symptoms are distinctly worse during the colder winter months and it’s also during these times that I notice more pain spreading up my right arm. … Another sensation which I have noticed on an ongoing basis is that my right hand sweats a lot. ”
34 Whereas by November 2006, some six weeks after commencing employment as a container hand, the plaintiff said “[t]his work requires me to load and
unload containers. … At the end of each day I have quite severe pain affecting my right forearm and now take nurofen to relieve this pain. I have also noted thickening of the scarring on my thumb. ”
35 However, by November 2008, when he swore his last affidavit, nearly 20 months after he commenced working as the storeman at the Coles Myers storage chiller, the plaintiff relevantly said:
“… My work largely involves me loading trucks and picking orders and by reason of the injury to my right thumb I do suffer constant pain when at work. …
… In all of my daily activities I continue to suffer constant variable pain in my right thumb. The pain is worse during the winter months at which time it radiates up into my right wrist and arm. … I try to avoid using medication save for when the pain is at more severe levels because I have found that the medication does not remove the pain but simply provides some temporary relief for what is a permanent problem. If I do take medication it is usually Neurofen [sic] and as I say I take such medication in order to take the edge off the pain rather than to lead to any lasting resolution of the pain.”
36 At hearing, amongst the other things, the plaintiff stated that despite wearing snow gear to protect him from the cold conditions in which he worked:
(a) he suffered from constant pain; (b) his hand regularly sweated; (c) his right hand gets “a lot colder than” his left hand; and (d) his thumb and right hand “goes a purpley reddy colour”. 37 In response to cross-examination about both the level of any pain and his use of painkilling medication, the plaintiff variously said:
(a)
when he placed his thumb on a stress ball supplied by the defendant’s counsel he felt pain “going up” his forearm but not at the point of amputation (that is the tip of his thumb) where he has no feeling;
(b)
this pain affected his handling of objects such as pens, balls and the like;
(c)
agreed that in the seven and a half years since his injury, apart from advice received from medico-legal surgeon, Mr Behan, he had not sought further treatment for any of his symptoms;
(d)
denied that this was because his symptoms were not sufficiently disturbing or distressing so as to warrant treatment;
(e)
confirmed that he took Nurofen from time to time and that in the two weeks prior to hearing he had taken Nurofen “[p]robably ten to 11 days”;
(f)
for the first time said that once or twice a month (at the rate of three or four tablets during the course of a day) he used Tramal prescribed for his mother who regularly travels to Melbourne from her home near Horsham. At hearing, I was informed that the plaintiff’s mother was present in Court, although she had not sworn an affidavit in support of this recent allegation;
(g)
agreed that since 2001, despite having been treated by his general practitioner and another general practitioner for other conditions, which included obtaining prescription medication to control his high blood pressure, he had not also sought prescription or other pain relief medication;
(h)
explained that in August 2008 he told Dr Blombery that his only medication was “Corvasal” for high blood pressure because the doctor asked him “for prescribed medication”;
(i)
agreed that he did not tell Dr Blombery that he took Nurofen, whilst also acknowledging that despite using Nurofen as a painkiller he could not recall telling psychiatrists, Drs Honey and Epstein, in 2003 and 2004 respectively (and as reported by them), that he was not using any medication;
(j)
said that on the morning of the hearing he had taken one Nurofen tablet;
(k)
somewhat confusingly denied that there were days when he did not take Nurofen; and
(l)
expressed uncertainty when he was asked whether the reports of the doctors that he did not take any medication for his thumb were wrong, but nevertheless acknowledged that their reports on this matter were inconsistent with his evidence;
38 As the summary of his evidence demonstrates, on the question of the frequency of the plaintiff’s use of painkilling medication (not to mention his alleged use of his mother’s prescription painkiller, Tramal), the plaintiff’s evidence was inconsistent and, as I have already mentioned, I was left with the impression that he probably overstated the frequency with which he took Nurofen or (for that matter) had recourse to his mother’s prescription medication, painkilling medication the plaintiff had previously sworn he stopped taking because it made him feel sick.
39 Nevertheless, as my discussion of the medico-legal evidence and the plaintiff’s current symptoms reveals, even if the plaintiff uses strong painkilling medication or non-prescription painkilling medication less frequently than alleged, this factor alone is not determinative of the issue of whether the plaintiff suffers from “constant” or chronic pain as a consequence of injury to his right thumb.
40 Indeed, having regard to all of the evidence, which over more than a seven and a half year period includes consistent reports of pain in association with the use of his right hand and exposure to cold conditions, I was satisfied that (and notwithstanding the plaintiff’s obvious reluctance to explore different surgical options which might both improve the function of his thumb and reduce the level of the pain suffered) the consequences of the plaintiff’s physical injury (particularly in his working environment) include probable regular pain in his thumb and/or forearm requiring the use of at least non- prescription painkilling medication. I was also satisfied that cold weather worsens the plaintiff’s level of pain, as does exposure of his thumb to cold conditions in his employment.
41 As to the allegation in his affidavit sworn in November 2006 that “whilst
working for the defendant I began favouring my left arm and shoulder for lifting and cutting meat. On 18 May 2005, I injured my left shoulder whilst working in this fashion whilst attempting to hang lamb legs after cutting. Prior to the injury to my thumb, this function would be undertaken using my right arm. I believe that the injury to which I have referred occurred by reason of favouring
my left side for work”, I am not satisfied that this statement reflects an accurate description of the cause of a work-related strain injury to the plaintiff’s left shoulder in May 2005.
42 Indeed, in response to cross-examination on this issue the plaintiff said:
(a) that typically lambs were picked up by hand by the legs and hung on a rail; (b) agreed that on this occasion having cut the back legs off a lamb he was lifting them to hang them up; and (c) agreed that at the time his left leg slipped causing his left shoulder to be pulled or forced backwards and his attendance on his general practitioner and a specialist for treatment of his shoulder injury. 43 These responses and the medical material concerning this injury indicate that this further allegation is unsustainable.
44 As to the plaintiff’s complaints of tenderness and pain if his thumb is knocked, this complaint is supported by the medical evidence I have already summarised and it represents a significant and ongoing consequence for this comparatively young plaintiff.
45 In his November 2008 affidavit the plaintiff provided a number of examples of the difficulties he said he experienced because of lack of sensation in the amputated area of his thumb. The first involved difficulty in holding a pen which made writing awkward. I note that on this issue in cross-examination the plaintiff:
(a)
agreed that his position as a storeman did not create “a great need to write”;
(b)
agreed that he did not have a problem recording matters he was required to record for work purposes;
(c) agreed that his writing is legible. 46 The second example given by the plaintiff involved small tools and cutlery because the impairment of his right hand had caused him to change his grip. At hearing the plaintiff confirmed that he holds his cutlery knife in the gap between his forefinger and thumb. However, having regard to his responses during cross-examination, it was apparent that since injuring his thumb the plaintiff had not tried to use his cutlery knife in a conventional way and that he was not able to offer any reason for now not doing so. Nevertheless, allowing for Mr Behan’s evidence concerning the plaintiff’s impaired pincer grip, I think it reasonable to accept that this will continue to have an adverse impact on his use of items, such as cutlery, for the foreseeable future.
47 The third example given by the plaintiff was that he could not flick through papers using his thumb. However, at hearing the plaintiff agreed that he could turn pages in the same way he did with his left hand and he appeared to also accept the proposition that his impaired right thumb did not cause any real problems for him in reading a paper.
48 During cross-examination the plaintiff was also taken to a number of pages copied from his Facebook site where he had posted photographs of himself in May, September and November 2008. All of these depict the plaintiff in social activities in which he demonstrated unrestricted use of his dominant right hand holding or gripping, for instance, a can/bottle or food items, such as an apple core.
49 As to the impact of his impairment on the plaintiff’s sporting and recreational activities, I note that in this regard the plaintiff’s evidence was principally focussed on how this affected his football game and to a lesser extent on its effect on other sporting activities such as indoor cricket, darts and fishing.
50 The plaintiff was cross-examined in some detail about his current ability to play football. Historically it seems that the plaintiff’s training for the Victorian Under 14s and Under 16s teams and his football playing was cut short following injury to his left knee requiring surgical reconstruction.
51 Indeed in his words the plaintiff did not “get around” to returning to playing football until 2000 when he said that he played in Division 2 of the Laverton Magpies Second 18 team as a full-forward and/or as a centre half-forward. Subsequently, the plaintiff continued to play at this level until he injured his thumb. However, in 2002 the plaintiff said that he returned to play football with the Reserves (Division 1) of the Seddon/Yarraville Football Team. In each of the years thereafter the plaintiff agreed that he continued to play in the positions of centre-half and/or full-forward in the first or second 18 for various teams in either Division 1 or 2, where he appears to have had some success as a goal kicker. For instance, the plaintiff agreed that in 2007 he was the lead goal kicker for the Laverton Magpies Club. In his most recent affidavit sworn in November 2008, the plaintiff relevantly said (at paragraph 5):
“ … I have continued to play football and am in Division 2 with the Laverton Magpies Football Team. I play at full forward and avoid attempting overhead marks because of the pain and strain which I suffer in my right hand as a result of my right hand a result of my right thumb injury. I tend to position myself so that I can take chest marks. When I do play football, my thumb and hand are heavily strapped so as to restrict the movement and also the damage which might be suffered through a knock to the thumb.”
52 Having regard to this evidence and the plaintiff’s responses in cross- examination (not to mention the medical evidence of hypersensitivity to contact), I am satisfied that impairment of the plaintiff’s dominant right hand, and in particular the risk of pain and further injury, such as bruising (“I have already bruised it a few times on marking”), inhibits the manner in which the plaintiff plays football, and this is so notwithstanding the use of heavy strapping to protect his thumb and hand.
53 At hearing the plaintiff said that before his injury he was not playing indoor or outdoor cricket. However, “about a year ago” he said that he returned to play indoor cricket for one to two seasons. Whilst the plaintiff agreed that he could continue to play indoor cricket, which involved batting, bowling and fielding, he also explained (through words and by indicating the area from below his thumb through to his wrist) that batting causing pain to travel up his thumb and into his forearm. This complaint is consistent with the “abreaction/nerve jarring” and the potential catching of the tendon previously identified by Mr Behan.
54 In his final affidavit the plaintiff also said at paragraph 6 that:
“ … I am no longer able to play darts and no longer go fishing because I cannot handle the finer manipulative tasks required in those activities”
55 When challenged in cross-examination to admit that he had been fishing (notwithstanding evidence given by him in 2006 that he did not go fishing) the plaintiff responded by saying “not really, no”.
56 However when the plaintiff was reminded that Senior Counsel had opened his case by informing the Court that the plaintiff continued to fish but found “that
very frustrating because he has great difficulty threading hooks and sinkers
onto fishing lines … ”, the plaintiff conceded that he had fished (albeit with other people who could thread the line for him), adding that because of the difficulties in threading the line he did not fish as often as before his injury. Nonetheless, the plaintiff also conceded that he fished with other people who could thread the line for him.
57 My impression, having heard his responses during cross-examination, is that the primary reason for reducing his fishing activities was not the impairment of the plaintiff’s right hand but his fear of “the hook getting stuck in my thumb”.
58 In response to questions about playing darts the plaintiff also said that when he was living at home and before his injury he used to play darts with his father “a fair bit”. However, in circumstances where the plaintiff said that he left home in about 2004 or 2005 and agreed with the proposition put to him that he could pick up a dart between “your fingers and your thumb like you are holding a can of whatever, and propel it forward” I have not given weight to this further allegation.
Serious Injury
59 I have read the decisions to which I was referred by the defendant. Clearly, each case must be decided on its own facts and by reference to the consequences of impairment or loss of a body function. Despite his tendency to inflate these consequences, the plaintiff has nevertheless satisfied me that, as a result of the traumatic amputation of the tip of his right thumb, he suffers permanent (that is likely to last into the foreseeable future) impairment of the function of his dominant right hand; and allowing for his evidence, Mr Behan’s opinion, and the pain and suffering consequences summarised above (which include an inability to return to work as a meat worker) I am satisfied that the consequences for this young plaintiff, when judged by comparison with other cases in the range of possible impairments or losses of body function, are fairly described as being more than significant or marked and as being at least very considerable.
60 In these circumstances I propose to make an order granting leave to the plaintiff to commence proceedings for damages in respect to pain and suffering consequences of serious injury.
61 I will hear from the parties as to the making of appropriate orders.
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