Kumar v CFM Fans Pty Ltd
[2024] VCC 1571
•18 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-04379
| NAVEEN KUMAR | Plaintiff |
| v | |
| CFM FANS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2024 | |
DATE OF JUDGMENT: | 18 October 2024 | |
CASE MAY BE CITED AS: | Kumar v CFM Fans Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1571 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the finger – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 325
Cases Cited:Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Davidson v Transport Accident Commission [2015] VSCA 12; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Woollacott | Slater and Gordon Ltd Lawyers |
| For the Defendant | Mr B McKenzie | IDP Lawyers |
HER HONOUR:
Introduction
1Mr Naveen Kumar, the plaintiff, is a 31-year-old foreman/production supervisor. He seeks leave to issue proceedings claiming pain and suffering damages for an injury to his right hand pursuant to paragraph (a) of the definition of “serious injury” within the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the Act’). The plaintiff is right-hand dominant.
2On 23 September 2019, the plaintiff was grinding the shaft of a motor using emery paper whilst employed by CFM Fans Pty Ltd (“the defendant”). Whilst grinding the shaft of the motor, the emery paper became wrapped around the motor, causing his right hand to be pulled into the machine. The plaintiff pulled his hand away and noticed his middle finger was damaged and bleeding heavily (“the incident”).
3Mr Woollacott of Counsel appeared on behalf of the plaintiff at the hearing and Mr McKenzie of Counsel appeared on behalf of the defendant.
Issues in Dispute
4The defendant accepted that the plaintiff suffered a compensable injury to his right hand in the incident.
5The defendant contested the proceedings on the issue of “range”.
6The legal principles are well known and were not in issue.[1]
[1]Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1.
7For the reasons that follow, I find that the plaintiff has satisfied his onus of establishing that the permanent impairment consequences of his right-hand injury can be fairly described as more than “significant” or “marked” and “at least very considerable” when compared to the range of possible impairments.[2]
[2]Section 325(2)(b) and s325(2)(c) of the Act.
Background
8The plaintiff lives with his wife and four-month-old baby.
9He was born in India where he completed high school, obtained a diploma and a bachelor’s degree in mechanical engineering.
10He moved to Australia in 2017 and worked briefly as a labourer before securing employment with the employer in November 2017 as a full-time mechanical engineer.
11Following the incident, the plaintiff attended the emergency department of Dandenong Hospital. He had surgery and remained an inpatient until 25 September 2019.
12Despite being certified fit to return to modified duties, the plaintiff was not provided with any work. His employment was officially terminated by the defendant in March 2020.
13He received weekly payments until May 2021. In May 2021, he commenced work with Encore Sheet Metal Pty Ltd as a mechanical engineer. He ceased in November 2022 after a pay dispute.[3]
[3]Transcript (“T”) 10, Line/s (“L”) 7-9; Plaintiff’s Court Book (“PCB”) 12, paragraph [13].
14The plaintiff then worked as a motor mechanic at a friend’s business in Bayswater for a few weeks.[4]
[4]T10, L15-31 – T11, L1-8.
15In November 2022, the plaintiff commenced with McKean Sheetmetal Fabrication Pty Ltd as a full-time mechanical engineer. He ceased in that role in July 2023 due to poor air quality and smoke in the factory.
16The plaintiff obtained a job at Pump Engineers as a full-time service technician. He ceased that job due to chemicals and paint thinners in the products causing stomach pains.
17As can be seen from the above summary, the plaintiff left various jobs because of unrelated matters. It was not suggested that he has left any subsequent job because of problems with his right hand.
18In March 2024, the plaintiff commenced with Turama Industries Pty Ltd as a foreman/production supervisor. He currently remains employed with Turama Industries Pty Ltd on a full-time basis.
The evidence
19The plaintiff tendered x-rays of the right hand taken on 23 and 25 September 2019,[5] an operation note and discharge summary from the Dandenong Hospital dated 23 September 2019,[6] a report from Ms Jessica Godwin (treating hand therapist) dated 24 August 2020,[7] and a report from Dr Mark Chan (General Practitioner, “GP”) dated 19 January 2021.[8] There were no reports from the plaintiff’s treating surgeon.
[5]Plaintiff Exhibit P3, PCB 23-24.
[6]Plaintiff Exhibit P4, PCB 25-27.
[7]Plaintiff Exhibit P5, PCB 28-31.
[8]Plaintiff Exhibit P6, PCB 32.
20In relation to medico-legal material, the plaintiff relied upon two Opinions and Reasons of a Medical Panel dated 4 May 2022 and 16 September 2022,[9] as well as medico-legal reports from Dr John Anstee (plastic and reconstructive surgeon) dated 13 May 2024[10] and Mr John Crock (plastic and reconstructive surgeon) dated 21 May 2024.[11]
[9]Plaintiff Exhibit P7, PCB 33-47.
[10]Plaintiff Exhibit P8, PCB 81-93.
[11]Plaintiff Exhibit P10, Defendant’s Court Book (“DCB”) 30-34.
21The plaintiff tendered an Affidavit of his wife, Priya Rani, which was sworn on 15 August 2024.[12]
[12]Plaintiff Exhibit 3, PCB 20-22.
22The defendant tendered a report of Dr Damon Thomas (plastic and reconstructive surgeon) dated 22 December 2021,[13] as well as clinical notes from the Dandenong Superclinic covering the period 30 November 2019 to 1 July 2021,[14] an unsigned Certificate of Capacity from Dr Chan dated 1 July 2021[15] and a surveillance video.[16]
[13]Defendant Exhibit D2, DCB 24-29.
[14]Defendant’s Exhibit D3, DCB 35-51.
[15]Defendant’s Exhibit D4, DCB 58-59.
[16]Defendant’s Exhibit D1.
Radiology and operation notes
23The x-ray of 23 September 2019 confirmed the plaintiff had dislocated the right middle finger proximal interphalangeal (“PIP”) joint and fractured the distal phalanx.
24The plaintiff had surgery on 23 September 2019 involving a debridement, volar plate arthroplasty and repairs of the radial collateral ligament, radial digital artery, and digital nerve.[17]
[17]Plaintiff’s Exhibit P4, PCB 25-27.
25A further x-ray taken on 25 September 2019 confirmed anatomic alignment of the proximal interphalangeal joint with an anchor screw noted.[18]
[18]Plaintiff’s Exhibit P3, PCB 24.
Treating practitioners
Ms Jessica Godwin, Hand Therapist
26Ms Godwin prepared a report at the request of the plaintiff’s solicitors dated 24 August 2020. Ms Godwin saw the plaintiff for the first time on 19 November 2019 and at the time of her report he remained under her care.
27Ms Godwin recorded that at the time of his initial presentation, the plaintiff had developed a fixed flexion deformity of his proximal interphalangeal joint, as well as extensive scar adhesions and reduced sensation. He initially attended twice a week but at the time of the report was attending once a fortnight for massage, strengthening exercises and education.
28Ms Godwin opined that the plaintiff had experienced a good functional recovery but had a reduced range of movement, reduced strength, and hypersensitivity in the right hand/finger. She said it was impossible to know whether he would make a full recovery. She considered that he would benefit from continued treatment.
Dr Mark Chan, General Practitioner (“GP”)
29Dr Chan prepared a report dated 19 January 2021, addressed “To Whom It May Concern”. Dr Chan confirmed that the plaintiff first attended the Dandenong Superclinic on 30 November 2019 for a post-surgical rash on his right finger. Dr Chan first examined the plaintiff on 17 January 2020.
30Dr Chan confirmed that in January 2021, the plaintiff reported mild swelling and tenderness over the joint of the right middle finger, slightly restricted range of motion and mild pain with full extension and flexion of the finger.
31Dr Chan considered the plaintiff’s prognosis was best commented upon by a surgeon. It was his view that it was likely he would have ongoing mild pain and swelling, for at least a further 6 months. He considered that the symptoms could be managed with simple analgesia, activity modification and hand therapy.
Plaintiff’s medico-legal material
Medical Panel Opinion and Reasons dated 4 May 2022
32The plaintiff tendered the Medical Panel Opinion and Reasons dated 4 May 2022. The Panel consisted of a GP and Plastic Surgeon. The Panel was asked to conduct an AMA assessment, but the Panel did not do so as it considered the plaintiff’s condition was not stable as the plaintiff said he intended to seek an opinion as to whether further surgery would assist.
33The Panel conducted a clinical examination and opined that the plaintiff had a persistent dysfunction of the right middle finger as a result of a fracture of the distal phalanx, dislocation of the proximal interphalangeal joint, as well as injuries to the radial collateral ligament, radial digital artery, and radial digital nerve.
Medical Panel Opinion and Reasons dated 16 September 2022
34The plaintiff tendered the Medical Panel Opinion and Reasons dated 16 September 2022. The Panel consisted of an Occupational and Environmental Physician and Plastic Surgeon.
35On this occasion, the Panel found the plaintiff’s condition was stable as he had decided not to obtain further surgical opinion. The Panel provided an AMA assessment which is not relevant to the current serious injury application.
36The Panel’s clinical examination revealed:
“The workers handgrip for each hand was tested and found to have a greater than 20% variability in the testing performed on the right hand. The colour and temperature of the right hand was normal. The finger was well perfused. There was mild swelling of the proximal interphalangeal joint of the right middle finger. There was ulnar deviation of 15° at this joint.
Testing range of movement of the joints of the right middle finger revealed hyperextension of 10° and flexion of 70° for the metacarpophalangeal joint, extension lag of 30° and flexion of 80° for the proximal interphalangeal joint and extension of 0° and flexion of 40° for the distal interphalangeal joint. The middle finger was noted to override the ring finger when making a fist with the right hand. There was some instability and crepitus in the proximal interphalangeal joint.
Two-point discrimination was 15 mm along the whole of the radial side of the right middle finger. On the ulnar side of the finger the two-point discrimination was greater than 15 mm along the whole of that side of the right middle finger.
There was a U-shaped scar over the volar aspect of the right middle finger extending from the palmar crease to the proximal interphalangeal joint crease. This measured 2.5 cm x 5 cm. The scar was well healed and nontender. Tinel’s sign was negative. There was hypersensitivity felt by the worker when palpating the scar.”
37The Panel diagnosed persistent dysfunction of the right middle finger following the work incident with dislocation and fractures, as well as ligament, nerve, and artery damage, surgically treated with associated scarring.
Mr John Anstee, Plastic and Reconstructive Surgeon
38Mr Anstee examined the plaintiff at the request of his solicitors on 1 May 2024. He diagnosed a forced rotation injury of the right middle finger resulting in rupture or detachment of the radial collateral ligament, the volar plate, division of the flexor digitorum superficialis tendon and damage to or division of the radial digital artery and radial digital nerve.
39Mr Anstee opined that whilst the injury had been well treated, the plaintiff was left with abnormal motion in each joint of the right middle finger with ulnar deviation and ulnar rotation. Mr Anstee was doubtful that further treatment would make a difference to his condition and considered the prognosis was poor. He opined that the plaintiff would develop degenerative arthritis in the proximal interphalangeal joint at an earlier age.
Mr John Crock, Plastic and Reconstructive Surgeon
40The plaintiff tendered a report from Mr Crock dated 21 May 2024. Mr Crock examined the plaintiff on 7 May 2024 at the request of the defendant’s solicitors.
41Mr Crock diagnosed a right middle finger avulsion, open joint dislocation with damage to the skin, soft tissues, ligaments, and other supporting structures of the right finger. He considered that the plaintiff had been left with a flexion deformity of the digit, altered sensation on the radial aspect of the digit, reduced range of movement, deviation of the digit and reduced grip strength. There was a 25-degree flexion contracture of the proximal interphalangeal joint, a 15-degree ulnar deviation of the middle finger at the proximal interphalangeal joint and reduced flexion of 80 degrees within the finger.
42Mr Crock conducted grip strength testing using a Jamar dynamometer. After three successive tests, the strength on the right hand was 18 kilograms whilst the strength on his left non-dominant hand was 41 kilograms which represented a 30-60 percent loss of strength in the right hand.
43Mr Crock considered the plaintiff had a guarded prognosis, as he was at high risk of post-traumatic osteoarthritis in the middle finger which was a difficult condition to treat. Mr Crock commented the plaintiff may require increased dosages of painkillers in the ensuing years to assist with the condition.
The Defendant’s medico-legal material
Mr Damon Thomas, Plastic and Reconstructive Surgeon
44Mr Thomas’ report is dated 22 December 2021, the same day that Mr Thomas examined the plaintiff. The examination was at the request of the WorkCover agent. The purpose of the examination was for an impairment assessment which is not relevant to the current serious injury application.
45Mr Thomas diagnosed a torsional injury to the right middle finger with a proximal interphalangeal joint dislocation with damage to the volar plate, radial collateral ligament, fracture to the distal phalanx, avulsion of the radial digital nerve and artery and flexor digitorum superficialis. Mr Thomas considered the condition was stable and no deterioration nor improvement was expected.
Conclusions regarding the medical evidence
46The medical evidence is largely consistent. It is significant that all doctors accept that there are ongoing restrictions caused by the hand injury. Mr Anstee and Mr Crock both raise the prospect of early osteoarthritis.
47The parties did not ask me to inspect the plaintiff’s right hand when he was in the witness box. Mr Anstee included photographs of the plaintiff’s hand in his report. The photos include a photograph depicting a bent middle finger which overlaps the ring finger when in a fist – as can be seen below:
Impairment consequences
Work
48During cross-examination, the plaintiff said that after the work injury he completed a Certificate III in Automotive Work which he commenced in 2020 and completed sometime in 2021.[19] He obtained a truck driving licence in 2021.[20]
[19]T13, L15-31.
[20]T14, L23-26.
49The plaintiff said he attended Dr Chan on various occasions throughout 2021 to discuss his progress and return to work. Records from the Dandenong Superclinic were tendered, and the plaintiff was cross-examined regarding a number of attendances at the clinic in 2021.[21]
[21]Defendant’s Exhibit D3, DCB 35-51.
50The plaintiff accepted in mid-2021 he reported to Dr Chan that he had returned to work and that his finger was not causing him significant issues. However, the plaintiff maintained this was within the context of his employment with Encore Sheet Metal Pty Ltd where his duties were light, computer-based tasks.[22]
[22]T16, L1-26.
51The defendant also put to the plaintiff that Dr Chan certified him as being fit for full-time, pre-injury employment with no modifications, as per a Certificate of Capacity dated 1 July 2021.[23] This Certificate of Capacity was not signed by Dr Chan or the plaintiff. The plaintiff accepted he did not require any modifications at that time, again explaining this was within the context of his duties at Encore Sheet Metal Pty Ltd.[24]
[23]Defendant’s Exhibit D4, DCB 58-59.
[24]T23, L5-7.
52The plaintiff confirmed he was currently employed full-time by Turama Industries Pty Ltd as a foreman/production supervisor. His duties involve managing a team, allocating tasks and overseeing work and, from time to time, using power tools.[25] The plaintiff acknowledged the role was still in the realm of the work he trained to do as a mechanical engineer, that he enjoyed the work and that it was in essence a promotion.[26] He admitted to performing limited overtime with Turama Industries Pty Ltd.
[25]T24, L27-30.
[26]T24, L24-26.
Pain, dexterity, and grip strength
53The plaintiff deposed to experiencing intermittent pain, discomfort, difficulty bending, swelling, hypersensitivity and a locking sensation in his right middle finger. The pain would increase in intensity and frequency depending on the activities he performed. He said that his pain generally was worse at the end of a working day or after performing tasks involving gripping and bending of the finger.[27] The plaintiff said he felt pain whilst using tools at work, particularly those that cause vibrations, and he was concerned about his ability to continue working in the industry.
[27]Plaintiff’s Exhibit 1, PCB 15-18.
54He was not challenged on these matters.
Treatment and medication
55Since the surgery, the plaintiff has had limited treatment on his right middle finger. He ceased attending Ms Godwin sometime in 2020 and has not returned to any physical therapies since 2020. He saw Dr Chan once in 2024 to request his medical records but has otherwise not been examined by Dr Chan for the right middle finger since approximately July 2021.[28]
[28]T39, L12-18.
56Since the work injury, the plaintiff attended a medical clinic in Cranbourne for unrelated health matters. He was unable to recall when these attendances occurred. He confirmed that he did not seek any treatment for his right middle finger from that clinic.[29]
[29]T41, L24-29.
57The plaintiff said in his second Affidavit, sworn 14 August 2024, that he had recently attended a doctor due to severe pain in his right middle finger after several days of cold weather. In cross-examination, he said that the clinic was in Hallam.[30] No records were tendered from the clinic.
[30]T39, L22-31 – T40, L1-11.
58Other than taking pain medication for a short period after the initial surgery, the plaintiff has not taken any pain medication for the finger. He said this was due to the fact that he preferred to use natural remedies, such as teas, rather than a lack of pain.[31]
[31]T43, L20-31 – T44, L1-16.
Working on cars
59In his second Affidavit, sworn on 14 August 2024, the plaintiff said he was undertaking extra work servicing cars on the weekends. He said he was limited in the tasks he could perform and would ask his friends to help him out with any heavier jobs. He explained he would prefer not to carry out such work but that his wife was on maternity leave, and they were saving for a new house.[32] The plaintiff deposed he was continuing to perform such mechanical work at the time he swore the Affidavit in August 2024.
[32]Plaintiff’s Exhibit P1, PCB 18, paragraph [8].
60During cross-examination, the plaintiff gave evidence that he ceased such work in approximately October 2023, around the time his wife fell pregnant.[33]
[33]T26, L14-26.
61When questioned about this apparent inconsistency, the plaintiff said he had ceased doing heavy mechanical work in October 2023, once his wife could no longer assist him with the heavier tasks. He explained he had continued doing lighter tasks, such as running diagnostics, as a favour to friends when they asked.[34]
[34]T27, L1-9.
62The defendant played surveillance to the Court taken of the plaintiff on 23 and 24 March 2024. During cross-examination, the plaintiff admitted he was observed on 24 March 2024 to attend a residence and undertake work on a car. The tenor of his evidence was that he was not performing any sort of heavy mechanical work. Rather, he was installing off-road lights, as a favour to his friend, who was seen on the footage observing him carrying out the work.[35] The plaintiff maintained he was not paid for the work and that at one stage his friend had to assist him with a clip that he could not get off due to his right finger injury.
[35]T34.
63The plaintiff advised he was unsure how many times he had performed light work on cars for his friends since October 2023 but maintained he had not performed any sort of heavier, mechanical work since his wife fell pregnant.
64I had the opportunity to view the surveillance in the Court room. Separately, I watched it again for the purpose of providing these reasons.
65The following is a summary of my observations:
(a) 23 March 2024 – one minute and 40 seconds of non-continuous footage was shown. The plaintiff drove a car a short distance and walked into a house;
(b) 24 March 2024 – approximately 36 minutes of non-continuous footage was shown. The plaintiff was in the front garden of a house and was seen working on a car. The view of the plaintiff was obscured by another parked car or by people walking past the premises. On a number of occasions, the plaintiff had his back to the camera. It was difficult to clearly see the plaintiff’s right hand. On one occasion he was observed holding a small soldering iron in his right hand. He did not appear to be using a normal grip on the soldering iron but rather he held it with his index and middle fingers extended. On another occasion when wiping his nose with his right hand, his hand appeared clawed with the middle finger extended over the ring finger (in a similar way to that depicted in the photograph attached to Mr Anstee’s report). The limited views of the plaintiff’s right-hand activities were consistent with his evidence.
66The video surveillance was innocuous. It did not show the plaintiff undertaking any strenuous activity.
67I place little weight on the surveillance. It did not impugn the plaintiff.
Cricket and Carrom Board
68The plaintiff deposed that he grew up playing cricket in India, and after moving to Melbourne he continued to play cricket socially with friends every Sunday. This was an activity he enjoyed and was a way for him to meet and maintain friends.
69He deposed that after the work incident, he tried to hold the cricket bat, bowl a cricket ball, and take a catch on one occasion but this aggravated his pain. He has not returned to cricket since.[36]
[36]Plaintiff’s Exhibit P1, PCB 14, paragraph [20].
70During cross-examination, it was put to the plaintiff that he reported to Mr Anstee that he had not played cricket since August 2018, well before the injury in September 2019. The plaintiff’s evidence on this point was confusing but he appeared to suggest that what he told Mr Anstee was not accurate.[37]
[37]T48, L22-31 – T49, L1-2.
71In re-examination, he clarified that when Mr Anstee asked him, he had not been able to remember the date he ceased playing cricket. He said that Mr Anstee told him that he had to give a date, so he nominated August 2018 even though it was not an exact date.[38]
[38]T57, L8-25.
72It was also put to the plaintiff during cross-examination that he reported to Mr Thomas in December 2021 that he could play cricket with reduced capacity. The plaintiff denied this.[39]
[39]T49, L19-31 – T50, L1-21.
73The plaintiff also deposed to being unable to partake in Carrom Board, a game he previously enjoyed with his wife and friends. The game involved flicking a disc across the board, and he could no longer play due to the finger injury. It was put to the plaintiff that he could use an alternative finger to play the game. He accepted this but said to do so caused him pain in the right middle finger and he denied that he still played the game.[40]
[40]T50, L22-31 – T51, L1-3.
Relationship with wife and baby
74The plaintiff deposed that his right middle finger injury impacted upon his sexual relationship with his wife. He was challenged about this during cross-examination but maintained his evidence on this point and the matter was not taken any further.[41]
[41]T51, L17-22.
75The plaintiff also deposed to difficulty holding and soothing his young baby.[42] During cross-examination, he also said he had difficulty bathing the baby due to pain whilst his finger was in hot water. He was challenged as to whether he would put his baby in hot water. In response, he appeared to suggest that the hypersensitivity of his finger meant that even warm water caused him pain.[43]
[42]Plaintiff’s Exhibit P1, PCB 18, paragraph [12].
[43]T53, L3-10.
Domestic duties
76The plaintiff said that his wife performed domestic duties he could not do. He accepted however that he did still help around the house. An example was his wife would do the cooking and he would then put the dishes and utensils she used in the sink for her to wash,[44] or that he would clear away the table after a meal.[45]
[44]T53, L23-27.
[45]T57, L26-31 – T58, L1.
The plaintiff as a witness
77The defendant did not submit that credit or reliability of the plaintiff played a significant role in this case. Rather, the defendant relied upon the surveillance to suggest there were inconsistencies in the plaintiff’s evidence as to the nature of the tasks he was undertaking as a mechanic and the dexterity of his right hand.
78I do not accept this submission given my findings on the surveillance.
79Having seen the plaintiff in the witness box and listened carefully to his evidence, I formed the view that it was possible that the plaintiff had less English-language capability than it appeared. From the content of some of his answers in oral evidence it appeared to me that he may have misunderstood what was being asked. One example of this was when he last attended Dr Chan. The plaintiff said he last attended Dr Chan in 2024. It transpired that his last attendance on Dr Chan for treatment was in 2021 and that when he attended Dr Chan in 2024 it was for the purpose of obtaining his medical records.[46]
[46]T20-21.
80The plaintiff presented as a reasonably straightforward witness. He readily accepted many matters put to him in cross-examination and generally made appropriate concessions.
81However, I find that he tended to overstate minor difficulties with his finger. There were some unsubstantiated aspects of his evidence, such as his evidence regarding the mechanical work undertaken at home and his recent attendance at the Hallam clinic. The matters were relatively minor.
82Despite the inconsistencies referred to above, I generally accept his account of his symptoms and limitations.
The plaintiff’s wife
83The plaintiff relied on an Affidavit sworn by his wife, Priya Rani, on 15 August 2024. Her Affidavit was supportive of her husband’s claim.
84Ms Rani referred to the following matters which she observed:
· Her husband’s middle finger appears swollen regularly
· He complains to her about pain
· He has difficulty handling items with his right hand
· He has reduced his involvement in cooking
· She now does most of the cleaning. This had been a shared activity prior to the work injury.
85Ms Rani was not required for cross-examination. Her evidence was largely consistent with the evidence of the plaintiff and I accept it.
Defendant’s submissions
86The primary submission for the defendant was that when compared to the range of other possible impairments of the hand, the plaintiff’s consequences could not fairly be described as at least very considerable, in reference to TTB SMS Pty Ltd v Reading.[47]
[47][2020] VSCA 203.
87The defendant pointed to the plaintiff’s admission that the pain was not constant, as well as the lack of treatment and medication, as evidence that the condition of the right middle finger was not significant.
88The defendant submitted the plaintiff had retained a significant capacity for employment as evidenced by the fact that he had performed work in the open labour market for a series of employers post-injury.
89The defendant noted that none of the plaintiff’s post-injury jobs ceased because of the right middle finger injury.[48] It was also submitted that the plaintiff admitted he was still working in his chosen field and that he enjoyed his work, meaning this was not an application where the plaintiff’s career had been closed off to him.
[48]T71, L10-15.
90In terms of servicing cars and playing cricket, Mr McKenzie submitted the plaintiff’s evidence on these issues was inconsistent and that the Court should find that the plaintiff had retained capacity for such activities.
Plaintiff’s submissions
91Counsel for the plaintiff accepted there were a number of factors which at first glance would appear to go against the plaintiff but that he was ultimately a stoic man who had done his best to get on with his life after the injury.
92In terms of the medical evidence, Mr Woollacott accepted there was a lack of treatment and medication currently but submitted the plaintiff did not take medication due to what the plaintiff said were cultural reasons, as opposed to a lack of pain. Mr Woollacott submitted that as the plaintiff had been advised that further surgery was not indicated, there was no need for him to continue attending his surgeon or other specialists.
93It was submitted that there was clear evidence the plaintiff was at risk of developing osteoarthritis in the future, which would require increasing analgesia.
94Counsel for the plaintiff acknowledged there were inconsistencies in the plaintiff’s evidence, regarding playing cricket and servicing cars, but maintained the plaintiff was not challenged on the key matters, relating to pain, swelling, reduced range of movement, altered sensation, reduced grip strength, and locking of the middle right finger. It was said that each of the tendered medical reports provided objective evidence of persistent symptomology and this evidence should be accepted.
95Finally, the plaintiff submitted the plaintiff’s age, of 31 years, was a factor that could be considered when determining whether the claimed impairment consequences met the relevant threshold, particularly in circumstances where there was medical evidence to suggest his condition would worsen with time.
Analysis of consequences
96An impairment is not to be held to be serious unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.
97The Court must not only consider what has been lost but also what has been retained.
98When considering whether a plaintiff’s consequences meet the serious injury threshold, it is relevant to consider the plaintiff’s life expectancy and the likely period for which that plaintiff will continue to experience those consequences.[49]
[49]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [39] and Davidson v Transport Accident Commission [2015] VSCA 12 at paragraph [50].
99As per Ashley JA and Beach AJA in Stijepic v One Force Group Aust Pty Ltd & Anor:[50]
“All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”
[50][2009] VSCA 181 at paragraph [43].
100As such, the plaintiff’s life expectancy is one of the factors I can consider in determining whether his consequences meet the serious injury threshold.
101The plaintiff was 26 years old at the time of the incident in 2019 and is now aged 31. He can therefore be fairly described as a young man.
102I accept that the plaintiff will continue to experience painful symptoms in his right hand and curtailment upon enjoyment of his life for the foreseeable future and that such consequences may persist for decades.
103I accept the submissions made by the plaintiff that he was not challenged on matters such as the level of pain and reduced grip. Therefore, I accept his unchallenged evidence that the impairment consequences to him include:
· daily pain which is worse at the end of the day
· swelling, numbness, and hypersensitivity
· a reduced range of movement in the finger;
· his middle finger locks approximately once per week which requires him to unlock it by twisting it and that activity also causes acute pain
· interference with sporting activities and intimate relationships.
104The plaintiff has not had any treatment for his finger injury since ceasing hand therapy in June 2020. Although he said he saw a GP shortly before the hearing, there is no evidence that he had consulted a GP with respect to difficulties associated with his finger for several years. No treatment is planned, although it is noted that Ms Godwin considered ongoing hand therapy was warranted in her report.
105Despite my finding that the plaintiff had a tendency to overstate matters, I have had regard to the objective medical opinions. In particular, I accept the opinions of Mr Anstee and Mr Crock that it is likely that the plaintiff will develop early osteoarthritis. Mr Anstee was unequivocal in his opinion in this regard and Mr Crock said there was a high risk that he would develop post-traumatic osteoarthritis. Given the plaintiff’s age, this is a significant factor to be considered.
106In the exercise of the value judgment required of me, I find that this is a borderline case. The evidence regarding the development of osteoarthritis is sufficient to put this case over the line.
107I am satisfied that the impairment consequences of the plaintiff’s injury can fairly be described as “more than significant or marked and as being at least very considerable” when compared to the range of possible impairments.
Conclusion
108The plaintiff’s application is granted.
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