Lam v Bayside Flashing and Ventilations Pty Ltd
[2014] VCC 2036
•5 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-02268
| HAN LAM | Plaintiff |
| v | |
| BAYSIDE FLASHING & VENTILATIONS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 October 2014 | |
DATE OF JUDGMENT: | 5 December 2014 | |
CASE MAY BE CITED AS: | Lam v Bayside Flashing & Ventilations Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2036 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – amputation of the distal phalanx of his left index finger – paragraph (a) and paragraph (b) of “serious injury” – pain and suffering only – relevant principles
Legislation Cited: Accident Compensation Act 1985, s134AB(16(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sabo v George Western Foods [2009] VSCA 242; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Dwyer v Calco Timbers (No 2) [2008] VSCA 260
Judgment: Leave granted to the plaintiff to bring common law proceedings in respect of a left index finger injury suffered on or about 8 June 2011.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G J Coldwell | Advice Line Injury Lawyers |
| For the Defendant | Mr P B Jens | Minter Ellison |
HIS HONOUR:
1 By way of Originating Motion issued on or about 3 May 2013, Han Lam (“the plaintiff”), seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings to recover damages for an injury to his left index finger suffered by him during the course of his employment with Margeroff Nominees Pty Ltd (“the defendant”) on 8 June 2011.
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s134AB(37) of the Act.
3 The plaintiff gave evidence and was cross-examined. The parties tendered various documents.[1]
[1]See Annexure A
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
5 The plaintiff relies on paragraphs (a) and (b) of the definition of “serious injury” contained in s134AB(37) of the Act[3] which reads:
“Serious injury means –
(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement;
… .”
[3]Transcript (“T”) 4, Line (“L”) 3–5
6 The part of the body said to be impaired or disfigured, for the purposes of paragraphs (a) and (b), is the left index finger.
7 In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a)“the injury” suffered by him arose out of or due to the nature of employment with the defendant on or after 24 October 1999;[4]
(b)“the injury” and resulting impairment must be “permanent”. That is, permanent in the sense that it is “likely to last for the foreseeable future;[5]
(c)the “consequences” of the injury in relation to “pain and suffering” must be “serious”. That is, the impairment or loss of body function or, alternatively, disfigurement is “when judged by comparison with other cases in the range of possible impairment … or disfigurements … may be fairly described as being more than significant or marked, and as being at least very considerable”.[6]
Such requirement is sometimes referred to as the “narrative test”.
[4]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[5]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [33]
[6]See s134AB(38)(b) and (c) of the Act
8 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) and/or paragraph (b) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[7]
(b)must make the assessment of “serious injury” at the time the application is heard;[8]
(c)must give reasons to disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application;[9]
(d)notes that it has been asserted that the question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[10]
[7]See s134AB(38)(h) of the Act
[8]See s134AB(38)(j) of the Act
[9]See generally Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[36]
[10]See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Western Foods [2009] VSCA 242 at paragraph [67]
The issues
9 Counsel for the defendant informed the Court[11] that there was no issue that the plaintiff suffered a compensable injury resulting in the amputation of his distal phalanx of his left index finger. Clearly, there was no issue that there was some permanent impairment giving rise to some consequences. The issue was whether such consequences satisfied the narrative test, whether it be under paragraph (a) or (b) of the definition of “serious injury”.
[11]T15, L16–23
The evidence of the Plaintiff
10 The plaintiff gave evidence that the contents of his affidavits sworn on 18 December 2012,[12] 9 August 2013,[13] 25 October 2013[14] (which is identical to the affidavit sworn on 9 August 2013) and 1 October 2014[15] are “true and correct”.[16]
[12]Exhibit 1, Plaintiff’s Court Book (“PCB”) 17
[13]Exhibit 1, PCB 22
[14]Exhibit 1, PCB 28
[15]Exhibit 1, PCB 34
[16]T16, L29
11 With the leave of the Court, some further evidence-in-chief was given by the plaintiff in relation to his current employment. The plaintiff confirmed that such employment will cease at the end of the year for about a month, and he did not know whether he would be re-employed, but in any event, will continue to look for work. He has been employed by LJM Marketing Services for over a year.
12 By way of his first affidavit, the plaintiff deposes that he was a then forty-year-old[17] married man with one three-year-old daughter.
[17]Born January 1972
13 The plaintiff was born in Cambodia and speaks Khmer. He describes his ability to speak English as “basic” and that his English literacy is “poor”. In Cambodia, he completed high school and started a medical degree at university, which was not completed. He migrated to New Zealand in around 1996, where he worked in a plastics factory for a couple of years. He then migrated to Australia in around 2000, where he worked in a variety of casual jobs including factory work and cleaning. On 4 February 2002, he injured his right, middle and index fingers when operating a machine. He made a WorkCover claim and was off work for more than a year. He describes that he has some restriction in bending his right fingers, but the injury has “largely resolved and causes me no pain”.
14 On returning to work in November 2003, the plaintiff worked in a number of different roles, including work in bakeries and in a food factory, and then for an air-conditioning company bending steel for boxes.
15 The plaintiff described himself as “right-hand dominant”, but with good use of his left hand to the extent that he was able to write with his left hand prior to the injury. In particular, he was born with the abnormality of having two thumbs on his right hand.
16 The plaintiff commenced employment with the defendant in early June 2011 as a full-time machine operator. Some three days after commencement, he suffered the injury. He describes the circumstances of such injury in the following terms:
“On 8 June 2011 I was working on a folding machine folding lengths of steel with another employee ‘Billy’. At about 7pm we carried a length of steel metal to the folding machine. I was standing at one end of a steel sheet and Billy was operating a machine some metres away. We were folding a short edge of steel. I fed the steel into the machine holding the steel sheet in place with my hands. While my left hand was still in the machine Billy operated the machine without warning. The blade lowered quickly. My hand became jammed and my left index finger was crushed by the steel.”[18]
[18]Exhibit 1, PCB 19
17 The plaintiff was conveyed to the Monash Medical Centre by a co-worker and was later transferred to the plastic surgical service at Dandenong Hospital where he came under the care of plastic surgeon, Mr James Leong. Mr Leong initially operated on that day but, due to ongoing problems, there was further surgery to the left index finger on 30 June 2011, resulting in amputation of the tip of the left index finger to the first joint of that finger.
18 After attending Mr Leong for a number of reviews, the plaintiff also had hand therapy, which stopped in around May 2012.
19 The plaintiff returned to work with the defendant on light duties in approximately October 2011 and then on full duties from December 2011. At the time of his first affidavit, he continued to work with the defendant.
20 At the time of his first affidavit, the plaintiff deposed to the following consequences of his amputation:
(a)The amputation stump was painful and, in particular, the tip and scar tissue was very sensitive to touch and extremely painful when he knocked on the inside of the left index finger. There are areas of numbness which were worse when the finger was cold;
(b)He often wore a glove at work to avoid hitting his finger, but this makes it even more difficult to grip so he did not wear the glove all the time;
(c)He had lost a great deal of grip strength in his left hand, which bothered him. In particular, he found it hard to hold heavy things in his left hand and this caused difficulty at work. He tended to rely on his right hand as much as possible, which caused problems when tasks required both hands;
(d)When he tried to wash dishes in cold water, his finger hurt and it could make his finger turn blue. In the winter when the finger was cold, it felt very stiff and numb and he tried to warm it up at work by running it under warm water;
(e)He had limited ability to bend the remainder of his left index finger and had lost fine motor skills in his left hand. At work, he found it hard to pick up small things like rivets or screws with his left hand, and when playing with his daughter, he found it hard to play with small toys or pick up small items with his left hand;
(f)He was no longer able to touch type or use a knife and fork normally;
(g)He used to like playing the piano at a friend’s house, but cannot do that anymore.
21 By way of his second affidavit, the plaintiff gives evidence that he was made redundant by the defendant in February 2013 on the basis that there was “not much work at the factory”. Since being made redundant, he has been working as a casual labourer performing packing work, principally at LJM Marketing Services in Dandenong where the hours are varied from week to week, but he could work up to 40 hours per week.
22 The plaintiff finds the work very difficult as it involves a lot of lifting and repetition, and placing items onto a conveyor belt. He found that working in gloves makes him too slow and, accordingly, he wraps his index finger in a bandage when working. He describes the work as making his hand dry and ache, and generally increases his pain.
23 The plaintiff asserts that his injury does affect the type of work “I can do”.
24 The plaintiff does not take any medication as he considers that would not be “healthy” and that the medication may make him drowsy. If the pain is very bad, he will apply some Voltaren Gel to the tip of his left index finger. He describes that the pain around the tip of his amputated finger is “particularly bad” and that the sides of the finger tend to go numb. In particular, the tip is very painful if he knocks it. He describes he has an ache and “base level of pain” in his injured finger every day and the finger is “stiff every day”. If it is painful at night, it affects his sleeping and it is particularly painful during “cold or rainy weather”.
25 The plaintiff describes how he has been unable to resume playing the piano, and when attending functions held by the Cambodian Association of Victoria, he is unable to join in with the music. Further, he hoped to be able to learn the “chapei”, which he describes as a long, three-string, traditional Cambodian instrument. When using a computer, he is restricted to typing with one hand. He asserts that prior to the injury, he used his left hand a lot and, in particular, states:
“I considered it my one perfect hand. Unfortunately I was born with two thumbs on my right side, which since my childhood I’ve always considered to be unattractive. I feel sad that it was my left hand that was injured rather than my right hand.”[19]
[19]Exhibit 1, PCB 31
26 The plaintiff describes driving frequently over the summer months to camp at Sale in order to fish. Because fishing is awkward now because of the injury causing problems with dexterity and baiting hooks and the like, he states he has lost a lot of interest in fishing.
27 The plaintiff helps his wife around the house and tries to manage bags of rice weighing 25 kilograms. He has taken some days off work due to the injury, but he forces himself to keep going given his financial position. He believes he could not do the same work as a machine operator, as he did before the injury, and also believes that he lost his job with the defendant, at least in part, because he could not work as fast as he could before the injury.
28 By way of his most recent affidavit, the plaintiff confirmed he continues to work as a packer at LJM Marketing Services in Dandenong, with the hours varying from week to week. He confirms that he usually has his left index finger wrapped in a bandage to protect it when he is working and applies Voltaren Gel to his injured finger to relieve the pain.
29 The plaintiff asserts that his present employer has told him that he is not “working fast enough” and he is fearful he may lose his job because of problems associated with his finger.
30 The plaintiff confirmed that he continues to suffer pain at the base of his finger, and the tip of the finger is painful. He is woken at night by pain in the finger and has difficulty returning to sleep.
31 The plaintiff has ongoing problems with pain and stiffness, particularly in cold weather, and finds gripping, grasping, holding and pinching with his left hand “very difficult”. He rarely goes fishing now and is unable to play music at the Cambodian Association of Victoria.
32 The plaintiff continues to have difficulty around the house. He described his wife gave birth to their second child, and when he attempts to assist her with the housework and caring for the children, he struggles with tasks involving both hands, such as cleaning, mopping and vacuuming, and it takes longer to perform these tasks.
33 In particular, the following evidence was given:
“Every time I look at my left hand I am reminded of the accident. I feel embarrassed and sorry for myself. My left hand used to be my perfect hand. Before my accident I deliberately tried to use my left hand for many activities. Now I feel that my perfect hand has been spoilt. I [am] reluctant to go out socially to weddings and festivals because of my left hand. I try to hide my left hand in public. Although I’ve had two right thumbs since birth this did not embarrass me as I was used to it. The injury to my left hand has been devastating. I feel sad and frustrated because of the appearance of my left hand the pain and limitations it has placed on me.”[20]
[20]Exhibit 1, PCB 36–37
34 The plaintiff also relies on an affidavit from his wife, Thida Teblam, which was sworn on 6 June 2014. In that affidavit, she deposes that she was about to give birth to her second child in mid-June 2014. She describes how her husband has difficulty around the house performing cleaning, mopping and vacuuming, causing her to do a lot more at home. Prior to the injury, her husband did the gardening and lawn mowing and, since the injury, he has had difficulty starting the lawnmower, causing her to take over the task (up to when she became pregnant).
35 The plaintiff’s wife describes how her husband finds it difficult assisting her in caring for their second child, especially in relation to feeding, bathing and dressing her. Also, when playing with her, he finds it hard to pick up small toys and small items with his left hand.
36 The plaintiff’s wife also comments that her husband seems to be suffering from ongoing pain in his left hand, particularly at night, causing disruption to his sleep, and her husband’s social life has deteriorated because of his hand injury.
The medical evidence relied on by the Plaintiff
37 Before referring to the pertinent cross-examination of the plaintiff, I consider it worthwhile to set out the medical evidence relied on by the plaintiff.
38 The plaintiff relies on a medical report from the plastic surgeon, Mr James Leong,[21] dated 18 May 2012. Mr Leong records that he first dealt with the plaintiff on 9 June 2011 when he performed an amputation to the tip of the left index finger caused by a “work-related accident”. After the surgery, the plaintiff consulted with Mr Leong on several occasions within the first week.
[21]Exhibit 2, PCB 42
39 On 24 June 2011, it was noted that the flap on the finger gradually turned “dusky and became necrotic”. The plaintiff underwent further surgery on 30 June 2011 when the nonviable skin flap was debrided and the left index finger was further shortened by several millimetres. The defect was then closed with a split skin graft. Mr Leong notes that the level of the amputation is now down to the DIP joint.
40 Mr Leong further notes that the post-operative recovery was slow with ongoing pain and stiffness for many months despite hand therapy soon after surgery. In September 2011, the plaintiff complained of a very tender left index finger stump, especially on the radial side and over the tip. He was given exercises to desensitise the fingertip.
41 Mr Leong last saw the plaintiff on 3 February 2012 when he was back at full-time employment and was not on any pain medication. Mr Leong noted at that time that the neuroma-type pain over the tip of the left index finger was still present, especially on the radial side of the stump. Mr Leong records that the plaintiff was able to put up with the pain and was wearing some sort of protective wrap over the index finger when at work, although he had some difficulty with tripod pinch and also using the thumb index pinch. On that last occasion, the plaintiff did not want to have any further surgery.
42 The plaintiff also relies on a report from general practitioner, Dr Peter D Pereira, dated 21 August 2014.[22] Dr Pereira records that the plaintiff first consulted him on 14 June 2011 giving a history that he had injured his left hand at work on 8 June 2011, causing him to undergo surgery by Mr Leong.
[22]See Exhibit 2, PCB 45
43 At that time, the plaintiff complained of “a lot pain” in the left index finger and hand, and examination revealed the left hand to be bandaged and in a sling.
44 The plaintiff was prescribed Codapane Forte tablets three times a day for pain relief. On 15 June 2011, he was prescribed Cilex 500-milligram tablets, three times a day for infection.
45 The plaintiff was further seen on 21 June 2011 when he claimed that the left hand and index finger was still quite painful, and again, he was prescribed Codapane Forte tablets three times a day for pain relief. Again, on 9 July 2011, he was prescribed Cilex 500-milligram tablets, three times a day to prevent infection.
46 Dr Pereira notes that the plaintiff has not consulted him since 9 July 2011 for his finger injury. Dr Pereira states that he is not sure as to the effect that the injury has on restricting the plaintiff’s ability to undertake his domestic, social and recreational duties given the time lapse.
47 The plaintiff also relies on a report from the occupational hand therapist, Ms Dianne Hedin, dated 6 February 2012.[23] Ms Hedin reports that the plaintiff was seen by one of their therapists (Gloria Tsao), who is no longer employed. Ms Hedin states, in part:
“ … Mr Lam lost the distal phalanx of his left, dominant hand following an injury at work.[24] As a result of this permanent loss, the gross grip strength of Mr. Lam’s left hand is markedly weaker. He continues to have pain at the tip of the stump, this pain is likely to be long term and contributes to his grip weakness as he is unable to tolerate pressure against the stump. In addition, Mr. Lam does not use the Index finger because of the loss of length and has to use his Middle finger to substitute for it in finer manipulative tasks. Mr. Lam has managed to return to his previous duties, however, he now needs assistance to carry the heavy weights that he used to manage independently.”[25]
[23]See Exhibit 2, PCB 43
[24]Although it is recorded by the hand therapist that the left hand was the dominant hand, other evidence before the Court established that the right hand was the dominant hand.
[25](op cit), PCB 44
48 The plaintiff was also medico-legally examined by the plastic and reconstructive surgeon, Associate Professor Felix Behan, on 23 July 2012[26] and on 2 June 2014.[27]
[26]See report of same date – Exhibit 2, PCB 48–66
[27]See report of same date – Exhibit 2, PCB 67–81
49 At the time of his first examination, Associate Professor Behan noted that the plaintiff has a congenital abnormality of the right hand with an additional thumb digit and that the plaintiff is naturally right-hand dominant.
50 After making an examination of the left hand, which involved taking a number of photographs, Associate Professor Behan was of the view that the plaintiff’s wounds had healed and that the plaintiff overall had made a good recovery, with his condition now stabilised.
51 Associate Professor Behan highlights the following:
(a)in Photograph 2, he notes that there appears “tightness in the closure which contributes to ongoing symptoms”;
(b)Photograph 3 shows the comparative appearance between the right and left hands confirming the amputation loss;
(c)Photograph 4 shows the restricted functional range in the flexion of the left index finger (limited to 125 degrees at the proximal interphalangeal joint);
(d)Photograph 5 shows the palmar surface with tightness highlighted by flash photography;
(e)Photograph 6 shows the 5-millimetre two-point discrimination distance at the distal limit, constituting almost 50 per cent reduction in sensory input;
(f)Photograph 7 shows restriction in pincer grip and tripod grip and key-handling ability in his left hand.
52 When later examined by Associate Professor Behan in June 2014, a history was obtained that the plaintiff was working with a packaging firm and had been there for approximately twelve months. Furthermore, the plaintiff advised Associate Professor Behan that he no longer plays basketball but no other recreational or social activities were mentioned.
53 Associate Professor Behan performed a physical examination which also included the taking of various digital photographs of the damaged left hand.
54 Associate Professor Behan was of the opinion that there had been some slight improvement in range of movement when forming a fist with the left hand; however, there was persistent stiffness at the proximal interphalangeal joint of the left index finger. Furthermore, he noted there was persistent oedema also contributing to reduced range of movement. In particular, Associate Professor Behan noted that the sensory loss with a two-point discrimination distance of 11 millimetres (compared to 5 millimetres previously) indicated a hypo-aesthesia of the left index finger tip which he stated possibly reflected a communication barrier previously.
55 Associate Professor Behan stated, in part:
“6. The patient is principally occupied with his young family and little mention was made of present restrictions with regard to domestic, social or recreational pursuits.
7. The patient remains restricted in relation to pincer grip, tripod/pen-holding grip and key-holding grip between the thumb and index with the (L) hand. There is also reduced sensation in the (L) index finger tip, which has apparently deteriorated since the previous examination, with possible implications with scar tissue and neuroma formation.”[28]
[28]See report of Associate Professor Behan dated 2 June 2014 – Exhibit 2, PCB 74
56 It is also convenient to refer to the medico-legal report relied on by the defendant. The plastic and reconstructive surgeon, Mr John Anstee, examined the plaintiff on 27 September 2012.[29] When seen by Mr Anstee, the plaintiff made the following complaints:
[29]See report of same date, Exhibit 3, PCB 83
(a)any left-handed task had been made more difficult by virtue of the injury;
(b)the power of the grip on the left side was much reduced;
(c)the left index finger was occasionally stiff;
(d)the amputation stump is tender and if he knocks it he suffers quite significant pain which lasts for half a minute or so;
(e)he is most concerned by the appearance of the left hand with the index finger about 2 centimetres shorter than the right.
57 Mr Anstee made an examination and noted that the plaintiff was a “pleasant and cooperative man who does not seem to be exaggerating his problems”. Mr Anstee found the range of movement and sensation was reduced and in addition, there is an area of scarring on the radial and palmar side of the intermediate phalanx of the left index finger measuring “30 mm x 1 mm”.
58 Measurement of power of grip on each side revealed on the “right hand generated pressures of 260, 260, 265 and 260 mm of mercury”, whereas the “left hand generated pressures of 140, 150, 150 and 145 mm of mercury”. Mr Anstee considers that such findings represented “a genuine effort on the part of this patient”.
59 Ultimately, Mr Anstee stated that every left-handed task would be made more difficult by virtue of the injury. Mr Anstee noted that such assertion was based on the fact that the index finger is used in most hand functions.
Cross-examination of the Plaintiff
60 Under cross-examination, the plaintiff gave the following pertinent evidence:
· Although accepting that he is right-hand dominant, and writes with his right hand, he had a good use of his left hand prior to the injury.
· He confirmed that he has not seen any doctors in relation to this hand since 2012.
· He confirmed that he resumed light duties with the defendant in October 2011 and then in December 2011, resumed full-time duties which continued until February 2013, when he was made redundant. The plaintiff did assert that he was told that he was “too slow” but also accepted that a “paper” stated that “the business is slow”.
· During his resumption of work with the defendant, he sometimes used Panadeine and Voltaren Gel was massaged on the skin on and around the finger.
· He accepted that he can use hot water for dishes and if he runs out of hot water and uses cold water from the tap, he experiences pain in the finger.
· He asserted that although he wrote with his right hand prior to the injury, he could write with his left hand.
· Prior to the injury, he used chopsticks with his right hand and left hand and now only used chopsticks in his right hand.
· Prior to the injury, he only did a very small amount of typing at work. This involved typing up a label.
· He confirmed that he still attends the Cambodian Association of Victoria but has been unable to play the piano. He also confirmed that he had been playing the piano for about four to five months prior to the injury and that prior to the injury, he had also been eager to learn the chapey – which is a three-stringed Cambodian musical instrument.
· He confirmed that he has difficulties with dexterity when fishing and has trouble, in particular, with putting bait onto a hook. He does confirm that he has gone fishing since the accident but his wife could not go because she was pregnant last year.
· The plaintiff explained that with Cambodian dancing you have to put your hand out and people could see his damaged left index finger, which he would find “embarrassing”.
· The plaintiff asserted that the difficulty with mowing is that the cord, which has to be pulled to start the motor, is on the left-hand side and it is difficult to use the right hand in such circumstances. He accepted that once the mower is operating he would have no trouble pushing it.
· When vacuuming, he sometimes has difficulty picking up very small things from the ground with his left hand. He accepted he could pick up a piece of paper but has difficulty with very small objects. In particular, the following evidence was given:
Q: “So, I mean, the fact of the matter is, you could just get on and do – just do vacuuming?---
A: Yeah, you still can vacuum, but you know like small – small tiny, small thing, object, you cannot using that finger.
Q: Well get it out with your right hand?---
A: It will take time. You need to be fast. You need to do other job[s] as well.
Q: What other jobs do you need to do?---
A: Cleaning, washing.
Q: Yes, they are all the things you do?---
A: Look – looking after the kid.
Q: Yes. They are all the things that you do, that you have to do?---
A: (Direct) Yeah.
Q: And so you say, well I’ve got to be fast?---
A: (Through interpreter) You cannot work very slow like this.
Q: No, very slow?---
A: (Direct) And not too – not fast enough.
Q: You have got to be quick?---
A: Yeah.
Q: Because you have got a lot of other jobs to do?---
A: Yes.
Q: What other jobs have you got to do?---
A: (Through interpreter) Like cleaning, you need to do other cleaning.
Q: And that is what you do?---
A: (Direct) Yeah.
Q: Why is it difficult for you to look out – do you say that you can’t lift up your child?---
A: (Through interpreter) My hand cannot grab properly, and then the kid moving”.[30]
[30]T32, L9–31
· The plaintiff accepted that he can pick up and carry a 25-kilogram bag of rice but with the left hand under the bag for support. The plaintiff also accepted that sometimes the person who sells the bag of rice would bring it in a trolley to his car and help put it in the car. At other times “Sometime I lift, put in the car, sometime they lift it up”.[31]
[31]T33, L19–20
· The plaintiff accepted that sometimes he goes shopping without his wife and sometimes he looks after his children when his wife goes out shopping.
· The plaintiff asserted that other than going out for shopping he was confined to the house and has “no enjoyment now”.[32]
[32]T35, L8
· Prior to injury, he enjoying fishing, football, partying and playing music.
· The plaintiff accepted that he goes to the poker machines at a Tabaret connected to the Keysborough Hotel.
· The plaintiff accepted after a series of questions that he was carrying bags in his left hand. In particular, the following evidence was given:
Q: “You are carrying shopping bags?---
A: Plastic bag. It is not rice.
Q: No, listen to the question. You are carrying shopping bags?---
A: Yes.
Q: In your left hand?---
A: Yes.
Q: What is in your right hand?---
A: I got a key.
Q: You have got the key in your right hand and what have you got in your left hand? Shopping bags? Don’t worry about this. You are carrying shopping bags in your left hand, aren’t you?---
A: Very light. It’s only (indistinct).
Q: Why aren’t you carrying the shopping bags in your right hand?---
A: Left hand, I can use the same, you know. They are light.”[33]
· The plaintiff accepted that he has a Honda motorcar.
· The plaintiff also accepted that he has had an interest in swimming and that has not been affected by his left finger injury.
· He also accepted that he plays soccer. He stopped that because “tired – use a lot of energy”.[34]
· He accepted that he could still play football (soccer).
· The plaintiff accepted that he can go down to the pokies for hours at a time, and in answer to a question from the Court, the plaintiff demonstrated that he uses his right hand to operate the poker machine.
[33]T37, L21 – T38, L1
[34]T39, L26–27
61 Under re-examination, the plaintiff gave the following pertinent evidence:
· The plaintiff stated that prior to injury, he did not play the poker machines but now plays the poker machines because he was “getting very boring”.[35] He goes to the poker machines every two to three weeks.
[35]T43, L20–21
· When queried about the plastic bags held in his left hand (about which he was cross-examined), the plaintiff stated that in one bag there was Chinese “veggies” and in the other bag there was white bread. There was also an orange bag shown which contained grapes. The plaintiff considered that the total weight of the bags and the contents were “around about 800 grams”. When carrying those bags he uses three fingers and the thumb, but does not use the index finger as it might touch some portion of the bags or other parts of his body and become painful.
· The plaintiff said that before his injury, he played basketball all the time at the Coomoora School near his home. He has not played any basketball since the injury and stated:
“ … so when you bang, bang on the floor it touching, hitting it and hurt, also when it hurt too when you hit it.”[36]
[36]T46, L8–10
· The plaintiff stated that prior to his injury, he played volleyball at the Cambodian Temple in Melbourne. He has not played since his injury and prior to the injury, he last played in June 2011 but he could not remember which day.
· The plaintiff described that when music is played at the Cambodian Association, it is played by a band. In particular, in re-examination the following evidence was given:
Q: “Before your injury, had you played any music at the Cambodian Association with that band?---
A: I haven’t been involved yet.
Q: What instruments were you learning to play before your injury?---
A: Piano. I like piano.”[37]
· The plaintiff gave evidence that prior to his injury, he was learning the piano so he could play with the Cambodian Association in the band. Furthermore, he wished to be able to continue to play the chapei, as that instrument produces Cambodian traditional music.
· The plaintiff was asked about the use of Panadol and he stated he takes Panadol when he gets an ache or pain and work, but “not very important for my finger, Panadol”.[38]
· The plaintiff informed the Court that his baby is four or five months old and his first child is now six years old. In particular, the following evidence was given:
Q: “What difficulties, if any, does your finger cause when dealing with your baby?
A: Yeah, so that baby always moving, so I’m scared that I’ll drop it, and how to put the button.”[39]
[37]T47, L28–31
[38]T48, L19–20
[39]T49, L3–5
Analysis of the evidence
62 I find that the plaintiff suffered a left index finger injury arising out of or in the course of his employment on 8 June 2011. Such injury has resulted in an amputation to the left index finger at or near the distal interphalangeal joint. Furthermore, I accept the evidence of Mr Anstee that the plaintiff also has an area of scarring on the radial and palmar side of the intermediate phalanx of the left finger which measures 30 millimetres x 1 millimetre. Such a compensable injury has obviously resulted in some permanent organic impairment of his left index finger giving rise to some organic consequences. So much is not disputed by the defendant.
63 The defendant submits that after consideration of all the evidence, the plaintiff has failed to discharge his onus in satisfying the narrative test. In particular, counsel for the defendant submitted that the plaintiff was “more active with his hand and less affected by the index finger than it is suggested by virtue of the affidavits”.
64 Before making any findings of fact, I consider it apposite to make some comments on the credit and presentation of the plaintiff.
65 After a consideration of all the evidence, I formed the view that the plaintiff was essentially a creditworthy witness and was at all times attempting to give honest and accurate answers to the questions posed to him. Counsel for the defendant submitted that the plaintiff was “somewhat reluctant initially” in agreeing with the proposition that he attended hotels to play poker machines. Although there is some force in such submission, I have come to the view, after reading the transcript, the plaintiff was attempting to distinguish between the hotel and the Tabaret where he attended.
66 At no time did I gain the impression that the plaintiff was either attempting to mislead the Court or, indeed, even exaggerate the symptoms that he suffers in the left index finger. This is perhaps exemplified when the plaintiff stated in re-examination that any taking of Panadol was more for “ache and pain from work” and “not very important for my finger”.[40] Furthermore, I also note the comment of Mr Anstee, the specialist who examined the plaintiff on behalf of the defendant, that the plaintiff was a “cooperative man who does not seem to be exaggerating his problems”.
[40]T48, L17–20
67 Accordingly, after a consideration of all the evidence, I make the following findings in relation to the consequences suffered by the plaintiff as a result of his left index finger injury:
(a)Although the plaintiff was naturally right handed, he considered that prior to the injury, his left hand was his “good hand” given that he had the abnormality of two thumbs on his right hand. In this respect, he could write with his left hand prior to the injury and used his left hand frequently for many particular tasks;
(b)As a result of the amputation of the distal phalanx of his left index finger, the plaintiff is restricted in:
(i)pincer grip of the left hand;
(ii)tripod grip of the left hand;
(iii)key handling ability in the left hand.
Such restrictions impact on any use of the left hand;
(c)The power of the left hand compared to the right is greatly reduced, as demonstrated by the testing by Mr Anstee;
(d)The stump and the radial side of the left index finger is particularly sensitive and when knocked, or even touched, causes pain. I accept that the plaintiff does administer Voltaren Gel around the left finger and, to some extent, on the stump to help minimise any pain symptoms when the stump makes contact with any surface.
(e)The left index finger is about two centimetres shorter than the right (see report of Mr Anstee) and the range of movement and sensation is reduced with the left index finger being somewhat stiff;
(f)The plaintiff has had no active treatment in relation to the left index finger since 2012;
(g)After the injury, the plaintiff was off work until October 2011 when he resumed with the defendant on light duties, and in December 2011, he resumed full-time normal duties. He continued with the defendant until February 2013 when he was made “redundant”. Although the plaintiff does suggest that he may have been put off because he was “too slow”, he did accept that there was a paper which said the business “is slow”. On the material before me, I consider it likely that the plaintiff was put off as part of a general redundancy;
(h)The plaintiff is currently involved in work which requires the use of both hands and, in particular, he tends to wear a bandage on the left index finger to protect it from being bumped or touched which causes him pain. Although he has some concerns about what type of work he can do in the future, he has demonstrated that he can perform work involving the use of both hands subject to the application of the Voltaren Gel and the protection of the stump by some type of bandage.
(i)As a result of the injury, the plaintiff has been unable to continue learning how to play the piano or pursue his interests in learning how to play the chapei (the traditional Cambodian instrument);
(j)As a result of his injury, the plaintiff has not been able to continue with his recreational pastimes of playing basketball and volleyball, as both of these activities involve the risk of his left index stump being struck;
(k)The plaintiff asserts, and I accept, that he finds difficulty, particularly in cold weather, in gripping, grasping, holding and pinching with his left hand, which in turn impacts on many activities including fishing ( aspects such as baiting hooks), assisting his wife with housework (where fine movements are required) and his interaction with his new child, whether it be holding the child, dressing the child or playing with toys;
(l)I also accept the evidence of the plaintiff (and his wife) that he suffers disruption to his sleep as a result of pain in his left hand during the night.
68 As earlier recorded in this judgment, the question whether an injury satisfies the narrative test is largely a question of impression or value judgment. Notwithstanding the foregoing, there is some guidance from various Court of Appeal decisions:
(a)Stijepic v One Force Group Aust Pty Ltd & Anor;[41] wherein the Court of Appeal (consisting of Ashley JA and Beach AJA) commenting on the decision of Sumbul v Melbourne All Toya Wreckers Pty Ltd,[42] stated:
[41][2009] VSCA 181
[42][2006] VSCA 292
“So far as the respondents’ final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered … .”[43]
[43]Stijepic (op cit) at paragraph [47]
(b)Haden Engineering Pty Ltd v McKinnon,[44] wherein the Court of Appeal (Maxwell P, Buchanan and Nettle JJA) stated that the interpretation of “pain and suffering consequences” of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain and the plaintiff’s physical capabilities and enjoyment of life. Part of that process is for the Court to assess the intensity of the pain which the plaintiff experiences, together with the frequency and duration of pain episodes.
[44](2010) 31 VR 1; see also Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
The Court of Appeal made reference to the Court of Appeal decision of Dwyer v Calco Timbers Pty Ltd (No 2),[45] and thereafter stated:
[45][2008] VSCA 260
“As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘... [I]mpairment is concerned with what has been lost. But the significance of what has been lost ... may be informed, to an extent, by what is retained’.”[46]
[46]Haden Engineering (op cit) at paragraph [14]
Maxwell P also stated in Haden:
“When judging the pain and suffering consequences for the plaintiff by comparison with other cases, it is relevant to look at the plaintiff’s life expectancy in order to determine the likely period for which those consequences will be experienced.”[47]
[47]Haden Engineering (op cit) at paragraph [17]
69 Obviously enough, the plaintiff has demonstrated his capacity for performing work with both hands since the injury. However, it must be stressed that such has been undertaken in circumstances where the administration of Voltaren Gel is required around the finger and stump area, together with the frequent wearing of a bandage to protect the stump from being struck, which gives rise to pain symptoms. Furthermore, although the non-dominant hand, the plaintiff made clear, and I accept, that he used his left hand frequently and was able to write with his left hand prior to the injury because of the state of his right hand (being with two thumbs). Again, it is clear that the plaintiff can do some fishing (with some difficulties), perform some housework (which avoids fine work with his left hand) and perform some outdoor chores which avoid the use of the left hand.
70 However, it must be stressed, as stated by Mr Anstee, that as a result of this injury, “every left handed task will be made more difficult by virtue of this injury … the index finger is used in most hand functions”.
71 The plaintiff is a relatively young man who will continue to experience consequences of his left index finger injury every day of his life and during his sleeping hours. Such consequences range from the very modest (for example, difficulty with baiting a fishhook) to more significant (avoiding the stump coming into contact with a particular surface when working, causing him to wear a bandage to protect that area) and waking during the night due to pain in the left-hand area. I am conscious that he has no particular active treatment other than the administration of the Voltaren Gel and the occasional Panadol.
72 I consider this matter a line ball case. Given his age and the variety of consequences which he experiences involving the use of the left hand on a daily basis. I consider that a combination of all such consequences do satisfy the narrative test.
73 Although Counsel for the Plaintiff made clear[48] that the application for a finding of “serious injury” was primarily based on paragraph (a) of the definition of serious injury, he did not abandon reliance on paragraph (b) of the definition of serious injury.
[48]T53, L21–24
74 For completeness, I do find that the compensable injury has resulted in permanent disfigurement – the scarring and the amputation of the distal phalanx. I determine that when considered in the range of other disfigurements it may be considered significant but not “more than significant or marked and at least very considerable”. I dismiss that part of the application.
Conclusions
75 Accordingly, I grant leave to the plaintiff to bring common law proceedings in respect of his left index finger injury suffered on 8 June 2011.
76 I will hear the parties on the question of costs.
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Annexure 1
The plaintiff tendered the following documents:
Exhibit 1
· Affidavit of plaintiff sworn 18 December 2012
· Affidavit of plaintiff sworn 25 October 2013
· Affidavit of plaintiff sworn 1 October 2014
· Affidavit of Thida Tep Lam (the wife of the plaintiff) sworn 6 June 2014
(All these documents are found at 11-21 PCB and 28-41 PCB).
Exhibit 2
· Medical report of James Leong dated 18 May 2012
· Report of Ms Diane Hedin dated 6 February 2012
· Report of Dr Peter Pereira dated 21 August 2014
· Reports of Mr Felix Behan dated 23 July 2012 and 2 June 2014
(All such reports are found at 42-81 PCB).
Exhibit 3
· Report of Mr John Anstee dated 27 September 2002. (Mr Anstee examined the plaintiff on behalf of the defendant.)
(Such report is found at 83-96 PCB).
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