Lines v Pacific Brands Limited
[2013] VCC 404
•18 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01648
| CHRISTINE LINES | Plaintiff |
| v | |
| PACIFIC BRANDS LIMITED and VICTORIAN WORKCOVER AUTHORITY | First Defendant Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2013 | |
DATE OF JUDGMENT: | 18 March 2013 | |
CASE MAY BE CITED AS: | Lines v Pacific Brands Limited & Anor | |
| MEDIUM NEUTRAL CITATION: [First Revision 17 April 2013] | [2013] VCC 404 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – injury to the right middle finger and right dominant hand – pain and suffering only – whether consequences to the plaintiff are “serious”
LEGISLATION CITED – Accident Compensation Act 1985, ss134AB(16)(b), 134AB(37) and (38)
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti (1994) 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v CalcoTimbers Pty Ltd No 2 [2008] VSCA 260.
JUDGMENT – Leave granted to bring proceedings for damages for pain and suffering only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Thomson | Victorian Compensation Lawyers |
| For the Defendants | Mr A Middleton | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the first defendant on 13 June 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brought this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. The body function relied on was the right middle finger and dominant right hand.
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Petkovski v Galletti.[2]
[1](2005) 14 VR 622
[2](1994) 1 VR 436
10 The plaintiff relied upon two affidavits and was cross-examined. She also relied on an affidavit sworn by her son, Michael Alan Lines, on 12 February 2013. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
11 The plaintiff is presently aged fifty-four, having been born in October 1958. She was educated to Year 10 and has no other formal qualifications. She presently lives with her adult son.
12 In her working life, the plaintiff has generally been employed in retail and she has worked as a manager in various stores. In November 2003, she began employment with the first defendant on a full time basis, managing the everyday operation of its clearance store at Werribee.
13 In addition to managerial duties, the plaintiff was also required to do hands on work around the store performing activities including unpacking stock and shelving merchandise.
14 Prior to the said date, the plaintiff had been generally in good health and did not have any significant anxiety or depressive problems, or any significant physical medical conditions causing interference with her life.
15 In or about August 2005, the plaintiff had had some pain in her right ring finger and right palm from having to open many boxes during a sale. She had had finger and hand soreness in the past, but nothing as painful as on this occasion, but after a while, that condition generally improved.
16 In cross-examination, the plaintiff was asked about an attendance on a general practitioner in 2005 where she had a problem with her right ring finger and palm. She explained that she had no problem with her middle finger at that time.
17 In her recent affidavit sworn in February 2013, the plaintiff deposed to previous left arm and wrist problems in relation to which she consulted doctors. Her condition then resolved and did not cause any significant interference with her activities.
18 On or about the said date at work, the plaintiff injured her right hand and middle finger whilst unpacking hard, heavy plastic packaged bags of Berlei bras. Whilst doing so, her right middle finger suddenly became stuck in a flexed position (the incident”).
19 In the alternative, it is also alleged the plaintiff’s injuries arose by virtue of a gradual process from 25 November 2003 to 13 June 2008.
20 The plaintiff reported the incident and was diagnosed with a trigger finger and treated with tablets and a splint. She returned to work straight away on modified duties and continued to wear the splint for about three weeks.
21 The plaintiff initially consulted Dr Ong at the work clinic for medication, referral and paramedical treatment, such as hand therapy. The plaintiff last saw him in July 2008 and then attended Dr Mantzaris.
22 Despite undergoing a steroid injection, the plaintiff’s condition did not improve. She then underwent hand surgery performed by Mr Crock on 18 August 2008 (“the first operation”) and was referred for physiotherapy. Mr Crock injected the plaintiff’s right hand in November 2008, and thereafter she started hand therapy with Megan Fitzgerald involving ultrasound and compression gloves.
23 Following the first operation, the plaintiff was off work for about a week and then returned to light, modified duties with restrictions in opening stock and heavy lifting. She continued to experience pain and discomfort in her right hand and middle finger, and had a lump in her right hand accompanied by pain and numbness.
24 Five weeks after the first operation, the plaintiff had to help with a stocktake and use a scanning gun all day. Extensive use of her right middle finger in this activity exacerbated her pain.
25 In March 2009 the plaintiff started to see hand surgeon, Mr Berger, at the suggestion of the first defendant, He organised an MRI of her right hand and right middle finger later that month.
26 Mr Berger carried out further hand surgery on 17 July 2009 (“the second operation”). This procedure was followed by further hand therapy. Thereafter, the plaintiff had ten further injections into her right hand and middle finger, performed by Mr Berger, but they did not generally provide much improvement.
27 Mr Berger organised another MRI on 8 October 2009 and a nerve conduction study and electromyography on 3 December 2009.
28 In early January 2010, the plaintiff started to see Dr Laurence Clemens, a rheumatologist, on referral from Mr Berger.
29 After the second operation, the plaintiff was off work for a few days. On her return to work, she began to experience depressive symptoms and felt management was trying to make things hard for her and trying to pressure her to leave work, although she tried very hard to keep doing her duties. She was upset and disappointed with her treatment in those circumstances.
30 The plaintiff continued to perform light duties until 18 March 2010 when she was made redundant.
31 In about June 2010, the plaintiff attended a conference with a group of hand surgeons, arranged by Mr Berger, to review her injury.
32 The plaintiff deposed in November 2011 that she experienced constant, though varied, pain in her right hand and middle finger, with a sharp stabbing pain in the central right palm, both in activity and at rest. The triggering had gone, but she continued to experience soreness on flexion and pain with full extension, generally exacerbated when she tried to undertake modified duties.
33 The plaintiff tended to have exacerbated pain when she applied pressure with her right hand or gripped things. She also experienced an aching that ran up into her right forearm and, since the incident, had a reduced range of movement in the right middle finger, partly due to the pain and discomfort in that digit. There has also been a reduction in strength and sensation in the affected areas.
34 The plaintiff has a prominent scar on her right hand with two limbs, both about one to two centimetres long. It had caused her hand to be less flexible and she tended to have increased difficulty manoeuvring objects.
35 In examination-in-chief, the plaintiff showed her middle finger and right palm. Her right middle finger was slightly curled up. There was no obvious scarring. She explained she had to be careful with her middle finger “because it does click again…. and it still sort of gets stuck like it originally had.”[3] She could not bend her middle finger right back because it hurt and she demonstrated she could bend it back to within two centimetres of her palm.
[3]Transcript (“T”) 11
36 The plaintiff can move her right middle finger but it hurts. She was told she had to try and move it otherwise she would lose more strength in it. She also had pain across the middle part of her right palm if she tried to make a fist.
37 The plaintiff deposed that she was frustrated by her incapacity, having worked hard to stay at work with the first defendant where she had worked for six and a half years and for the majority of her working life. It was a job she enjoyed, although demanding, and she would have liked to have remained there indefinitely. She was greatly frustrated that she had been made redundant as a result of her injuries and reduced capacity.
38 The plaintiff made every reasonable effort to return to work. However, even when she returned on modified duties, her injury was aggravated. This situation made her very disheartened and she was also disappointed she could not return to her pre-injury work.
39 The pain from the incident injury then caused the plaintiff problems sleeping and she sometimes woke at night due to pain. During the night, her right hand tended to become stiff and, as a result, the next day she had pain in her hand, especially when trying to make a fist or flex.
40 The plaintiff also had some slight problems with self care and personal hygiene, with difficulties bathing, grooming and dressing due to pain and a reduced range of movement in her hand. She could do those tasks herself, but took much longer.
41 As a result of the hand injury, the plaintiff generally experienced pain and difficulty following intrinsic physical activity such as flexing, straightening and applying pressure with her right hand and right middle finger. She generally experienced increased pain and difficulty with repeated or prolonged activities such as carrying, lifting, pushing, pulling and manipulating small objects with her right hand and middle finger. She suffered increased pain with increased activity.
42 The plaintiff could still drive a car, but had to be careful how she held the steering wheel or there would be an exacerbation of pain. She tended to be unable to drive for extended periods unless necessary.
43 Prior to her incident injury, the plaintiff used to do everything around the house. However, at that stage she was quite dependent on her son to do vacuuming, cleaning and gardening which she had been previously able to do, together with quite heavy manual tasks at work. That situation often left her feeling useless and frustrated and much older than she would otherwise feel.
44 In the latter stages of working with the first defendant, the plaintiff saved herself from doing the housework so she could do her work duties. This situation struck at the core of her identity and sense of self worth and she felt less useful and frustrated.
45 Despite her situation, the plaintiff generally worked through and had only taken off about two weeks, a week for each operation. She returned to work on light, full time modified duties that did not involve unpacking, until being made redundant in March 2010.
46 In cross examination, the plaintiff agreed that had her employment not been terminated, she would have continued working for the first defendant, however other staff whose employment was also terminated were offered other positions and they had a choice.
47 From about 5 July 2010, the plaintiff started causal work with Sam Velisha, doing light office duties for fifteen to eighteen hours per week.
48 Although she continued to experience very significant pain in that her job, she generally found that work compatible with her injury as she was generally able to take breaks and vary her hours. She remained upset about her limitations.
49 The plaintiff now works up to eighteen hours a week and would do more work with Sam Velisha if it was available. The plaintiff does not have any restrictions placed on her current work by her doctor but Mr Velisha knows about her hand injury and the work is very light anyway.
50 On or about 11 September 2008, the plaintiff was assaulted by an intruder at home with a knife (“the assault”). She went to hospital and thereafter had counselling. She thought she had suffered some nerve damage to her left shoulder in the assault. Thereafter, she generally recovered. However, the assault was traumatic and she believed she had now become more guarded and security conscious.
51 In cross examination the plaintiff became visibly upset when asked about the assault.
52 The plaintiff deposed in February 2013 that her main trouble now is constant, though varied, physical pain and incapacity as a result of her hand injury. If she is careful she is able to find comfort in periods. She is never pain free and the pain is aggravated with even minor activity and at times becomes severe and debilitating.
53 The plaintiff continues to experience a stabbing pain in her right palm and pain, numbness and swelling in her palm and right hand. She continues to have pain in the middle finger, particularly with flexion and extension. Her hand feels week and she has difficult gripping. She tends to use her left hand, where possible, although it is not often possible because she is right handed.
54 The plaintiff continues to see Mr Berger at regular intervals. She started to see a new general practitioner, Dr Rainey, at Wyndham Healthcare in 2012.
55 The plaintiff has received further treatment including, but not limited to, Nurofen, Panadeine Forte and Voltaren hand cream for pain relief. These give her a minimal, transient benefit. She also takes Phenergan to help her sleep at night. She uses a portable hand massager to seek to relieve pain, and she tends to wear bandage to protect her right hand and reduce swelling.
56 The plaintiff thought that she had seen Mr Berger more than three or four times in the last couple of years. She had had a few injections but nothing had helped. There was still swelling and the pain had not eased off. After the injections she had about two weeks relief and then her condition returned to square one.
57 No further surgery has been suggested. It is over a year since the plaintiff last had formal massage/hand therapy. Pain management has been suggested but she has not had it.
58 The plaintiff discusses issues relating to her incident injury more with Mr Berger than with Dr Rainey.
59 In cross examination, the plaintiff confirmed she takes Nurofen on a needs basis. She has had a few prescriptions from Dr Rainey for Panadeine Forte and also for Voltaren. She takes Panadeine Forte once or twice a week depending on how painful her hand is. She is not very good with it as it makes her feel sick and drowsy. She tends to take Nurofen, two to four tablets a day. If her hand is feeling worse, then she takes more. She thought Panadeine Forte had been prescribed more than once.
60 In re-examination, the plaintiff confirmed Dr Rainey had given her prescriptions for Panadeine Forte. However, it caused her problems with her stomach.
61 The plaintiff’s inability to return to her previous work as a retail manager is of great concern to her and is a source of loss of enjoyment of life.
62 The plaintiff has made every reasonable attempt to participate in rehabilitation and return to work. However, she has been unable to return to her pre-injury duties as a retail manager and just does casual work with Sam Velisha.
63 The plaintiff continues to experience difficulty getting a restful night’s sleep due to her injury. Since the incident, she has had problems with her memory and ability to concentrate. She continues to experience pain with self care and everyday activities such as dressing, bathing and grooming.
64 In cross examination, the plaintiff confirmed that since the incident she has always had problems with sleep. Her sleep is disturbed sometimes a couple of night in a row and she takes Phenergan, maybe the third night, to get some sleep. She had a really bad night one night when she did not sleep at all. She had pain in arm, got up and took Nurofen, but could not get back to sleep and she just stayed up all night.
65 In re examination, the plaintiff confirmed she answered questions asked of her by Mr Ireland and that she had had always had problems with sleep and it was not something new, just on the second examination. She tended to sleep with her arm in between two pillows.
66 The plaintiff continues to experience very significant problems with the performance of intrinsic and functional physical activity. She tries to stay as active as possible, but finds some days are particularly bad and she later pays for activity, despite medication. She is frustrated by her physical restrictions and her dependence on others to do things she could previously do herself.
67 The plaintiff tends to drive for shorter distances, as prolonged driving causes increased discomfort and pain. She has very significant difficulty with cleaning, laundry and outdoor activities that she could do previously.
68 In cross examination, the plaintiff described problems cutting up vegetables, scrubbing pots and holding heavy pots. She can carry some things but not heavy items in her right hand and she uses her left. She has been told by her doctor to use her right. She can open a door with her right hand. She wears her splint 99 per cent of the time.
69 The plaintiff has tried vacuuming with her left arm but it is not easy. She continues to get assistance from her son, although she tries some household tasks with her left hand but cannot do that much because of her shoulder injury from the assault.
70 Prior to the incident, the plaintiff was a keen gardener and enjoyed keeping flowers and plants. She now relies on her son to do many activities she used to do, such as washing the car, gardening and vacuuming. She is frustrated and embarrassed by her predicament and feels a burden and much older than she should.
71 Prior to the incident the plaintiff enjoyed gardening as a hobby doing the entire garden, both and her front and back garden. Now she cannot do trimming or use the secateurs because even after a short amount of time her right hand hurts. She has now changed the garden so she does not have any flowers. That situation is just something she has learned to deal with.
72 The hand injury has very significantly affected the plaintiff’s ability to enjoy social participation with family and friends or having people over to her home. She feels in too much pain to socialise with friends or entertain or go out on outings with her son. On medical advice, she has tried to be as active as possible within her significant physical limitations.
73 The plaintiff experiences stress, depression and anxiety, and tends to get upset frequently with the slightest issue triggering anxiety and an emotional low. She feels people are tired of listening to her problems. With the years passing since the incident, it has brought home to her the disappointing reality that, as a result of her physical limitations, she fears she will not be able to enjoy life in the way she had hoped to, and in addition, as a result of her more limited finances, she is worried about the future.
74 In cross examination, the plaintiff described how her condition over the last fifteen months is pretty much the same. Her hand is still swollen. Depending on the amount of work she does one day, her pain and swelling could be worse than on another day. She wears a brace for support and to help her grip things better.
Surveillance
75 There was two minutes of surveillance carried out on 14 July and 9 August 2010 where the plaintiff was shown briefly at a shopping centre, carrying two bags of shopping in her left hand and opening her car door with her right hand.
76 On the morning of 3 January 2012, the plaintiff was shown standing waiting to be served at the poultry counter at the shopping mall. She then went to the fruit and vegetable section and retrieved about three tomatoes with her right hand from the display and put them in a small plastic bag. She left the fruiterers carrying the tomatoes and two loaves of bread in her left hand, holding her hand bag in her right.
77 The following day the plaintiff was again shown at the shopping mall for a couple of minutes, at various times, opening her car door with her right hand.
78 The plaintiff could not say whether or not she was wearing her splint in the film. When asked about picking up the tomatoes, the plaintiff said she could use her right hand in a limited way. She had pain most of the time but as she said earlier, Mr Berger suggested she try and use her right hand as much as possible.
Lay evidence
79 The plaintiff’s twenty two year old son, Michael Alan Lines, swore an affidavit on 12 February 2013.
80 Mr Lines deposed that prior to the incident, the plaintiff was an active and capable woman who enjoyed gardening and socialising. She had an active and independent personality and enjoyed her busy lifestyle, looking after the house and him, as well as working with the first defendant.
81 Since the incident, the plaintiff has continued to complain to him about pain in her finger and hand and, from his observation, her pain is exacerbated when she uses her right hand gripping, or for long periods of times. He observed her tending to favour her left hand.
82 Since the incident, Mr Lines had noticed the plaintiff’s hand generally looked weak and he had seen her take medication for her injury. He had driven her to a number of appointments. The plaintiff wears a compression bandage to prevent her hand from being knocked and uses a portable vibrating massager to exercise her hand muscles. He has seen her having pain in her hand driving the car.
83 The plaintiff has often told Mr Lines she has trouble sleeping due to the pain in her hand and he has heard her up at night when he gets home after a night shift. Since the incident, he has observed the plaintiff having problems with basic household tasks. Before suffering injury, she used to do most of the work around the house. However, since then, she has difficulty doing vacuuming, gardening and washing the car, and he tends to do those tasks himself.
84 Since the incident, Mr Lines has not seen the plaintiff doing as many activities as before. In particular, she was a keen gardener and used to enjoy the garden. She now tends to avoid socialising and spends more time at home. Although she previously had a busy work schedule, she had an active social life.
85 It seems to Mr Lines like the plaintiff’s self esteem had taken a tumble and she tended to get upset much more easily and was often upset about the change in her lifestyle since the incident.
The Plaintiff’s medical evidence
Investigations
86 An MRI of the right hand and right middle finger was organised by Mr Berger in March 2009. It was reported that other than a minor finding within the superficial digital flexor tendon pad slips, a mass or area of abnormal signal abnormality had not been identified to explain persistent pain. It was reported the minimally elevated signal with the superficial digital flexor tendon sheath may indicate tendinosis or degenerative change or residual abnormality of tendinosis that could have given rise to the trigger finger presentation in the first place.
87 There was a nerve conduction study carried out by Dr Keris, neurologist and neuropsychologist, on 3 December 2009. It was reported there was electrophysiological evidence of mild right carpal tunnel syndrome and no evidence of a right ulnar neuropathy at the elbow.
88 An MRI of the right hand was organised by Mr Berger on 6 October 2009. It was reported there was mild tenosynovitis of the flexor tendon sheath of the middle finger. It was noted there was a previous re-section of the medial aspect of the flexor digitorum superficialis to the middle finger, which otherwise had a normal appearance.
89 There was an ultrasound of the right hand organised by Mr Berger on 21 June 2010. It was reported there was tenosynovitis of the flexor tendons of the third finger, tendinopathy of the tendon of flexor digitorum superficialis proximal to the A1 pulley, thickening of the A4 pulley, scarring in the subcutaneous tissues superficial to the tendons overlying the proximal phalanx with no involvement of the tendon and also at and proximal to the A1 pulley. It was also noted there were early Dupuytren's changes over the fourth metacarpal.
90 A CT of the right wrist was organised by Mr Berger on 13 June 2012. It was reported the findings were of degenerative disease within the carpus on a background of previous surgical removal of the trapezium. It was noted, given the remodelling of the ulnar styloid, there was almost certainly impaction between the triquetrum and the ulnar styloid.
91 There was an MRI of the right wrist and hand organised by Mr Berger on 4 September 2012. It was reported there was a 14 x 5 x 4 millimetre cystic lesion extending along the ulnar side of the triquetrum with bony erosion consistent with ganglion, which was partially intraosseous.
Treaters
92 Mr Crock wrote to Dr Sher in June 2008, thanking him for the referral of the plaintiff and advising he had injected the tendon sheath and would see her three months later. He thought there was a seventy per cent chance that would fix things.
93 Mr Crock advised Dr Sher in July 2008 that the triggering had recurred in spite of the injection and was now very painful and that he intended to operate which should lead to a complete resolution of symptoms.
94 An operation note of 18 August 2008 set out a release of the right middle finger was carried out for an operative diagnosis of synovitis and triggering of the right middle finger.
95 Mr Crock reported to Dr Sher in November 2008 that the plaintiff still had some problems from triggering, and she was very emotionally traumatised because her house had been broken into. Because of that situation, he thought she was not up to an injection and he was therefore going to do this it under sedation in the near future, which he thought would lead to a complete resolution of her problems.
96 The plaintiff saw Mr Crock the day after the steroid injection in November. She was then concerned her hand was hurting which, he told her, was a normal reaction. Her pain had not changed. He thought it would take another week before the plaintiff got any benefit from the injection.
97 Mr Crock again wrote to Dr Sher in January 2009 after the plaintiff attended with still a minor degree of triggering and some pain in her right middle finger. He suggested she use Voltaren cream and, if that did not work, undergo further surgery. He thought the plaintiff’s clinical course had been very unusual.
98 Ms Megan Fitzgerald, hand therapist, referred the plaintiff to Mr Milovic on 19 December 2008, having seen her four times after the first operation and two injections. She advised him that the plaintiff felt her hand was no better and reported pain, even if not touching the area.
99 On examination, there was swelling collecting in distal palm proximal to all digits, but in particular between the index and middle finger. The plaintiff then reported hardly doing anything at work because she could not, and she had problems driving.
100 Mr Mario Giannakakis, physiotherapist, referred the plaintiff to Mr Berger in February 2009. He advised Mr Berger that after the first operation, the plaintiff had no confidence in the surgeon when there had not been improvement, and she was quite upset with the lack of progress.
101 Mr Berger wrote to Dr Giannakakis in March 2009, thanking him for the referral, and advised that he had arranged for a nerve conduction test to look at the median nerve and an MRI to look at the flexor tendons.
102 Mr Berger wrote to Dr Clemens in October 2009 asking for help, having conducted an exploration in July 2009 during which there was quite an unusual granular appearing tenosynovitis involving both the tendons and the flexor sheath. Mr Berger advised that unfortunately, after that second operation, the pain persisted and a recent MRI had shown quite marked synovitis around the flexor tendons to the long finger with a tendonitis as well.
103 Mr Berger noted the plaintiff had failed to respond to cortisone injections and he was really at a loss to explain her ongoing trouble. He wondered if the plaintiff may have some underlying inflammatory problem that would cause the persisting problem.
104 Mr Berger reported to QBE in July 2010, noting the plaintiff had a long and complex history with her right finger. He noted the pain had been severe enough to prevent her from returning to pre injury duties. He reported that the exact cause of the pain was always unclear and testing failed to reveal a specific cause.
105 Following the second operation, Mr Berger noted the plaintiff continued to be troubled by ongoing pain in the region of the scar and the flexor tendons. This was constant and aggravated by activities.
106 In view of the chronic nature of the condition and lack of any specific diagnosis, Mr Berger arranged for the plaintiff to be seen by a group of surgeons in June and again no specific diagnosis could be made. It was suggested further investigations be undertaken. A local injection failed to relieve the plaintiff’s symptoms.
107 Mr Berger then thought that the plaintiff was troubled by chronic pain in the region of the surgery. No other specific diagnosis had been made and there were no surgical options for that condition. He noted that she had been referred to a hand therapist and it was hoped that would relieve her pain.
108 As of the middle of 2010, Mr Berger noted there had been no specific diagnosis made as the cause of the plaintiff’s pain and that she appeared to have a chronic pain syndrome which was likely to persist for the foreseeable future. He considered that was a direct consequence of the original trigger finger and subsequent surgery. He thought the plaintiff was capable of lighter duties that did not involve constant repetitive pressure or movement of the right long finger, and the only treatment was from a hand therapist.
109 Mr Berger most recently reported in February 2013 noting the plaintiff had been reviewed on a number of occasions over 2011 and 2012, predominantly to get medical certificates. He reported she had continued to be troubled by pain in her hand and had recently developed nodules and thickening of the tissue in the palm of her hand, consistent with Dupuytren's contracture.
110 The plaintiff was last seen in December 2012 when she advised of problems with ongoing pain in the palm overlying the site of the surgery, with difficulty on finger movement. She reported essentially the pain had persisted unchanged over a few weeks. No further treatment was offered.
111 Mr Berger confirmed the plaintiff presented with chronic pain occurring as a result of the previous release. He noted the pain had a significant impact on her ability to continue with normal work. He thought her present incapacity was due in part to some stiffness in the long finger, but to a greater part due to ongoing pain and the dysfunction that this pain produced. He noted, as with all episodes of chronic pain, there is both the physical and psychological component.
112 Mr Berger thought at this stage the plaintiff was capable of lighter activities, but she should avoid any heavy pressure or gripping with the right hand and that would assist her in getting full time work. The pain was the major problem with the physical effects of restricted movement, minimal.
113 Given the duration of her pain, Mr Berger believed it was likely to persist for the foreseeable future and have an ongoing interference with enjoyment of life and work capacity. He noted the plaintiff’s predominant problem was ongoing chronic pain in the right palm, occurring as a result of the trigger finger and subsequent surgery. Whilst the physical effect of the triggering and the restricted movement was minimal, he believed the pain component was significant and a major cause of the plaintiff’s current disability.
114 Dr Clemens, consultant rheumatologist, reported to Mr Berger in January 2010 thanking him for referring the plaintiff.
115 On examination, Dr Clemens found a slightly limited flexion of the plaintiff’s right third finger. There was tenderness along the line of the flexor tendon, which was maximal at the level of the MCP joint. There was a weakly positive Tinel’s test of the right wrist over the median nerve. There was no evidence of an inflammatory arthropathy.
116 Dr Clemens advised Mr Berger he suspected they were dealing with a chronic tenosynovitis which was mechanical rather than due to an underlying inflammatory condition. He arranged for blood tests and asked the plaintiff to trial a different medication. He explained to the plaintiff that it was unlikely that they were going to turn up any evidence of a systemic condition.
117 Dr Clemens reported to QBE in March 2010. He then thought the plaintiff’s capacity for work was restricted by her condition. He thought she should continue with limited duties and avoid those requiring forceful use of her right hand for gripping and releasing. He thought there would be some permanent limitation in the use of her right hand and he would be reluctant to give an expected time frame when she could go back to normal work. He then thought the plaintiff needed to continue regular exercises.
118 Dr Clemens saw the plaintiff on 9 March 2010. The blood tests were negative. It was his feeling it was unlikely that the plaintiff’s problem was due to a systemic inflammatory condition and that most likely he was dealing with a local mechanical inflammatory problem, but of course he noted one could never be absolutely sure.
119 Dr Michael Rainey from Wyndham Health Care reported in February 2013, noting he first met the plaintiff on 13 December 2012 and had been seeing her periodically as her general practitioner since.
120 Dr Rainey noted most consultations were unrelated to WorkCover, however he knew of the plaintiff’s claim and knew that she saw Mr Berger on a monthly basis in relation thereto.
121 Dr Rainey has attended the plaintiff on several occasions where she has complained of chronic pain in her right hand. He understood that to be related to tenosynovitis of the right middle flexor sheath, for which she has had two operations.
122 On 29 February and 24 October 2012 and 15 February 2013, the plaintiff presented with pain in the right hand and was prescribed Panadeine Forte. Dr Rainey understood she used that medication occasionally, usually one tablet at night when the pain was more severe.
123 On 14 September 2012, Dr Rainey prescribed Voltaren, 50 milligrams, for pain in the right hand. He understood the plaintiff used the over the counter Ibuprofen most days for pain in her right hand and he recently prescribed Proton pump inhibitor to protect her stomach.
Medico-legal examinations
124 Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff in November 2012.
125 On examination, Mr Brearley noted the plaintiff did not give any impression of exaggeration of her symptoms. There was a curved 4 centimetre scar over the distal palm which was difficult to see.
126 Mr Brearley thought the right middle finger appeared normally aligned and there was normal movement of the finger at all joints. On moving the finger, there was a clicking sensation at times and the finger almost locked. Movements of the other fingers were full.
127 Mr Brearley noted a small, tender lump in the line of the right finger in the mid palm area and a smaller lump in the region of the scar in the mid palm area in the line of the middle finger. The plaintiff told him sensation through the whole hand and fingers was slightly reduced. There was twelve kilogram grip strength on the right, compared to twenty seven on the left.
128 Mr Brearley thought the plaintiff was suffering tenosynovitis of flexor digitorum superficialis sheath of the right middle finger. In his view, the condition appeared to be ongoing and the diagnosis was of chronic tenosynovitis failing to resolve. He thought this condition was due to the heavy, repetitive work with the first defendant. There was no psychological contribution as far as Mr Brearley could see.
129 Mr Brearley thought the plaintiff was no longer fit for full time unrestricted manual work or her pre injury employment. He noted she had difficulty with domestic and gardening activities. He thought her condition had stabilised and there was no likelihood of improvement. He did not think there was any chance of increased hours of work in the future.
130 Dr Middleton, occupational health and rehabilitation consultant, saw the plaintiff in December 2012.
131 The plaintiff’s main pain then was in the palmar aspect of the right hand, just proximal to the metacarpophalangeal joints of the right middle finger. The pain varied from very sharp to simple clicking and there was an underlying constant ache which varied in intensity. There were tender nodules associated with the flexors to the fourth ring finger.
132 Dr Middleton noted the scarring and also the main area of tenderness in the nodule of the hypothenar muscle group. There was a forty per cent loss of grip strength. The plaintiff could make a fist. The right hand had end of range pain with full flexion and loss of full extension due to pain.
133 Dr Middleton noted the investigations, the plaintiff’s affidavit, reports from other treaters and also the defendants’ medico-legal reports.
134 Dr Middleton concluded the plaintiff suffered with an acute onset of triggering involving the flexor tendons to the right middle finger. Following surgical release, she developed a chronic inflammatory condition at the site of the surgery with residual synovitis and tenosynovitis which failed to respond to conservative treatment. He noted there was a second operation in July 2009.
135 Dr Middleton also thought the plaintiff suffered with a Chronic Adjustment Disorder with mild anxiety, aggravated by the pressure applied by the first defendant’s management at the time of her injury. He thought the plaintiff had a significant reduction of grip strength. He considered the injuries were directly related to the nature of the plaintiff’s work. He noted the development of chronic pain was a sequelae of the failure of treatment, both conservative and surgical, to cure the injury.
136 Dr Middleton considered the loss of physical capacity involving the right dominant hand and the manner in which the plaintiff was treated resulted in the development of a chronic adjustment disorder with anxiety that was ongoing. He attributed sixty per cent of the plaintiff’s current presentation to physical factors and the balance, psychological. In terms of loss of earning capacity, eighty per cent was physically based and the balance, psychological.
137 Dr Middleton did not think the plaintiff had a current capacity to safely resume her full time unrestricted pre injury employment. He thought the injury had resulted in a serious reduction in her ability to remain in employment, noting she was doing self paced clerical work compared to her previous retail work. He noted her requirement for assistance with domestic tasks. He thought the condition was permanent.
138 Dr Albert Kaplan, psychiatrist, examined the plaintiff in November 2012. She told him she was not happy about the way she had been treated when her employment had been terminated. She felt anxious, suffered from insomnia, and had difficulty with memory and concentration. She was distressed by her loss of independence. She got so upset because she put so much into her job and loved working but the first defendant did not offer her a position.
139 On mental state examination, the plaintiff appeared depressed and became tearful on some occasions. She expressed a feeling of hurt rather than bitterness as to her treatment. Her insight appeared unimpaired. Her thinking was characterised by her preoccupation with her injury, its impact upon her life and the loss of her highly valued job.
140 Dr Kaplan also noted the plaintiff was traumatised by the assault and there was some psychological sequelae and she was more cautious.
141 Dr Kaplan thought the plaintiff described symptoms of anxiety and a formal diagnosis was that of an adjustment disorder with anxiety. He noted the plaintiff also suffered from sleep and appetite disturbance and was no longer able to cope with stress or pressure, and she was emotionally fragile.
142 Dr Kaplan thought it more likely that the plaintiff’s pain and loss of earning capacity was related to organic factors and not her psychiatric condition, and that her capacity for work would therefore largely be determined by her physical condition.
Claim documents
143 The plaintiff signed a worker’s injury claim form on 10 December 2012, setting out she was working and unpacking bras from plastic bags when she suffered a trigger finger right hand injury on the said date.
144 An impairment benefits claim form was signed by the plaintiff on 6 October 2010.
The Defendants’ medical evidence
145 Dr Kostos, rheumatologist, examined the plaintiff in December 2009.
146 Dr Kostos then noted that despite two operations, the plaintiff certainly had some pain and swelling in the finger, consistent with the tenosynovitis noticed on MRI scan.
147 On examination, there was a full range of right wrist movement with some discomfort in flexion and extension. The right hand showed evidence of previous surgery to the palm in relation to the flexor tendon of the right middle finger. That area was tender. The right middle finger was slightly swollen and Dr Kostos noted a decreased range of movement in the MCP and PIP joints in flexion. There was no triggering noted. The only other abnormality was some thickening of the right second MCP joint. However there was no synovitis elsewhere.
148 Neurologically, the plaintiff’s grip strengths were three on the right and twelve on the left. Sensation to pin prick was reduced in the right hand and arm and across the top of the right shoulder.
149 Dr Kostos noted the plaintiff claimed to have developed some triggering in the incident at work and had ongoing problems despite two operations.
150 Dr Kostos noted the plaintiff certainly did have some pain and swelling in the finger and that seemed to be consistent with the tenosynovitis noted on her October 2009 MRI scan.
151 Dr Kostos noted he could understand why Mr Berger had referred the plaintiff to Dr Clemens for further review to exclude the possibility she may have inflammatory arthritis, but in Dr Kostos’ view that did not seem to be likely on clinical grounds.
152 Dr Kostos noted that for some unknown reason the plaintiff’s treatment had not resulted in the usual outcome, which was complete resolution of symptoms without any permanent impairment. The only other treatment he could recommend besides steroid injections would be a course of oral Prednisolone to see if that helped and he thought further hand therapy was problematical. He thought it was appropriate the plaintiff continue in restricted duties.
153 Mr Frank Ham, consultant plastic surgeon, examined the plaintiff on behalf of QBE in October 2010.
154 On examination, Mr Ham noted there was swelling in the area affected but no indication of a complex regional pain syndrome. He thought there might be mild decrease of sensation in the tip of the right and middle finger but this could not be consistently reported by the plaintiff.
155 There was no restriction of the upper right extremity but there was an apparent decrease in the ranges of flexion of the four fingers of the right hand and the ranges in the proximal and distal interphalangeal joints of all four fingers. Mr Ham thought that was due to lack of use of digits. He did not think the plaintiff was using maximum effort flexing as she was frightened of increasing her pain. There was some triggering of the right little finger and there was a palpable nodule on the tendon over the proximal phalanx of the little finger.
156 Mr Ham thought the right middle finger had stabilised with a twenty five per cent impairment of the digit. In view of past triggering of the index and little finger, he thought it likely the plaintiff may need further treatment for those symptoms.
157 Mr David Barton, consultant occupational physician, examined the plaintiff in November 2010.
158 Dr Barton noted there were several features of illness behaviour demonstrated during the examination with much grimacing. There was no observed swelling, deformity or wasting of the upper limbs. There was no wasting in the small muscles of either hand. There were scars consistent with surgery. There was exquisite tenderness to light touch throughout the central part of the right palm and extending into the middle finger. There was no evidence of crepitus, although a general limitation of all finger movements on that side.
159 Muscle power was reduced throughout the whole of the right upper limb and sensation to light touch reduced from the mid forearm to the whole of the hand in a glove like distribution. He noted the plaintiff had an accepted condition of the middle finger. In his view, as the problems had not fully settled and there were a range of significant features demonstrated, that raised concerns as to the underlying level of capacity.
160 Dr Barton thought the plaintiff had a mild chronic tenosynovitis of the tendons of the right middle finger but no other medical condition. A range of other complaints suggested a degree of overlay.
161 Dr Barton saw no reason why the plaintiff could not do full time retail and certainly full time employment in her current job on full time hours and he believed motivational issues were playing a part.
162 Dr Barton noted it appeared the plaintiff had an accepted condition of the middle finger which, despite treatment, her problems had not fully settled and he noted there was a significant range of features demonstrated during the examination that raised concerns as to the underlying level of incapacity; namely, the plaintiff actually under utilising the right hand and arm and the spreading and widespread nature of her problem, which were clearly inconsistent with an apparent chronic tenosynovitis of the right middle finger, the non anatomical sensory changes and the generalised weakness throughout the right arm.
163 On 25 January 2011, the Medical Panel found the plaintiff had a 2 per cent whole person impairment resulting from the accepted right hand (middle finger) injury.
164 Mr Damian Ireland, hand surgeon, examined the plaintiff in March 2012 and later that year.
165 On the first examination, the plaintiff told him she took Nurofen about once a day and Panadeine Forte once a week. She used a hand vibrator to massage her hand twice a week. She told Mr Ireland that she attended to all normal household chores except gardening and car washing and said that hobbies had not been affected because she had been always too busy to do them.
166 On examination of the right hand, there was no obvious swelling or deformity. There was a barely detectable healed scar with was non tender. There was an unrelated nodule to the ulnar side of this in the mid palm that had the hallmarks of Dupuytren’s nodule which was also non tender.
167 There was no evidence of triggering or locking of any of the fingers and full active range of all joints of all five digits. There was no swelling over the flexor tendons, no crepitus through both active and passive range of motion and no locking. The median compression test was significantly positive at three seconds, with paraesthesia extending into the middle finger and the radial half of the right finger. The Phalen’s test was positive.
168 At that stage, Mr Ireland thought the plaintiff’s current condition was best described as continuing pain after successful trigger finger release surgery and he thought there was no evidence of ongoing pathology and expected her residual symptoms would settle spontaneously with the passage of time. He thought there was a cause and effect relationship between the nature of the work and the onset of the condition.
169 Mr Ireland thought the plaintiff would not have been able to continue with this type of work with a locked middle finger on the right dominant hand.
170 Mr Ireland noted there was currently no evidence of any ongoing mechanical obstruction of the flexor tendons. He thought there was no evidence of any functional component to the plaintiff’s present symptom complex. He thought the plaintiff was capable of resuming her present job description when employed by the first defendant.
171 Mr Ireland diagnosed a healed stenosing flexor tenosynovitis right middle finger following surgical treatment.
172 Mr Ireland noted subsequent tests showed no evidence of any underlying inflammatory condition.
173 On re-examination in December 2012, the plaintiff told Mr Ireland that her symptoms had not substantially changed. She was working sixteen hours a week, three days, three hours a day, doing office duties only. She told him of problems with sleep and also increased Nurofen and Panadeine Forte intake.
174 On examination of the hand and right wrist, there was no obvious swelling or deformity. The scar was barely detectable. There was an inordinately tender minimal nodule in the mid palm which had the hallmarks of a Dupuytren’s nodule. There was a full range of active motion to all joints of the four digits and normal wrist movement.
175 There was no crepitus or triggering affecting the plaintiff’s thumb, index, ring or little fingers. There was a minimal amount of crepitus which the plaintiff was able to reproduce by trick movements with her middle finger. There was no frank locking and certainly no evidence of triggering. The median nerve compression test was negative and the Phalen’s test was positive.
176 Mr Ireland reviewed the recent MRI scan and re-examined the wrist. There was tenderness over all the carpal bones but no differential tenderness over any specific bone and there was no obvious swelling and the provocative carpal instability tests were negative.
177 Mr Ireland noted the September 2012 MRI scan revealed an intra osseous ganglion cyst affecting the triquetrum which was unrelated to the hand symptoms.
178 Mr Ireland diagnosed possible mild ongoing right carpal tunnel syndrome and possible minimal Dupuytren’s deposit in the right palm. Mr Ireland did not think there was current evidence that the symptoms of stenosing flexor tenosynovitis were continuing.
179 Mr Ireland thought there was a discrepancy between the severity of the subjective symptoms of which the plaintiff complained and the presence of corresponding objective physical findings, indicating embellishment.
180 Mr Ireland did not believe the plaintiff’s current condition had any significant adverse effect on her social and occupational functioning and thought she had a capacity for full time in her present non manual work and indeed based on the physical condition alone, would most probably do her old job.
181 Dr Fraser, rheumatologist, examined the plaintiff in October 2012.
182 On examination, Dr Fraser noted the plaintiff could make a full fist with quite good grip strength, perhaps slightly less on the right than the left. Surgical scars were barely visible. There was rather diffuse tenderness in the region of the hypothenar. There was no triggering. Phalen’s and Tinel’s tests were said to cause paresthesia in the right middle and ring fingers but there was no sensory deficit in the distribution of the median nerve.
183 Dr Fraser did not find any triggering and there were complaints of lack of sensation. He thought in general the plaintiff’s symptoms appeared to be out of proportion to the physical findings, suggesting non organic factors.
184 Dr Fraser thought the condition, flexor tenosynovitis, at the outset may well have been caused by work. He thought ongoing symptoms were due to non organic factors. He did not consider there was any significant functional incapacity and the plaintiff was certainly fit for work that did not require rapidly repetitive or forceful use of her right hand.
185 Dr Fraser noted treating medical practitioners had not been able to suggest a definite physical basis for the plaintiff’s ongoing symptoms. Noting that there could be no doubt that she developed flexor tenosynovitis in the incident, Dr Fraser thought she certainly had not followed the expected clinical course following surgical release. He noted the findings on the second operation appeared to have been rather non specific. He noted the plaintiff probably had subcutaneous scar tissue at the surgical site but he could not exclude the possibility that the thickening was partially due to Dupuytren’s disease. He did not think ongoing symptoms related to carpal tunnel or median neuropathy.
186 Dr Fraser thought in general the plaintiff’s symptoms appeared to be out of proportion to the physical findings suggesting non organic factors may be involved. He thought her condition had stabilised and that ongoing symptoms, he suspected, were non organic rather than any ongoing physical injury.
187 In any event, Dr Fraser concluded he did not consider the plaintiff had any significant functional incapacity and she was certainly fit for work that did not require rapidly repetitive and/or forceful use of the right hand. He noted that the plaintiff was fit to do part time office work and increasing her hours to full time if she wanted to.
Lay evidence
188 Michael Newton, the first defendant’s WorkCover manager, swore an affidavit on 19 April 2012 setting out details of the plaintiff’s hours and duties and return to work duties.
189 Mr Newton deposed that the plaintiff’s redundancy had nothing to do with the alleged injury. As a result of the closure of the Werribee store, all employees were made redundant and at that time the plaintiff was performing her necessary duties as a store manager.
Film
190 The defendants relied on short surveillance film taken in 2010 and in January 2012.
Overview
191 It is not in dispute that the plaintiff suffered a compensable injury to her right middle finger and hand in the incident on the said date with triggering of the right middle finger involving both flexor tendons.
192 Following surgical release, the plaintiff developed an inflammatory condition at the site of the surgery with residual synovitis and tenosynovitis which failed to respond to conservative treatment and required further surgery.
193 I am mindful of the fact that the defendants accepted liability for the payment of weekly payments and medical expenses.
194 Following the incident, the plaintiff was absent from work for a total of two weeks and underwent two surgical procedures and numerous injections which have been funded by the defendants.
195 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[4] such admission should ordinarily be regarded as very significant:
“. . . albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[4][2006] VSCA 171
196 Although the initial diagnosis is not in dispute and counsel for the defendants conceded there is some ongoing pain,[5] some more recent examiners have questioned whether there is any ongoing organically based tenosynovitis and raised the issue of the presence of non-organic factors.
[5]T40
197 Whilst Mr Berger has at times had difficulty explaining the exact cause of the plaintiff’s ongoing symptoms, he has undertaken surgery and injections to treat her pain. In his view, the plaintiff continues to suffer significant pain in her hand and finger that it is likely to persist for the foreseeable future and have an ongoing interference with her enjoyment of life and capacity for work.
198 Dr Middleton accepted the plaintiff continued to suffer chronic pain, the majority of which was physically based.
199 On examination in late 2009, Dr Kostos found swelling and the plaintiff complained of pain consistent with the tenosynovitis noted on MRI.
200 Only on later examination in 2012 did Mr Ireland find evidence of any functional component describing the plaintiff’s condition in March 2012 as continuing pain after surgery.
201 Dr Barton whilst noting on examination in late 2011 that the plaintiff described a range of complaints that suggested a degree of overlay, thought the plaintiff had a mild chronic tenosynovitis of the right middle finger.
202 Although there was a suggestion non organic factors may be involved, Dr Fraser thought perhaps there was some residual tenosynovitis causing the plaintiff’s ongoing symptoms.
203 Whilst there is a non organic component to the plaintiff’s current presentation, I am satisfied, however, that her present condition is organically based and continues to affect her, as Mr Berger explained due in part to some stiffness in the middle finger and to a greater part due to the ongoing pain and dysfunction that pain produces.
204 Dr Kaplan, the only psychiatrist who has examined the plaintiff thought her pain and loss of capacity for employment was largely related to organic factors and not to the plaintiff’s psychiatric condition.
The Plaintiff’s experience of pain
205 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon[6] at paragraph 12:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[6](2010) 31 VR 1
206 I found the plaintiff to be an open, credible witness who gave her answers truthfully. Whilst there was some surveillance film, what was shown was consistent with the plaintiff’s viva voce evidence that she continues to use her right hand, although she tries to use her left. She was shown simply picking up three tomatoes in her right hand and then carried that small bag and two loaves of bread in her left hand. She was not shown engaging in any repetitive or heavy activities involving her right hand.
207 Whilst Mr Ireland noted some embellishment, he was the only practitioner to make this observation. Although Mr Ham thought the plaintiff may not be exerting maximum effort on examination, he considered this inhibition probably indicated she was frightened of increasing her pain. In any event he found a permanent impairment of the right finger for the purposes of the AMA Guide and thought it likely the plaintiff may need further treatment.
208 I accept that since the incident, the plaintiff has experienced constant though variable pain in her right hand and middle finger and has to be careful at all times with any activity involving her hand. She has never been pain free and her pain is aggravated even with minor activity and at times, becomes severe and debilitating.
209 The plaintiff also has a stabbing pain in her hand and palm and numbness and swelling. She continues to have pain in her middle finger, particularly with flexion and extension and her range of movement is restricted. She has difficulty with or following intrinsic physical activity involving her middle finger and generally experiences increased pain with repeated or prolonged activities.
210 Further, the plaintiff experiences an aching pain running up into her right arm.
211 As a result of her pain, the plaintiff’s right hand is weaker than her left and she has problems with her grip as confirmed on a number of medical examinations with a much reduced range of right grip strength compared to left.
Treatment
212 The plaintiff has undergone two surgical procedures and in excess of ten injections without substantial relief of her pain, although the triggering has resolved.
213 The plaintiff continues to take over-the-counter medication on a regular basis. At times she requires prescription medication for relief of more significant pain.
214 On a regular basis, the plaintiff uses a hand massaging machine at home to give her hand more flexibility. Further, most times she wears a right wrist brace for support and protection of her hand.
Restrictions
215 Since the incident, the plaintiff has continued to have problems getting a restful sleep and sometimes wakes because of hand pain.
216 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon[7] at paragraph 45:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
[7][2010] VSCA 69
217 As a result of pain and weakness in her hand, the plaintiff has difficulty undertaking a range of activities as confirmed by her son whose evidence was unchallenged.
218 Since the incident, the plaintiff has continued to have difficulty with every day activities requiring manual dexterity with her dominant hand such as bathing and grooming.
219 The plaintiff no longer is able to enjoy her main hobby of gardening because of her inability to use her right hand freely. Her son now undertakes the necessary task whereas previously the plaintiff enjoyed planting and looking after the garden generally.
220 The plaintiff is restricted in the amount of housework she can do, requiring her son’s assistance for heavier tasks in and outside the house. She needs assistance with cooking and is unable to cook with heavy pots. .
221 Because of her pain, the plaintiff is restricted in her level of social interaction, in particular her ability to entertain at home.
222 The plaintiff has difficulty driving for extended periods due to pain gripping the steering wheel and her son tends to drive her where possible.
223 In addition to her pain and limited movement, significantly the plaintiff has been unable return to full time unrestricted work in retail, an area in which she loved working.
224 Whilst the plaintiff was somewhat of a stoic in returning to work soon after both operations,[8] she was never able to resume full time unrestricted duties and continued on modified duties until made redundant in early 2010.
[8]See Nettle JA in Dwyer v CalcoTimbers Pty Ltd No 2 (2008) VSCA 260 at paragraph 4
225 Treaters Mr Berger and Dr Clemens considered the plaintiff is unable to do repetitive work involving her right hand and that she is restricted to lighter duties that avoid any pressure or gripping with the right hand – a view shared by Dr Fraser. Dr Middleton, occupational therapist thought the finger injury had resulted in a serious reduction in the plaintiff’s ability to remain in employment.
226 Mr Brearley considered the plaintiff’s chronic tenosynovitis, due to physical injury only, resulted in her being unfit for full time unrestricted manual work or her pre injury job.
227 Mr Ireland and Dr Barton, who both thought the plaintiff had unrestricted work capacity, did not consider the type of tasks she was required to undertake in the clearance centre unpacking plastic and other tasks which caused her pain.
228 Taking into account all the evidence, I am satisfied that the plaintiff has a serious injury the consequences of which meet the statutory test of seriousness.
229 As the plaintiff’s hand and finger pain has persisted for nearly five years despite extensive treatment, I am satisfied her condition is permanent as her treating hand surgeon, Mr Berger, confirmed.
230 Accordingly, I grant leave to the plaintiff leave to bring proceedings for damages for pain and suffering.
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