Magiera v Jippo Enterprises Pty Ltd
[2012] VCC 2162
•18 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03060
| KRZYSZTOF MAGIERA | Plaintiff |
| v | |
| JIPPO ENTERPRISES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 December 2012 | |
DATE OF JUDGMENT: | 18 December 2012 | |
CASE MAY BE CITED AS: | Magiera v Jippo Enterprises Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2162 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – permanent serious impairment of loss of body function – permanent serious disfigurement – left index finger
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Humphries v Poljak [1992] 2 VR 129; Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357; Richards v Wylie (2000) 1 VR 79; Nichols v Robinson [2001] VSCA 11; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Ingram v Ingram & Anor [1996] 2 VR 435; Reeve v Jalena Hall Pty Ltd & Victorian WorkCover Authority [2010] VCC 1471; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Hangay | Zaparas Lawyers |
| For the Defendant | Mr I Gourlay | Thomsons Lawyers |
HIS HONOUR:
1 In this application, Mr Hangay appeared for Mr Magiera, and Mr Gourlay appeared for the defendant.
2 The applicant’s solicitors received a letter dated 14 July 2012 indicating a negative determination of the plaintiff’s application for a serious injury certificate, which was Exhibit A to this application.
3 On 15 July 2010, the plaintiff issued an Originating Motion seeking leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (“the Act”) for leave to be granted to issue proceedings in this matter.
4 The plaintiff was born in June 1982 and is aged thirty. He was aged twenty at the time of the alleged injury. At the time, he alleges he was in good health, had no restrictions and could carry out his duties without difficulty.
5 Mr Hangay, in opening, advised the application concerned two serious injuries pursuant to the definition contained in s134AB(37) of the Act:
(i) Pursuant to part (a), a permanent serious impairment of loss of body function, which he identified as a left index finger; and
(ii) Pursuant to part (b), a permanent serious disfigurement of the left index finger.
6 Mr Hangay confirmed that the original application for a part (c) injury had been withdrawn and was not to be proceeded with.
7 Mr Gourlay, on behalf of the defendant, indicated that liability was denied, and maintained, as to both alleged injuries, the plaintiff would fail to satisfy the narrative tests under the relevant headings of the definition.
8 Mr Hangay, as to consequences, relied upon pain and suffering in regard to both injuries, as detailed in s134AB(38)(b)(i) of the Act.
9 Insofar as the law relevant to such determinations as to the alleged part (a) and part (b) injury is concerned, the Court is now assisted by the application of s38B, being the statutory recognition of the principles expounded by the Supreme Court, as it then was, in the Appeal Division in Humphries v Poljak [1992] 2 VR 129, 140, and generally by ss(19)(a).
10 The Court continues, of course, to be assisted in such determinations by the general principles expounded in Humphries v Poljak and in Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357. Section 38(h) has amended the common law as expounded in Richards v Wylie (2000) 1 VR 79; however, the textual division is important to consider as expounded in that case.
11 While I assume it is not necessary to state, one of course understands the definition of injury relevant to the cases to which I have referred, does not include the word “permanent”, which has now been substituted, it previously being in the definition the words “long term”.
12 The plaintiff swore two affidavits, Exhibits B1 and B2. Essentially, the plaintiff maintained that the injury to his finger has restricted his work activities considerably, and also his social activities and generally the use of his left hand.
13 The plaintiff tendered Exhibits A to G; the defendant tendered Exhibits 1 to 3. The plaintiff was then cross-examined. In this case, the hearing, and indeed the submissions, lasted a period of some two-and-a-half hours. The fundamental issue as identified by both counsel, and as put to me in opening by Mr Gourlay, was whether the consequences of each such injury satisfied the narrative test. Each counsel spoke to this in their final submissions.
14 This Court must look at the totality of consequences of the alleged injuries and apply a value judgment as explained by Winneke P, as he then was, in Nichols v Robinson [2001] VSCA 11, at [14] to [19]; such approach being further endorsed by the Court of Appeal in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292.
15 As to the part (b) application, I viewed the finger of the plaintiff in Court, as did counsel, and I thank the plaintiff for this. The scarring was obvious, albeit not overly ugly or unsightly. As Mr Stapleton, plastic surgeon, said (see Exhibit 3, his report of August 2010 at defendant's Court book pages 16 to 19, and in particular paragraph 18):
“It is a five centimetre reddened scar over the back of the left index finger.”
16 In particular, see the photographs demonstrating that at page 19 of the Court Book. Also at paragraph 18, Mr Stapleton pointed out that there was no functional overlay, there was no exaggeration by the plaintiff, and there were no psychological factors.
17 The plaintiff's hand surgeon, Mr Tham, in his report of 2 December 2012, referred to the scar simply as being a healed scar (see Exhibit E, the Plaintiff’s Court Book, page 35.1). Mr Franc (see Exhibit F2 at page 43), referred to the scar as being non adherent with no sensitivity along it.
18 In the plaintiff's affidavits the only reference is at paragraph 9 to the scar itself being redder than the surrounding skin; and further, at paragraph 17, he expresses annoyance at the scar, which he says:
“I feel I should not have.”
19 I was referred to Ingram v Ingram & Anor [1996] 2 VR 435. It is clear that there are no psychological or psychiatric factors to take into account. While I find a permanent disfigurement, the question for this Court is whether it satisfied the definition of being “serious”. I accept the subjective concerns of the plaintiff; however, when viewed objectively, they are not such, that is the consequences, as to satisfy the requisite onus, and I would dismiss the part (b) application.
20 Coming to the part (a) application, the following facts appear. Firstly, the plaintiff is right-hand dominant; secondly, the plaintiff suffered a crush injury to the proximal phalanx of the index finger on 24 February 2008. Despite the references in Exhibit C, Plaintiff's Court Book at page 47, to there being a deformity of the middle phalanx, it is clear that the crush injury is to the proximal phalanx. Thirdly, open reduction was effected and internal fixation performed on 3 March 2008 by Mr Weymouth, although there is no report from Mr Weymouth.
21 Fourthly, the wound has healed and he was subsequently seen in the hand clinic at the hospital until 5 March 2009 for mobilisation exercises. Fifthly, he went back to work in May 2008 for a short time, as I understand, with the defendant. And thereafter has undertaken a job as a subcontractor installing Foxtel cable services, which job he has performed for a period of four years.
22 Since that time, he has had no medical treatment but for treatment required insofar as two exacerbations. In this regard, see the general practitioner’s reports, Exhibit D at the Plaintiff’s Court Book page 34; a report of October 2012. It would appear that the first exacerbation occurred in August 2010, two-and-a-half years post accident. The general practitioner confirmed the flexion abnormality which the plaintiff still has; confirmed that he was suffering pain, and he was placed on anti-inflammatory medication.
23 Subsequently, on 24 January 2012, the plaintiff again reported to the general practitioner suffering pain. As a result of that, he was referred to the hand surgeon, Mr Tham, by the general practitioner (see the report from Mr Tham, Exhibit E, dated 12 February 2012 in the Plaintiff's Court Book at page 35.1).
24 An x-ray, Exhibit G, was obtained by the hand surgeon and it showed a healed fracture. The specialist referred to a history of a short onset of pain with spontaneous resolution. There was no need for any further surgery or any therapy; there was no need, according to the surgeon, for any further treatment. There was an issue as to whether there may, in future, be further discomfort. The plaintiff did not attend a planned review.
25 As I said, Mr Magiera saw Mr Flanc, a vascular and general surgeon. There are two reports of Mr Flanc, Exhibit F1 and F2 respectively, of May 2012 and June 2012. At page 42 of those reports, it is notable that he stated:
“The pain reported was not of chronic pain, but of intermittent pain to the finger at the back of the proximal phalanx. There was also pain reported at the right side of the proximal interphalangeal joint. He expressed by way of history that such pain had been more severe in the last 12 months.”
26 At page 43, Mr Flanc, on examination, found:
“The alignment of the finger was normal and there was a well healed non tender scar.”
27 He also found, as against his earlier report, that at this time the sensation to touch was normal. At page 45, he dealt with the question of pain. The pain as indicated was not, as he found it, at the site of the injury. He noted that there would be persisting general discomfort, but he could not explain, indeed he said it was inexplicable, how there was pain happening at the site, that is at a radial site of the proximal interphalangeal joint; that not being the site of the injury.
28 In oral evidence, the plaintiff confirmed the affidavits and said that after he had returned to work in May 2008, essentially what he had done was adapted his work processes in order to avoid pain being caused by the use of his finger. He agreed in cross-examination that the current position insofar as his finger was concerned, was as described by Mr Stapleton in a report of August 2010, that is that there was a slight restriction in flexion ability, that he had a limitation of sensation at the tip of the finger, and that he suffered pain at times when it was cold, and he also suffered difficulty from grasping and lifting heavy weights, especially as he had to work, as he described in evidence, in roof cavities.
29 He said that the pain was ongoing, and as I have indicated in the performance of his work and social duties, he said that he simply attempts to protect himself from such pain.
30 Insofar as his work capacity was concerned, it is clear that he was able to work twenty-three days in a month. He has, as I have said, held his job as a cable installer for Foxtel for the last four years. He indicated that apart from the difficulties of performing his occupation, he also had limitations by way of recreation. He explained that he could no longer rock climb because of the importance of having total capacity in regard to his hands, and in particular, could no longer mountain bike ride because of the use of the left hand required to apply the brake.
31
As he said, insofar as the continuing restrictions, the fact was that he has to work, and in performing that work, he has been required to deal with ongoing pain. He said he takes painkillers as needed. It is noted in
Mr Flanc’s report at page 39 that he was of the view that Mr Magiera coped very well with his ongoing occupation.
32 Mr Gourlay, in final submissions, similar to the opening, submitted that the case at its highest is set out in paragraph 4 of Exhibit B2. That is that the pain suffered in this instance occurs every few days according to the plaintiff. He referred me to a determination of Judge Saccardo in Reeve v Jalena Hall Pty Ltd & Victorian WorkCover Authority [2010] VCC 1471. He also referred within that case to Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 and to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260. His submission was, as I have said, as he opened, that the evidence before the Court was not sufficient to satisfy the test required.
33 Mr Hangay referred me to Sutton v Laminex Group Pty Ltd (2011) 31 VR 100, and in particular, stressed that it would be a wrong headed approach, and indeed it was the view of the Court of Appeal that it would be a wrong headed approach, for Courts to disadvantage a plaintiff who was clearly a stoic. There is no doubt that in this case Mr Magiera is a person who has got on with his life, despite his injury. I believe in no way that I have taken into account his stoicism to his disadvantage.
34 Mr Hangay also referred me to the understanding of the issue of pain itself. That matter was referred to in Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592. However, I do point out that the circumstances are somewhat different. There had been an excision of the distal portion of the thumb in that case with a reattachment operation undertaken, and the reference therein to symptomatology related to persistent daily pain, requiring frequent medication. Clearly, the circumstances as have been given in evidence, as I have found them to be, do not reflect that position.
35 In assessing the consequences of this injury and the part (a) application to the index finger, I regard it as significant, firstly, that the plaintiff's injury has been occasioned to his non-dominant left hand, and that in these circumstances it has marginally less impact upon his day-to-day life than an injury to a dominant hand would. Secondly, the plaintiff has been able to manage, albeit with some pain, the physical work involved with installing Foxtel systems. Thirdly, the plaintiff is able to manage the physical demands which he is presently exposed to, and is working full time, and indeed continues to work on weekends.
36 By way of medical history, in the last four years the plaintiff has only been required to consult a doctor on two occasions to assist him in managing his pain levels, and as I have indicated, he has had modest amounts of over-the-counter analgesia, and continues to use those on that basis. As he says, however, he is unable to indulge in the sports he previously enjoyed, that is prior to the accident, of mountain bike riding and rock climbing.
37 Consideration of the above referred to evidence provides the basis on which to assess the level of the plaintiff’'s pain, and the consequences of the injury to him. Unfortunately, in such consideration, I have determined that I am not satisfied that the plaintiff suffers the degree of consequences from this injury to satisfy the requirement under the Act to be classified as a “serious injury”.
38 Notwithstanding the presence of numerous effects of the plaintiff’s injury which influence his lifestyle, as I have referred to, and influence it in a negative way, I have determined that the definition of “serious injury”, as employed by the Act, and taking that into consideration, I am persuaded that the plaintiff’s impairment can be described as “significant”. Thereafter, I am not satisfied that such impairment is such as to be appropriately described as being more than significant or marked, and as being at least very considerable.
39 In the circumstances, I am not satisfied the plaintiff has established his entitlement to bring common law damages, which is the order that he seeks. I would therefore dismiss the application.
40 I order that the plaintiff pay the defendant’s costs on Scale D up to and including 31 August 2010, and thereafter on the County Court scale to be assessed by the Costs Court in default of agreement.
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