Marcantonio, Franco v P and M Doherty Pty Ltd and VWA
[2009] VCC 1769
•27 November 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES/COMPENSATION
SERIOUS INJURY
Case No. CI-09-00447
| FRANCO MARCANTONIO | Plaintiff |
| v | |
| P & M DOHERTY PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 November 2009 |
| DATE OF JUDGMENT: | 27 November 2009 |
| CASE MAY BE CITED AS: | Marcantonio, Franco v P & M Doherty Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1769 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether an injury to the plaintiff’s left thumb and index finger resulted in an impairment of the plaintiff’s left hand which produced consequences which were at least very considerable: section 134AB(38)(c).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Adams QC with | Kenyons Lawyers |
| Mr N Dubrow | ||
| For the Defendants | Ms J Forbes | Herbert Geer |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 9 February 2009 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant .
2 The plaintiff seeks leave to bring such proceedings for pain and suffering.
3 Mr A Adams QC appeared with Mr N Dubrow of Counsel for the plaintiff, and Mr J Forbes of Counsel appeared for the defendants.
4 The body function which the plaintiff says has been lost or impaired is his left hand.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
The plaintiff tendered his Court Book (“PCB”), pages 10-15; 27-30; 31-43; 52-54 and 57-61, and from the defendants’ Court Book (“DCB”), pages 65- 66: Exhibit A
•
The defendants tendered their Court Book, pages 21-28; 33-37; 42-45; 50- 53; 60-64 and 67-69: Exhibit 1
• The defendants also tendered the following documents:
ƒ Casa D’Abruzzo documents: Exhibit 2 ƒ Grocon documents: Exhibit 3,
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(d)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(g)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[3]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background
9 The plaintiff was born on 31 August 1954. He is now fifty-five years of age. He is a married man with two adult children who are independent of him.
10 The plaintiff migrated to Australia in 1964 when he was ten years of age. He was educated to Year 12 level.
11 The plaintiff conducted a business known as MarK Anthony. It manufactured clothing. The plaintiff owned the business and the factory in which the business was conducted. I gathered that he was the principal worker within the business.
12 The business hit hard times. It accumulated debts. The plaintiff sold the factory and his home and paid off all his debtors. He was out of the business altogether and free of his debts by about 1993.
13 The plaintiff used his skill as a cutter from 1993 to undertake freelance work. However, that also came to an end when the businesses for whom he was undertaking cutting work went offshore.
14 The plaintiff saw a solicitor in 1999. He instructed that solicitor to make a claim for compensation for permanent disability. The claim was based upon an alleged permanent disability to the plaintiff's back, neck, left arm and left hand.[4]
[4] DCB 21
15 The application was supported by an affidavit sworn by the plaintiff on 17 August 1998. In that affidavit the plaintiff said that the injuries prevented him from engaging in tenpin bowling, golf and jogging.[5]
[5] DCB 27
16 Ms Forbes cross-examined the plaintiff regarding the consequences to him of the injuries to his back, neck, left arm and left hand. She asked the plaintiff to compare what he said in the affidavit in support of the permanent disability application with the principal affidavit he swore in support of this application. She specifically referred the plaintiff to his evidence that he deposed to the fact that the injury to his left hand has prevented him from engaging in tenpin bowling and golf.
17 The plaintiff acknowledged that what he said in the affidavit in support of the permanent disability application was true. He said that his capacity to engage in tenpin bowling and golf was interrupted for about seven years. However, he said he recovered from those injuries.
18 Mr Adams asked the plaintiff to explain what he was like physically before he commenced employment with the first defendant in 2002. The plaintiff said:
"Q: What did you do? What was your body like and what did you do
to get back to shape?---A:
I'll be quite honest with you, I was really big. I couldn't even do my shoelace up. I was just - let myself go. I was about 125 kilos and I said, this has got to stop. So I gradually started walking. From walking I started building a jog and then from there never looked back and got really - and I got to 78 kilos. It was just something compulsory for me to do and I got my body back in shape."[6]
[6] Transcript 45
19 I accept the plaintiff’s evidence that he worked very hard to keep his business running. I accept his evidence that he suffered injury as a consequence of the duties he performed. The medical evidence tendered by Ms Forbes verifies that the plaintiff did suffer compensable injuries prior to the date upon which the permanent disability application was made.[7]
[7] DCB 33-37; 42-45; 50-53; 65-66 and 67-69
20 However, Mr Adams referred me to the report of Dr Fraser, rheumatologist, who examined the plaintiff on 20 January 1997. Dr Fraser was not convinced that the plaintiff was suffering any ongoing incapacity.
21 Mr Jones, orthopaedic surgeon, examined the plaintiff 9 September 1999 and was of the opinion that the plaintiff had suffered a fracture of the left radial head. He considered that the plaintiff had lost 10 per cent industrial capacity in his left arm.[8] He considered that the plaintiff had no assessable loss of function in his neck or lower back.[9]
[8] The left arm injury occurred when the plaintiff fell while delivering garments
[9] Dr Fraser and Mr Jones were the last medical practitioners to examine the plaintiff relevant to his permanent disability claim
22 I also accept the plaintiff’s evidence that he was in a poor state of physical health before he made a determined effort to recover his physical health. The latter is no doubt the case because the plaintiff then set about working in an arduous occupation for the first defendant as a labourer and in other occupations which I will refer to below. I find that he could not have engaged in that work unless he had good function in his left arm.
The Injury
23 The plaintiff was employed by the first defendant as a general labourer. His duties involved laying pipes, preparing screenings and other related tasks relevant to that work.
24 On 6 November 2005, the plaintiff was standing in a trench pushing pipes into place. The pipes had been lowered into the trench by an excavator. When the excavator released a pipe, the plaintiff’s left thumb was caught between the pipe and a short crowbar he was using to push it into place. The plaintiff suffered a partial amputation of the top part of his left thumb.
The Plaintiff's Medical Treatment
25 The plaintiff was taken to the Emergency Department of the Sunshine Hospital shortly after the incident occurred.
26 The medical practitioners who attended upon the plaintiff noted that he had suffered an amputation of the tip of his left thumb and a portion of the nail base. The plaintiff underwent surgery to treat the damage to his left thumb.
27 Mr Ham, consultant plastic surgeon, examined the plaintiff in April 2008. He described the nature of the damage and the surgical procedure undertaken at the Sunshine Hospital:
"Left Thumb
The left thumb tip had been amputated and the thumb was 6 mm shorter than the normal right thumb. The nail was also diminutive (0.9 cm compared to 1.5 cm on the normal thumb). On the thumb there was a cross finger flap measuring 2.3 cm x 2.4 cm.
Left index finger
On the dorsum of the index finger there was a donor site measuring 2.5 cm x 2 cm which had been covered by a full thickness skin graft as mentioned above. This graft was slightly pigmented. On the radial side of the graft the marginal scarring [was] 2cm in length and 2 mm in width and slightly raised.
Left wrist
The donor site for the full thickness graft was marked by a 5 cm long transverse scar slightly pigmented and lying 1 cm proximal to the wrist crease."
28 I was invited to look at the plaintiff’s left hand. It was very apparent to me that the plaintiff's left thumb is shorter than his right thumb. The pulp appears to be round with a harder look than the pulp of his right hand. The nail is shorter. The adjacent index finger has a scar of about 2 centimetres up to the first joint. Over the dorsum of that finger up to the first joint is an area from which the donor skin was taken.
29 While I was looking at the plaintiff’s left hand he was asked to flex his left thumb and index finger. He appeared to only be able to flex them to about 50 per cent of full movement.
30 The plaintiff has had very little medical treatment since the surgery to rectify the damage to his left thumb. He now takes Panadol when he is unable to tolerate the pain which he experiences.
Pain and Suffering
31 There was no issue that the plaintiff suffered an injury to his left thumb as a result of the incident. There was no issue that as a consequence of the surgery, damage was caused to the adjacent left index finger. There was no issue that the injuries resulted in an impairment of the function of the plaintiff’s left hand, and that the impairment is permanent.
32 The real issue is whether I accept that the plaintiff returned to a level of functioning from the injuries he claimed he suffered in the permanent disability claim, and whether the consequences to him of the impairment of function of his left hand are at least very considerable.
33 Ms Forbes submitted that the work which the plaintiff undertook after the incident was heavy work which the plaintiff could not have undertaken unless he had a reasonable degree of function in his left hand.
34 The plaintiff admitted that he returned to work with the first defendant from about January 2006 until about June 2007. He said that he was no longer laying pipes. He worked with a pit builder. I understood that to mean that formwork was created. Concrete was poured into the formwork. The plaintiff then physically tested the concrete pour.[10]
[10] Transcript 14-15
35 The plaintiff obtained a second job with a restaurant known as ‘Casa D’Abruzzo’. He said he worked there from about February 2006 and until about November 2006. He said that he worked about 20 hours per week on Saturdays and Sundays and sometimes midweek. He said his job was mainly supervising, although he would carry some plates from tables. He said that rather than carrying six plates at a time, which he was capable of doing before he was injured, he would only carry two at a time.[11]
[11] Transcript 31-32
36 The plaintiff obtained a job with Grocon in June 2007 as a labourer. He said the job involves assisting carpenters. He cleans up the workplace. He might use a hand tool like a cordless drill.[12]
[12] Transcript 18
37 The plaintiff resumed work as a cutter in about 2008. He purchased a cutting table which he described as being as big as the bar table. He obtains work from a friend. He is paid in cash and on some occasions with a bottle of whisky. He traces the pattern and uses an electronic cutting device to cut the fabric.[13]
[13] Transcript 19-21
38 Ms Forbes submitted that the foregoing points to the plaintiff having good function in his left hand inconsistent with someone claiming to have an impairment with consequences which are at the least very considerable.
39 However, the plaintiff described a number of deficits associated with the injury to his left arm and the consequent damage to his left index finger. The plaintiff said that the pulp of his left index finger is very numb. When he touches it he has some sensation, but very little. The scarring on the left side of his index finger and over the dorsum of the index finger at the point where the donor skin was taken is also numb.
40 The plaintiff is unable to fully flex his left thumb and left index finger. He is able to flex them perhaps to about 50 per cent. He is unable to fully make a fist because of the lack of flexion in his left thumb and left index finger. The latter results in his inability to grip properly.
41 Mr Adams asked the plaintiff to describe why he uses Panadol as a painkiller:
"Q: You mentioned that taking Panadol. Do you remember that before lunch you were asked and you said you sometimes took Panadol?--- A: Yes. Q: Are you talking about - listen and just answer the question - you mentioned Panadol, were you talking about just after the accident or were you talking about now?--- A: It's when it gets sore I might take a painkiller or Panadol, but I try
not to take them, but I persevere with the pain.Q: Is that a pain which develops at work or is it a pain you get at
other times?---A: Especially winter times, especially winter times with the cold
weather it gets really sore.Q: You say it's really sore. What does it feel like?--- A: It feels like some throbbing and it gets like as if it is going to drop off [in] winter time, especially winter time. I've got to keep a glove or keep it in my pocket or keep it warm because it feels completely dead, as if it's going to drop off. That is how it feels, very, very painful. Summer time is not as bad. Q: Does that worry you at night at home after a day's work?--- A: Yes, well, I've got to keep it warm or what have you, yes, run it under hot water or something, yes. But then it gets - it's all right I've got to persevere with it, yes."[14] [14] Transcript 44
42 The plaintiff also described quite graphically the consequences to him of suffering the injury to his left thumb and the consequent damage to his left index finger in his affidavits sworn 17 October 2008 and 22 October 2009.[15]
[15] PCB 12-15 and 28
43 In addition to the foregoing consequences, the plaintiff said that undertaking fine manipulative tasks is difficult, such as picking up small objects in between his thumb and index finger in a pincer motion. He also described shaving and doing up a tie as tasks which he finds difficult. Indeed, Ms Forbes asked him specifically whether he had any difficulty doing up the tie which he wore to Court. The plaintiff said that his wife did the tie up for him.
44 The plaintiff said that he had given away competition tenpin bowling before he commenced employment with the second defendant. However, he enjoyed tenpin bowling socially and continued with that recreation until he was injured. He played golf as often as he could, given that he had to organise playing golf around his working hours.
45 I accept all of the plaintiff’s evidence. It is very plain on any viewing of the plaintiff’s left hand that he has a disfigured left thumb and left index finger. He has significantly reduced flexion which makes it difficult for him to flex both digits and to make a fist and grip objects.
46 I accept that he is unable to manipulate fine objects even to the extent of doing up his shoelaces and doing up the tie. Human beings are said to be the only beast on the planet capable of undertaking the pincer movement of the thumb in opposition to index finger. It is a critically important function in doing a host of daily tasks which are often taken for granted.
47 I accept that making a fist and gripping are, likewise, functions of a hand which are important. It is a function which again is something which is a critically important function in doing a host of daily activities which are also often taken for granted.
48 I accept the plaintiff’s evidence that he returned to playing tenpin bowling and golf. I understand what is involved in tenpin bowling. A bowling ball has three holes into which one inserts the thumb, index and long fingers. I can well understand the difficulty encountered by the plaintiff in attempting to insert his seriously damaged left thumb into the thumb hole, and his damaged left index finger into the index finger hole.
49 I can also understand that gripping a golf club with an interlocking grip would be difficult because of the force that would need to be applied through the index finger and the thumb. I observed that when the plaintiff was being cross-examined by Ms Forbes about his capacity to grip a golf club that the plaintiff formed his left and right hands into an interlocking golf grip in a demonstration of how he would grip a golf club in order to describe the difficulty he has in doing that.
50 I accept that the plaintiff has given away golf because he is unable to play it effectively. I think the point made by Mr Adams is well made, that golf, and indeed any other sporting pursuits which are taken seriously by someone who can no longer play that pursuit effectively, is the very basis upon which someone would give it away.
51 I do not accept that because the plaintiff has pursued employment since he suffered injury that it necessarily militates against a finding that the consequences for the plaintiff are at the least “very considerable”.
52 In Dwyer v Calco Timbers Pty Ltd (No 2),[16] Nettle JA made a very pertinent observation:
“… I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.[17]
[16] [2008] VSCA 260
[17] at paragraph 3
53 There can be absolutely no doubt in the case of the plaintiff that he is a person of strength of character who never resigned himself to his injury. The question which arises for consideration, however, is whether that is because the impairment of function of his left hand has consequences which are easily tolerated by him.
54 The plaintiff is a fifty-five-year-old man. It is abundantly clear to me that he has been a hardworking man all of his life. The nature of his evidence gave me to believe that work came first in his life. The time available for him to pursue his sporting pursuits of tenpin bowling and golf had to fit into his working regime.
55 I think the point made by Mr Adams that, like all hardworking people who work long hours, the occasions when a recreational or sporting pursuit can be engaged upon has to be fitted in somewhere. It means that when there is time available that the recreational or sporting pursuit when engaged upon is all the more a treasured experience.
56 The plaintiff struck me as someone who attacked his sporting and recreational pursuits with the same vigour as he attacked his working life. I have no doubt at all that he thoroughly enjoyed his tenpin bowling and golf. He can no longer bowl nearly as effectively as he used to, and I accept that he has given away golf because he cannot play it effectively.
57 The plaintiff is dominant left-handed. However, due to the intervention of his mother at an early age, he developed the habit of writing with his right hand. Otherwise most of the manual operations he needs to undertake would be performed with his dominant left hand.
58 It is far too easy to simply say that the plaintiff has only suffered an injury to his left thumb and left index finger. To say that would be to seriously diminish their importance in the overall function of his left hand.
59 The conclusion I have reached is that I accept that the plaintiff has suffered all of the consequences which I have summarised above. In my value-judgment, the permanent loss of his capacity to use his left hand in a full, free and unrestricted way is a dramatic loss given the importance of dominant hand function in nearly every daily activity he engages upon.
60 Therefore, I consider that the consequences suffered by the plaintiff deserve the description “at least very considerable” when judged by comparison with other cases in the range of possible impairments or losses of a body function, which may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
Conclusion
61 On the basis of the foregoing reasons, findings, and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for pain and suffering arising out of his employment with the defendant.
62 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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