Martin v Victorian WorkCover Authority
[2013] VCC 858
•4 June 2013
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04984
| STEVEN MARTIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 3 June 2013 | |
DATE OF JUDGMENT: | 4 June 2013 | |
CASE MAY BE CITED AS: | Martin v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 858 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – part amputation of the index finger
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Woolworths v Warfe [2013] VSCA 22; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260.
Judgment:Leave granted to the plaintiff to bring proceedings for the recovery of pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC with Mr D J N Purcell | Arnold Dallas McPherson |
| For the Defendant | Mr A J Moulds SC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
1 This is an application for leave to commence proceedings for the recovery of pain and suffering damages only. The plaintiff relies on s134AB(37)(a) and (b) of the Accident Compensation Act 1985 (“the Act”).
2 The injury relied on is a crush injury to the left index finger suffered on 19 January 2011. It required surgical amputation of the distal phalanx.
3 The defendant admits it is a compensable injury suffered after 20 October 1999.
4 The defence to the paragraph (a) application is that the consequences in terms of loss of enjoyment of life might be marked but not “at least very considerable”. (Transcript 5)
5 The defence to the paragraph (b) application is that the disfigurement does not satisfy the test of being “serious”.
6 They are really single issues for my determination. I note the recent repeal of s135AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied the repeal. Nevertheless, clear, proper and adequate reasons are required. It has been said often that a serious injury application necessarily involves a substantial amount of “value judgment” which does not of itself admit a detailed reasoning that is explicit.
7 In large part, these are applications involving matters of value judgment, opinion or impression: Woolworthsv Warfe [2013] VSCA 22 at 129 and 130.
8 The crush injury has meant the loss of effectively one-third of the index finger but the impairment of function is properly that of the hand, as well as the finger. Both parties agreed with that approach to body function. To a large extent the injury, and to a certain extent the impairment, speak for themselves. It is the level of the consequences that is in issue.
9 I have seen the plaintiff’s hand at close range. He has demonstrated its peculiarity when holding a fork for example. He has also demonstrated the awkwardness and the difficulties in several positions when indulging in his sport of archery. In addition, there are photographs at Plaintiff’s Court Book pages 38 and 39 of archery demonstrations. Other photographs at Defendant’s Court Book pages 3 and 4 and at pages 11 to 13 are provided but do not give anything like a clear picture compared with the close-up observations I had the benefit of.
10 There is no relevant treatment available to the plaintiff that will alter consequences in any material way. They are not only there for the foreseeable future but are lifelong.
11 I found the plaintiff’s evidence credible and reliable. He was an impressive witness whose credit, in my view, was unimpeached. He is a well-motivated man, active and energetic. He has returned to full-time work. He accommodates his impairment of the function of the hand and finger sensibly.
12 That return to full-time work is not, in my view, to be taken as evidence militating against serious pain and suffering consequences in this case. The principles discussed in a number of cases are relevant: Sumbulv Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 and Sutton v Laminex Group Pty Ltd [2011] VSCA 52.
13 This is a case where there is a body of relevant evidence that leads me to the view that his capacity for full-time work in his trade, with the adjustments he makes, reflects on his stoical attitude and genuineness. He works around the injury. His stoicism should not be to his detriment: Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260.
14 Consequences described in the plaintiff’s affidavit at paragraphs 22 and 23 are essentially unchallenged. Further consequences described in paragraphs 52, 53, 54 and 55 are similarly not in contest. I note the last paragraph in the plaintiff’s affidavit at Plaintiff’s Court Book paragraph 23 should be numbered 55 and not 53 as there is already a paragraph 53.
15 While sitting in court, I observed the plaintiff over several hours, both behind counsel and then in the witness box. He kept his left hand in his pocket for most of the time. If anything, I find the plaintiff understates the consequences. They impact on his work, what he wears on his hand, his ability to sleep and at times impact on self-consciousness and embarrassment.
16 In my view, it is relevant that a man has to continually guard against knocking his finger, protecting it from the cold and wearing different gloves (Transcript 6-9). He even needs a plastic guard on the finger when in bed at times (Transcript 8).
17 These lifelong consequences for the plaintiff are, in my view, at least very considerable in terms of enjoyment of life.
18 The medical evidence is in such short compass and uncontroversial, that it barely needs recording. Apart from brief treaters’ reports, there are only two specialists who have examined the plaintiff. There are two reports from Mr Murray Stapleton in 2011 and 2013 and one from a Mr Donald Marshall in 2011. Both these doctors are specialist surgeons.
19 The general practitioner, Dr Salvador’s final word at Court Book page 25 was as follows:
“Mr Martin's finger stump has healed. While he is able to resume pre-injury duties, he will be incapacitated forever when needing to use his left hand for fine, dextrous activities, such as typing/keyboard activities or playing music.”
20 Mr Stapleton, who saw the plaintiff twice, says, at Court Book page 35:
“The prognosis is that he has reached maximum medical improvement. Being an adult and having an amputation as an adult, his left hand will never be as efficient as was formerly the case. His activities of daily living involving manipulating of small objects and for other matters discussed throughout this report, his activities of daily living are significantly affected because of this injury. For similar reasons, his capacity for employment is also impaired." He saw the plaintiff again in 2013, and he said at p.30 of the court book: "His condition is now stabilised. He has profound difficulties involving his left hand, for reasons stated. Activities of daily living are also affected. In fact, nothing he does with his left hand is as efficient now as was the case prior to his injury.”
21 Mr Marshall saw the plaintiff at the request of defendant in July 2011 and he really gives an AMA percentage assessment report. He does comment on consequences. He stated, at Defendant’s Court Book page 7:
“The diagnosis is amputation of the distal portion of the left index finger through the distal interphalangeal joint. The prognosis is good, further treatment is not indicated and the present situation can be regarded as final, from the point of view of litigation. The condition impacts on his occupational and daily living activities as described.”
22 I read this statement as him accepting the plaintiff’s complaints when he refers to “as described” and I refer to Defendant’s Court Book page 6 to see just what was “described” that Mr Marshall accepts:
“He made a satisfactory recovery from the injury, but has had difficulty using his left hand efficiently as a result of the loss of the terminal phalanx of the left index finger. He avoids the use of the finger in opposition and now applies his thumb to the middle finger, rather than to the amputation stump of the index finger. As a result, he has had difficulty typing and the amputation stump is painful in the cold weather, requiring him to wear a glove. Mr Martin has difficulty with small objects such as nails and screws and small change. He has learnt to use the middle finger instead of the index finger. He was involved in archery and was Australian champion, but has been unable to continue with this as a result of the loss of the last joint of the index finger.”
23 Elements of fact, degree and value judgement are involved in the assessment of this application. I am satisfied that when judged by comparison with other cases in the range of impairments, the impairment of function of the finger and hand has led to consequences that can be fairly described as “very considerable”.
24 In addition to the consequences I have already referred to, in terms of general daily life both at work and outside of work, that I find are at least very considerable, there is another single consequence that, standing alone in my view, is very considerable for this plaintiff. It is the impact on his chosen sport.
25 His recreational passion has been for competitive archery. He has competed successfully over many years at a very high level. His involvement was so extensive it put pressure on his marriage, such that he felt compelled to drop out of the sport for some years. His marriage failed in 2010. Not surprisingly, he recommenced training in order to compete again at a high level. He ultimately was hoping to get to world title competition, based on the strength of his record of winning both state and Australian championships in his freestyle division.
26 I accept his evidence about the ambition to compete at the world title level. He commenced training as part of that journey. Whether he was successful or not is, in my view, not to the point. I accept after the failure of his marriage, he would have been intensely involved in elite competitive archery again. The injury has prevented successful competition at that level.
27 This plaintiff is a demonstration of the passion to compete in sport at the highest achievable level. I find it was his major interest in life outside his work and children at the time of injury. I accept he cannot compete to his potential at the highest level he could previously. The plaintiff is entitled to cherish the capacity to compete at an elite level, having done so over the years. It is no answer to say he can still shoot a bow and arrow. For him, the loss is a serious consequence of the impairment of function of the finger and hand.
28 He described how, in a number of ways, the injury prevents him being the sportsman he was previously in his affidavit (paragraphs 41 to 51). He also elaborated on this in oral evidence (Transcript 13). The impact on his sporting prowess was further described (Transcript 23-25). I accept this evidence. He was an elite sportsman in his field at state and Australian title levels. He has lost that ability to compete to his full potential at those levels and it is a permanent loss.
29 There is medical evidence that supports what he says in relation to the impact on his archery. Mr Stapleton, in 2011, comments, at Plaintiff’s Court Book page 34:
“Insofar as his archery is concerned, he normally uses the trigger release mechanism with the left hand and now, with the left index finger amputated, he has to consider the possibility of him re-arranging his archery skills. Whether that will be successful, I frankly doubt.”
30 When he reviewed the plaintiff in 2013, he noted, at Plaintiff’s Court Book page 29:
“He was apparently a very well recognised archer. Because he was required to operate the bow in the course of his archery, he no longer can manipulate the implement and now has given that away.”
Later, on that same page, he states:
“I am confident he is genuine.”
31 I take that comment as an acceptance by the doctor of the complaints that the plaintiff makes in relation to his archery and inability to compete.
32 Mr Marshall, as I have indicated, accepted the impact on his life “as described”, and that included the passage at Defendant’s Court Book page 6:
“He was involved in archery and was Australian champion, but has been unable to continue with this as a result of the last joint of the index finger.”
33 I reject the defendant’s argument that he was not really motivated to get back into archery. He was coming out of a failed marriage in 2010 and he had, shortly after that, got back into training.
34 I find it inconsistent with a man who has returned to work in the circumstances he has, despite his injuries, has undertaken studies and put up with accompanying symptoms on a daily basis, to suggest he would not have returned to his sporting passion with all of the previous commitment that he had demonstrated. The fact that he had not yet registered with his club (Transcript 36) nor formally re-joined the club, is neither here nor there. The difference in his answers about joining the club do not, in my opinion, reflect adversely on his credit (Transcript 28 and 32).
35 Important evidence which I accept is that after his marriage had irretrievably broken down, to use his words, he started back in training and was involved in the early stages of his come back to elite competitive sport in the freestyle division, Plaintiff’s Court Book page 20. Similarly, the criticism of his evidence regarding the effect of his injury, if using the thumb grip, did not leave me to have any doubts concerning the plaintiff’s credit. Whatever the grip, a shock from the vibration when the arrow is released was too painful in any event and (at Transcript 13) the plaintiff said this:
“I can’t use the actual finger itself because it's too sensitive and a shock from the actual releasing of the arrow would send a vibration through the finger which would be very painful.”
36 A little further on at that page he said:
“I attempted to use a different style of release aid, with no effect, and it was just too painful to actually do it and I never went back.”
37 The plaintiff gave some answers that were against interest (Transcript 26, Lines 26-27). I found this consistent with him being an honest, reliable witness, whose ambition to return to high level competition at his full potential is permanently frustrated. For him, that frustration and loss is a very considerable permanent consequence of the impairment of body function that is relevant to this case.
38 For the reasons I have mentioned, I grant leave under the paragraph (a) of the definition to the plaintiff, to bring proceedings for the recovery of pain and suffering damages. In view of that leave, it is not necessary to give a decision on the paragraph (b) definition.
39 I note, however, that the plaintiff has really lost about one-third of the index finger and on any view, it is a prominent and visible part of the hand.
40 I will hear the parties as to costs.
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