McCarron v Haddon Trading Enterprises Pty Ltd
[2018] VCC 421
•4 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-03607
| JAMES McCARRON | Plaintiff |
| v | |
| HADDON TRADING ENTERPRISES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 & 28 February 2018 | |
DATE OF JUDGMENT: | 4 May 2018 | |
CASE MAY BE CITED AS: | McCarron v Haddon Trading Enterprises Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 421 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application with respect to pain and suffering damages and pecuniary loss damages – plaintiff employed as a butcher – injury to the plaintiff’s dominant right hand when placed in mincing machine – reliance upon paragraph (a) of the definition of serious injury – plaintiff returned to employment with defendant and performing different duties until employment terminated – matters of credit concerning working and payment arrangements between plaintiff and defendant – other matters of credit alleged against plaintiff – whether plaintiff has any capacity for suitable employment – whether burden of proof satisfied in relation to both heads of damages – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Coldwell | Shine Lawyers |
| For the Defendant | Mr S Smith | Wisewould Mahony |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff is seeking leave to bring proceedings for damages in respect of both pain and suffering and pecuniary loss. In so doing, the plaintiff relies upon sub-paragraph (a) of the definition of “serious injury” found in s134AB(37) of the Act – see Transcript (hereinafter referred to as “T”) 1. The injury is one to the plaintiff’s dominant right hand and occurred when, whilst working in the course of his employment as a butcher, his hand was caught in a mincing machine on 9 March 2012. This shall hereinafter be referred to as “the accident”.
2 The occurrence of the accident was not disputed, the central issue being whether the statutory test of seriousness has been satisfied, some credit matters also being relevant to that issue – see T14.
3 Mr G Coldwell of counsel appeared on behalf of the plaintiff. Mr S Smith of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct, save that, in his second affidavit, the plaintiff made a correction as to the actual date upon which he commenced working with the defendant. As shall be discussed, this is of some relevance. Oral evidence was received from Associate Professor Felix Behan, who examined the plaintiff at the request of his solicitors, and who was cross-examined. The balance of the evidence was documentary in nature and tendered either by consent or without objection.
Factual background
(a) The plaintiff’s background prior to the accident
4 The plaintiff is aged 64 years, he having been born in September 1953. He is a widower with an adult family. He was born in Scotland. He left school when 15 years of age. He then commenced a butcher’s apprenticeship, which was completed over a five year period, and was employed in Scotland as a butcher. The overwhelming majority of his working life has been spent in that occupation.
5 The plaintiff migrated to Australia in 1980, worked in a bread factory for a few months, and then in a warehouse for approximately six months. However, thereafter his employment has essentially been that of a butcher.
6 The plaintiff commenced employment with the defendant, which is a retail butchering enterprise, as a meat manager in June or July 2011. His duties were those that would be expected of a butcher, including chopping and slicing meat, using the mincer, going in and out of the refrigerated area, generally handling meat, serving customers and the like.
(b) The plaintiff as a witness
7 Essentially I regard the plaintiff as a witness of truth. As shall be discussed, it is apparent that he has had some problems with alcohol. I note that Dr Michael Bloom, occupational and environmental physician, examining the plaintiff at the request of the defendant, described him as presenting in a straightforward manner, and I would agree with this. The plaintiff was at times not overly convincing in relation to his description of his alcohol intake, but generally I accept his evidence. However, there is the following issue.
8 The plaintiff’s credit was attacked, inter alia, in relation to what would normally be a not particularly controversial topic, namely the date of his commencement of employment with the defendant. In his original affidavit of 9 March 2017, he swore that such commencement date was 1 March 2012. In a subsequent affidavit, adopted on oath as being true and correct, the plaintiff swore that he in fact commenced working as a butcher for the defendant in June or July 2011. He was initially paid the sum of $1,200 per week “cash in hand” and, after the injury, his employer “… put me on the books …” and paid him $600 gross per week with another $600 per week cash in hand. It would seem that another incorrect date of his commencing work was also put upon his Injury Claim Form. The swearing of something false in an affidavit is a very serious matter. The plaintiff’s correcting of this subsequently in his later affidavit was the right thing to do, but it does not excuse the swearing of false information in the earlier affidavit.
9 The owner of the trade name of the defendant is Mr Darren Haddon, who has also sworn an affidavit, which is contained in the Defendant’s Court Book and was placed in evidence. Interestingly, he has also sworn that the plaintiff commenced working for the defendant as a butcher on or about 1 March 2012. He did not give oral evidence. I accept what is contained in the plaintiff’s second affidavit to the effect that he started in June or July 2011, was originally paid cash in hand by Mr Haddon, and after the injury he was “put on the books” as having been an employee for only some eight days prior to the accident. Interestingly, he seems to have still received some “cash in hand” salary.
10 Apart from anything else, this is not an application based upon injury “in the course of employment”, but on an obvious and specific date, namely 9 March 2012. Accordingly, whether the plaintiff had previously been employed for eight days or nine months (or, for that matter, one day or 10 years) has no bearing upon the merits of this application, in the sense of the injury and its consequences. That does not excuse the false material contained in the affidavits, and it clearly has the potential of affecting the credit of the plaintiff and, for that matter, of Mr Haddon.
11 In the circumstances, I will take the matter no further. On the issues which are to be determined by me, despite the false material, I find the plaintiff to be a reasonably reliable witness.
(c) The state of the plaintiff’s health prior to the accident
12 It is not suggested that the plaintiff had suffered any injuries of note to his dominant right hand prior to the accident. It was said that he has had some prior injuries, such as a punctured lung and a knife wound to the abdomen which required a temporary colostomy, in addition to surgery for varicose veins. In addition, he seems to have had a history of some alcohol problems, having twice lost his licence in relation to drink-driving, the latter of these offences being approximately 20 years ago. He has not tried to get his licence back since. If alcohol is a problem for him, this might affect his employability and, accordingly, has some relevance. However, as far as injury to the right hand is concerned, it is not suggested that there had been any previous problem, or, for that matter, that alcohol played any part in the sustaining of the injury.
The injury, its treatment and diagnosis
13 As stated, the plaintiff injured his dominant right hand on 9 March 2012. This occurred when his right hand, and particularly the fingers thereof, became jammed in a mincing machine. Given that there is no contest as to the occurrence of the accident, further detail is unnecessary. The plaintiff was taken from his place of employment to the Emergency Department of Dandenong Hospital, where an x-ray demonstrated a non-displaced fracture of the mid-shaft of the middle phalanx of the right fourth digit and a fracture of the mid-shaft of the middle phalanx of the right third digit. There was also a possible fracture of the lateral aspect of the base of the distal phalanx of the fourth digit.
14 The plaintiff was seen by a plastic surgeon. Antibiotics were prescribed. The plaintiff was admitted for surgery and the following day underwent debridement and cleaning of all the lacerations. The wounds were dressed and a plaster backslab applied to the hand. He was discharged on 12 March 2012 and was to continue taking oral antibiotics. On 19 March 2012, he was reviewed. The wounds were re-dressed and he was referred to a private hand therapist. The dressings were subsequently changed again on two occasions and, when the plaintiff was last seen at the Dandenong Hospital on 16 April 2012, the wounds were apparently healing and he was able to move his fingers. He had been receiving hand therapy and this was to continue.
15 The plaintiff’s general practitioner at this time was Dr John Bialylew. A brief report from him is to the effect that, when seen on 30 May 2012, the plaintiff was still having pain in his hand. Dr Bialylew organised an x-ray on that day. This revealed a little transverse irregularity through the middle phalanges of the third and fourth digits, which may represent healed, old trauma, but a fracture line was not identified with certainty. There was also a small free ossific density over the medial aspect of the distal phalanx of the fourth digit, which may represent a sequel of previous trauma. The plaintiff was reviewed by Mr Stephen Pham, hand surgeon, upon referral from Dr Bialylew, who enclosed a report from that surgeon and to which I shall turn in a moment. In any event, Dr Bialylew continued the plaintiff on restricted work duties. His brief report indicates that the plaintiff was last seen by him on 13 March 2014, at which time he indicated that he had stopped work in September 2013. He was still having difficulty closing his right fist, particularly because of aching in cold weather. He was planning to shift to Brisbane and has not been since by Dr Bialylew. I would add that Dr Bialylew’s report is a photocopy of handwriting and also gives the impression that small parts have been chopped off down one of the margins. However, the essence of what he said is reasonably clear.
16 Having seen the plaintiff upon referral, Mr Pham reported back to Dr Bialylew on 17 August 2012. The plaintiff was expressing concern about a lack of flexibility, particularly in his middle and ring fingers. There was no obvious evidence of complex regional pain syndrome. Mr Pham was of the opinion that the plaintiff’s symptoms were due to significant arthrofibrosis and extensor tenodesis of both fingers as a result of the injury. The plaintiff was to continue to use his hand as much as possible and have ongoing therapy and Mr Pham was to review him in a further six months. Whether this occurred is not apparent, as there is no further report from Mr Pham.
17 The plaintiff moved to Queensland on a date which is not readily apparent, but would appear to have been in either late 2013 or early 2014. I accept that pain and difficulties with the hand in colder weather was a factor which played at least some part in the plaintiff’s decision to move to a warmer climate. The general practitioner whom he has been seeing there is Dr Mary Ellwood. In a report of 6 September 2014, Dr Ellwood said that the plaintiff would not be able to work as a butcher and that his incapacity was a result of the injuries which he had sustained. He had reduced grip strength in the right hand, a reduced range of movement in the distal joints of the fingers of the right hand, and pain and difficulty in lifting more than approximately 5 kilograms. As he is right-handed, he was unable to use a butcher’s knife. The plaintiff had been attempting to find work, but the pain and reduced range of movement in his right hand was making this difficult. The move to Queensland did not seem to have helped his disabilities. Dr Ellwood further commented that it may be possible for the plaintiff to be retrained for suitable duties in a supervisory role, but his age may make this an unlikely proposition. She was not of the view that any further treatment would be helpful, given that the injury occurred in excess of two years prior to her report.
18 Dr Ellwood reported again on 24 February 2016. She stated that the plaintiff’s physical condition had remained stable in the time that she had known him, but his mental condition had worsened due to the stress of legal proceedings. She had been provided with a copy of a report from Mr John Buntine, plastic and hand surgeon, to the defendant, such report being dated 14 July 2014, and expressed the view that there had been no change in the condition of the plaintiff’s hand since that report. She did not believe any further treatment would be helpful. The plaintiff had been seeing a psychologist, Ms Sorbello.
19 Dr Ellwood reported for the final time on 19 February 2018. The condition of the plaintiff’s hand had not changed. He continued to suffer from depression caused by his inability to continue his work as a butcher and because of the time that his case was taking. In the opinion of Dr Ellwood, the plaintiff’s hand injury had stabilised and he had a permanent impairment. His current treatment was to take Panadol as needed for pain. There was some prospect of improvement of his adjustment disorder once his legal proceedings were concluded, but further treatment for his hand injury was not required. However, Dr Ellwood considered that the plaintiff’s injuries could possibly deteriorate and he may experience more pain and stiffness in his fingers over time, because of arthritic changes. She considered the plaintiff unable to grip a butcher’s knife or any other narrow object. His grip strength was reduced. She considered him unable to return to his pre-injury employment as a butcher, because of his inability to safely grasp a butcher’s knife or lift over 2 kilograms for any period of time. Given his injuries and training, she did not consider that he would be able to obtain any employment. In relation to his being qualified to undertake a supervisory role in a butcher’s shop, and given his age of 64 years, Dr Ellwood considered this unlikely to be attainable. His physical restrictions and incapacity were likely to be permanent.
20 The plaintiff has also been examined for medico-legal purposes. Associate Professor Felix Behan has seen the plaintiff at the request of his solicitors and has provided three reports. In addition, he gave oral evidence in which, inter alia, he stated that he had no reason to change the contents of them. Associate Professor Behan’s earliest report is dated 17 February 2016. It includes colour photographs of the plaintiff’s right hand. He took an appropriate history. The plaintiff complained of persistent pain and Associate Professor Behan noted a severely reduced power grip. The plaintiff was taking ongoing analgesics, such as Nurofen and Panadol. He had paraesthesia on the radial side of the right middle finger and his grip strength was reduced to 10 kilograms on the right side, as opposed to 30 on the left. The plaintiff also referred to problems involving the handling of cold meats with persistent weakness after he returned to work. The plaintiff told Associate Professor Behan that he had relocated to Queensland for warmth, because of the painful cyanotic dysfunction of the right hand, to use the words of the Associate Professor.
21 Overall, Associate Professor Behan diagnosed undisplaced fractures of the mid shaft of the middle phalanx of the right ring finger and right middle finger, with a fracture of the lateral aspect of the distal phalanx of the right little finger. Associate Professor Behan also thought that deterioration was more than likely to occur from vascular spasm changes. He referred to a reduction in the plaintiff’s daily living activities and to cyanosis being a problem in cold weather. This, associated with the reduction in power grip, meant that lifting and repetitive-type exercise could not be maintained. He thought that the plaintiff had no capacity for his pre-injury employment. He referred to the plaintiff being able to work for some four hours per week.
22 Associate Professor Behan reported again on 21 November 2017. On this occasion, the plaintiff complained of difficulty in using his right hand for any grip function. He could not do such things as holding a cup comfortably with that hand. His writing, which used to be “Copperplate”, is now illegible. The plaintiff was now using his left hand for bathroom functions. He could only open jars with his left hand. Associate Professor Behan expressed the view that the plaintiff’s recovery had plateaued and was unlikely to show any further improvement. He regarded the plaintiff as having no capacity for pre-injury employment, which involved handling meat from a refrigerated environment. He concluded that the plaintiff had ongoing problems with pain and poor functional use of his right hand. Associate Professor Behan thought it may be possible for the plaintiff to get a job in some “menial way”, such as handling a traffic pole, but the plaintiff indicated that he was in pre-retirement phase.
23 Associate Professor Behan reported again on 19 December 2017. It would not appear that he examined the plaintiff again. He commented that the restricted range of function of the plaintiff’s right hand when making a fist indicated that he had lost significant grip power on the right side and, associated with vascular and cyanotic changes, this made the right hand almost non-functional. He also referred to updated x-rays which showed the almost pseudoarthrosis of the distal interphalangeal joints of the index, middle and ring fingers. Close-up and lateral views of the same confirmed this.
24 Associate Professor Behan commented as follows:
“Thus this work related accident produced this potentially arthritic degeneration of DIPJ’s of the (R) hand making this an impossible situation to function industrially or socially as illustrated in the IME (Independent Medical Examination) of 17 November.”
25 As stated, Associate Professor Behan also gave oral evidence. Prior to giving his evidence, Associate Professor Behan had been shown a supplementary report of Mr Damian Ireland, examining on behalf of the defendant, prepared on the day on which the Associate Professor was giving evidence and commenting upon his more recent reports. Associate Professor Behan could not deny the accuracy of a grip testing measurement carried out by Mr Ireland. He considered that there were a variety of factors which could explain a variation, such factors including arthritic deterioration. He also referred to variations in dynamometer readings. Associate Professor Behan was at a loss to explain the variation in the grip strength readings, but agreed that there was one. He did not agree that it indicated an inconsistent effort or lack of genuine effort in relation to the testing.
26 Associate Professor Behan also referred to the forearm musculature and the photographing thereof. He stated that there was an element of wasting. He confirmed that he had a recollection of a weakness or musculature wasting on the right – see T86. Associate Professor Behan stated that he agreed that, if the measurements taken by Mr Ireland were correct, the right arm was of greater circumference than the left and this would not be indicative of any musculature wasting. However, he also noted that the plaintiff was right handed and this would normally make the muscle concepts in the dominant arm thicker. He also referred to problems which the plaintiff had with right hand function, these indicating a certain disuse atrophy. Associate Professor Behan also referred to the plaintiff having a possible tenodesis effect of function in the index, middle and ring fingers of the right hand.
27 Associate Professor Behan emphasised that he had performed his assessment on the basis of the x-rays which he had ordered and the result was that which he had stated in his supplementary report (of 19 December 2017). He also expressed the opinion that, if someone has an injury, that particular trauma may have precipitated the early onset of arthritic change and the lack of movement and fusion of joints by kinesthesis would exaggerate the arthritic development. This was his opinion based upon clinical experience. He agreed that arthritic changes can be contributed to by genetic background, but if there had been no injury, the arthritic changes may never have been precipitated. The injury may have brought on the arthritic changes prematurely and with clinical symptomatology – see T94.
28 Associate Professor Behan commented that there was a difference between handling a cash register in a butcher’s shop and performing the sort of duties, suggested by one of the employment agencies, at Bunnings, particularly bearing in mind the plaintiff’s occupational background. With restrictions, Associate Professor Behan thought that the plaintiff could undertake such a job for 38 hours a week (providing it is not menially taxing – see T99). He also thought that the plaintiff could undertake a forklift driving job, providing he had a licence, something which Associate Professor Behan would not give were it his decision – see T100. In his view, the plaintiff would have difficulty obtaining a licence.
29 In re-examination, when further particulars concerning the forklift driving were put to him, Associate Professor Behan described the work as unsuitable, because the plaintiff did not have good bilateral function. Associate Professor Behan thought that the plaintiff could handle a computer keyboard depending upon “his present state of dexterity and experience” – see T103. He also commented that thenar wasting, as on the plaintiff’s right hand, was a clinical sign of carpal tunnel dysfunction. On a clinical basis, he suspected that there was a carpel tunnel potential.
30 In re-examination, Associate Professor Behan stated that, as demonstrated in the photographs, the plaintiff could not close his hand to make a full fist. There was indication of arthritic changes potentially.
31 I should state that I inspected the plaintiff’s forearms at close range. In my opinion, the right forearm was noticeably thinner and had less bulk to it than the left. This was not a proposition with which Mr Smith agreed. As I pointed out, he and I had been standing in different positions, but I consider that I was viewing the plaintiff’s forearms at close range and I am satisfied that I was able to make a reasonably accurate estimate.
32 Dr Amanda Sillcock, occupational physician, examined the plaintiff at the request of his solicitors on 18 February 2016. She noted that the plaintiff stated that he was sacked in September 2013 as he could not undertake his full duties. He had been working pre-injury hours, but could not cut or bone beef. He still had pain in his middle and ring fingers and over the knuckles, mainly when it was cold. His hand would turn blue in cold weather. The pain from which he suffered radiated up the back of his hand to his wrist. He had occasional paraesthesia in the middle and ring fingers and was unable to make a full fist. He complained of sleep interference because of the pain, waking at 1.00 or 2.00am and being unable to get back to sleep. He had seen a psychologist. The plaintiff stated that he had trouble with various domestic tasks, including aspects of cooking, in addition to problems in relation to home maintenance. He could no longer do calligraphy.
33 He told Dr Sillcock that he had two beers most days. He also stated that he had good literacy, but was unable to use a computer. Dr Sillcock stated that his forearms were equal in circumference. She noted reduced movement and the fact that the plaintiff was unable to make a full fist. Further, his right hand was weaker than the left and he had abnormal sensation over the middle finger. That finger is malaligned. She considered it likely that his injury was likely to deteriorate with the development of arthritis. Dr Sillcock believed that the plaintiff was incapacitated for employment as a butcher and did not have a realistic capacity for suitable employment. She was of the view that the condition of his dominant hand prevented him from using it for any physical activity and that this was a serious disability. Theoretically, he could do supervisory work, but she considered it unlikely that this would be available without being combined with “hands-on” work. The fact that the plaintiff was, as at that time, aged 62 years and had been out of the workforce for nearly three years severely limited his ability to find other employment. The end result was that she did not believe that the plaintiff had a realistic capacity for suitable employment. He was certainly incapacitated for his pre-injury employment. His restrictions and incapacities were permanent.
34 Dr Sillcock reported again, having seen the plaintiff on 23 November 2017. She was of the view that there had been no significant change in his condition since he had last been seen. He remained out of the workforce. He continued to have reduced movements in his hand, ongoing numbness, paraesthesia and pain. He was not sleeping well. He was still using his left hand for many things which he could not do with his right hand. Essentially, his hand was unchanged on physical examination, save that there was no longer swelling of the thenar eminence. Dr Sillcock concluded that the plaintiff remained incapacitated for his pre-injury employment and that there was not a capacity for suitable employment, because of his injury, his age, his time out of the workforce and the fact that he has only ever worked as a butcher. She considered the situation to be a permanent one.
35 The defendant has also had the plaintiff examined. Mr John Buntine, plastic and hand surgeon, saw the plaintiff at the request of the defendant on 9 July 2014. Amongst other things, he noted that the plaintiff, who is now living in Queensland, was consuming some four or five pots of beer per day and sometimes more at the weekend. The plaintiff described to Mr Buntine his post-accident work with the defendant, referring to be able to return to the shop in a managerial capacity but never resuming full duties, ultimately being sacked in September 2013. A considerable part of Mr Buntine’s report involved an Impairment Assessment pursuant to the AMA Guides. He considered that the condition of the right hand had stabilised. He referred to the condition of the plaintiff’s right hand as being consistent with his obtaining managerial-type work in a butcher shop and also probably his resuming some light retail butchering, even if it were necessary for him to buy or have knives made with modified handles.
36 Mr Damian Ireland, who specialises in surgery of the hand, examined the plaintiff at the request of the defendant on 7 June 2017. Upon examination, Mr Ireland found a Dupuytren’s deposit on the ring finger, but no obvious deposits in the middle finger. The palms of both hands were soft and devoid of work stains or calluses. Positive signs of Carpal Tunnel Syndrome from tenosynovitis, basal thumbs and arthritis and the like were all negative. Mr Ireland found that the maximum forearm circumference on the right was 25.3 centimetres, compared with 24.7 on the left. Grip strength on the right was successfully measured at 29, 30 and 28 kilograms, compared with 36, 36 and 34 kilograms on the left. He diagnosed right hand dysfunction following multiple soft tissue injuries to the palmar and dorsal aspects of all four fingers, undisplaced fractures of the middle and ring fingers, combined with mild unrelated Dupuytren’s deposits on the ring finger. He found no evidence of any functional component. He thought that the plaintiff was fit to return to appropriate work but, having been absent from the workforce as a retail butcher for four years and being 63 years of age, it would be difficult for him to return to that work. He noted that the plaintiff has no experience with other forms of employment. He considered the plaintiff to be able to return to work as a retail butcher, provided he could work at his own pace, was not required to lift weights in excess of 10 kilograms and was not required to use excessive grip with his right dominant hand, as would be the case in boning for periods longer than five minutes at a time. Within those restrictions, he thought that the plaintiff could return to appropriate work on a full-time basis.
37 Mr Ireland reported again on 28 February 2018, that is, the date upon which the matter was listed for hearing. It is apparent that he had not examined the plaintiff again and his supplementary report was directed towards a commentary on the report of Associate Professor Behan of 21 November 2017. Mr Ireland could offer no explanation as to why there was a discrepancy between the grip strength measurements obtained by Associate Professor Behan and those he had recorded approximately six months earlier. He had recorded no appreciable difference between the right and left grip strengths. He commented that grip strength can be a very subjective measurement, based on the efforts or otherwise exerted by the person being examined. He listed measures that can be taken to determine that the full effort is being exerted. He could offer no physical explanation as to why the plaintiff’s grip strength on the right should be compromised as a result of the injury. He considered the narrowing of joint spaces on all fingers to be due to hereditary developmental osteoarthritis and not traumatic arthritis. He considered the underlying unrelated osteoarthritis to be responsible for restricted movements of the index and middle fingers. He also noted that the plaintiff had told him that he remained right hand dominant and was able to attend to all the normal activities of daily living, including personal hygiene, with his right dominant hand. He considered this to be in contradistinction to the history obtained by Associate Professor Behan.
38 Dr Michael Bloom, occupational environmental physician, examined the plaintiff at the request of the defendant on 20 November 2017. The plaintiff informed Dr Bloom that he had no specific qualifications beyond those of a retail butcher. He had never driven a forklift. He does not own or possess a computer of any sort and is completely computer illiterate. The plaintiff told Dr Bloom that there had been some slight improvement in the condition of his right hand, but he had been unable to sustain heavy gripping. Accordingly, boning and cutting of meat had not been possible. Effectively he avoided all use of his right hand.
39 After his return to work and removal of the splints, his duties included “traying up” cuts of meats and serving customers, in addition to ordering supplies. He worked full-time. He claimed to have been dismissed after taking one week of organised leave and being unable to work on the first day back, because of a chest infection. He had not undertaken any form of employment or searched for jobs.
40 He had undertaken regular psychological counselling with a relatively good outcome. He had not had further treatment of his right hand, did not perform strengthening exercises and avoided any lifting or gripping. He complained of not being able to take any weight on his right hand and that there was some sensitivity. He also complained of a slight reduction in the range of motion of the fingers and a weakening of the grip. A couple of times per week he was taking Panadol or Nurofen. He did not undertake any gripping, lifting or carrying with his right hand. He was drinking between 6 and 12 beers per day. It would appear that he had had a beer prior to his morning appointment with Dr Bloom. However, he presented in a straightforward manner.
41 Dr Bloom thought that there was some evidence consistent with minor vascular impairment of the third and fourth fingers. He expressed the belief that there was a genuine persisting dysfunction of the plaintiff’s right hand that would make it extremely difficult, or impossible, for him to sustain work as a butcher, given the demands for exposure to the cold, along with repetitive and sustained heavy gripping. He thought that the plaintiff would have a considerable work capacity if he possessed adequate levels of motivation and better transferable skills. Dr Bloom was of the view that the plaintiff would not be able to return to his pre-injury duties without considerable modifications. He again referred to the loss of job opportunity and lack of transferable skills. He pointed out that the plaintiff had only worked in the retail butcher’s trade for the majority of his life and any other work activities had been low-skilled labouring jobs. Accordingly, it was evident that he lacked transferable skills.
42 Dr Bloom thought that the plaintiff should avoid working in cold environments and avoid repetitive or sustained heavy gripping with the right hand. However, within those constraints, there was no physical reason why the plaintiff could not undertake suitable light duties on a full-time basis. Because of his lengthy absence from the workforce, a reintroduction to it might have to be on a part-time basis, with incremental increases in hours. However, the plaintiff would only have the capacity to return to a low-skilled position with relatively light physical demands. The drawback to light courier work was that the plaintiff does not possess a driving licence. The same could be said of work as a forklift driver. Work as a train or tram driver, given his age and the fact that he would require considerable retraining, seemed unlikely to occur. He thought that the plaintiff had the physical capacity to work as a traffic controller, particularly as he could use his non-dominant hand, and the same could be said of working as a school crossing supervisor. Light process or assembly work might or might not be suitable, depending upon the individual job. Dr Bloom also thought that there was a suboptimal level of motivation, which suggested that the prognosis would remain poor.
43 Dr Bloom provided a supplementary report of 20 December 2017, after being provided with a document from Recovre, an organisation which frequently reports in cases such as this concerning possible suitable employment. Dr Bloom noted that the Recovre report identified three work roles considered to be suitable. These were retail assistant, forklift driver and traffic controller. These roles had been considered following an actual worksite assessment. It is quite apparent from the Recovre report that the retail assistant position which had been assessed was in a Bunnings store and it was so described during the conduct of the case.
44 Dr Bloom was of the view that this was primarily a sedentary job that did not require heavy or sustained gripping of either hand. He thought that the plaintiff had the safe physical capacity to undertake and sustain such work. He also thought that the plaintiff had the safe physical capacity to undertake the work of a forklift driver. However, it is to be remembered that, in his earlier report of 20 November 2017, he stated that the plaintiff does not possess a forklift licence and, at age 64, is unlikely to gain one. He noted the physical aspects of the work involved in the traffic controller role, included the dragging and placing in position of bollards, signs, stabilisers and the like. He thought that the plaintiff did have the capacity to undertake this sort of work, but thought that the lack of a driving licence may prove to be a barrier. Dr Bloom again referred to the lack of job opportunities and suboptimal levels of motivation.
45 At the request of his solicitors, the plaintiff was examined by Professor Lorraine Dennerstein, consultant psychiatrist. As has been stated, the plaintiff has received some treatment from a psychologist. While no mental or behavioural disturbance or disorder is relied upon in the present case, the existence of psychological or psychiatric consequences of injury has the potential to be relevant. However, Professor Dennerstein has commented that the plaintiff is not restricted socially by his psychological injuries and has no incapacity for suitable employment as a result of such conditions. As that is the only evidence from a consultant psychiatrist before me, such factors or consequences scarcely require any further discussion.
46 The diagnosis in this case is relatively non-controversial and I accept that advanced by Associate Professor Behan. The plaintiff suffered a minoer injury to the right hand, with undisplaced fractures of the mid shaft of the middle phalanx of the ring finger and the middle finger, along with a fracture of the lateral aspect of the distal phalanx of the little finger. There have been some associated vascular and cyanotic changes, pseudoarthrosis and potentially arthritic degeneration of the distal interphalangeal joints.
47 It is not suggested that the plaintiff had any pre-existing problems with his dominant hand, although Mr Ireland has referred to the presence of mild, unrelated Dupuytren’s deposits. In any event, I accept that, prior to the injury, the plaintiff suffered from no significant symptoms in his right hand and was able to make full use of it whilst working long hours. It was not argued that there was any pre-existing condition of great moment. Accordingly, I find that any pain, suffering, interference with capacity for work and the like result directly from the accident.
48 There also seems to be no argument but that the consequences of the injury are permanent within the meaning of the Act in that they will persist for the foreseeable future Mr Buntine, examining on behalf of the defendant, was prepared to make an assessment pursuant to the AMA Guides, also stating that it should be accepted that the condition of the plaintiff’s right hand had stabilised. He also made references to permanent impairments. Associate Professor Behan stated that the plaintiff was unlikely to show any improvement. Dr Sillcock expressed the opinion that the plaintiff’s condition was unlikely to change significantly in the foreseeable future. She considered the plaintiff’s restrictions and incapacity to be permanent. I accept these opinions.
49 The plaintiff has had some treatment from a psychologist. Pursuant to s134AB(38)(h), the psychological and psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition. In the present case, they shall not be. However, I refer to the opinion of Professor Dennerstein and my comments in that regard. It was not argued that psychological or psychiatric consequences play any significant role in the present case.
Other developments since the injury
50 As stated, the plaintiff was absent from his place of employment for a few weeks following the accident. He then returned to work with the defendant in what he has described as a non-physical capacity. At no stage did he return to normal butchering duties and he remained employed in that capacity until 7 September 2013, on which date his employment was terminated.
51 There is conflicting evidence as to the circumstances of the termination of the plaintiff’s employment. He claims, in essence, that he took a week of leave to which he was entitled and was absent on the day that he was due to return to work because of a chest infection. His services were terminated on that day. The plaintiff gave evidence that he provided certificates in relation to the performance of restricted duties for the duration of his post-injury employment. I would add that the plaintiff gave evidence that, in the 30 or so years in which he has performed work as a butcher in Australia, he has never seen a shop or supermarket where a butcher was doing the restricted duties to which he was confined pursuant to his working arrangement with Mr Haddon – see T73.
52 The plaintiff disagreed with the proposition advanced in the affidavit of Mr Haddon of 24 January 2018 to the effect that his employment had been terminated because he was late for work on countless occasions and on others arrived at work clearly under the influence of alcohol. There is also a reference to Mr Haddon coming to work and finding the plaintiff sleeping underneath a bench. It was also asserted by Mr Haddon that the plaintiff went on a holiday to Queensland in August/September 2013 and failed to return to work when he was so scheduled. Mr Haddon swore that, accordingly, he had no choice but to terminate the plaintiff’s employment and that this had nothing to do with any physical inability to perform his duties. These matters are denied by the plaintiff, save that he admits that on one occasion he did sleep on the premises underneath the workbench. He did not agree with the proposition that this was because he was so intoxicated that he could not get himself home. The plaintiff also asserted in evidence that he had in fact called Mr Haddon from Queensland, informing him of the chest infection and advising that he was actually in hospital, but was about to be discharged – see T35.
53 The plaintiff has asserted in his more recent affidavit of 27 February 2018 that the work which he performed after the accident was a “made-up position for my WorkCover claim”. He expressed the belief that Mr Haddon had been wanting to get rid of him for some time because of his inability to return to his pre-injury duties. It also seems apparent that, when he was engaging in this work, he was working approximately 66 to 68 hours per week.
54 The plaintiff disagreed with the proposition advanced by Mr Haddon that, whilst performing modified duties, he was doing work such as cutting meat, making sausages, making hamburgers and the like. He agreed that he was serving customers. The thrust of his evidence seemed to be that he was not doing the work of a real butcher, but simply serving customers, which duties could have been performed by any sales assistant not possessing butchering skills and experience. Accordingly, Mr Haddon was looking for a reason to sack the plaintiff and his absence with the chest infection supplied that reason.
55 Where the truth lies in relation to the circumstances and reasons surrounding the termination of the plaintiff’s employment is not easy to ascertain. Understandably, the plaintiff was attacked in cross-examination about the importance and significance of affidavits and concerning his initial swearing of a false commencement of employment date of 1 March 2012. I accept that this was false. However, it is exactly the same date sworn to by Mr Haddon. If the plaintiff has sworn a false affidavit, then so has Mr Haddon. I strongly suspect that the “cash in hand” system of payment looms large in what has occurred.
56 The plaintiff has not worked since he has moved to Queensland. It is not suggested that he has sought employment there, other than looking in newspapers and having some involvement with Centrelink for a few months. He has not sought work since early 2014 – see T41. The plaintiff also agreed that, if his employment had not been terminated, he would still have been doing the same job performing limited duties. The issue of whether that work represented a type of very unusual arrangement between himself and Mr Haddon or whether it represents a true reflection of the plaintiff’s working capacity as a butcher or generally is an issue of some significance.
Ruling
(i) Pecuniary loss damages
57 On balance, I am of the view that the plaintiff succeeds in relation to the issue of leave to pursue pecuniary loss damages. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(a) The issues of earning capacity, suitable employment and the like have been the subject of many superior court decisions, one of the more recent being that of Richter v Driscoll [2016] VSCA 142. As was said in that case, in relation to the issue of capacity for work, the focus is upon an injured worker’s inability to engage in employment. This could be described as a return to work as a settled or established member of the wage earning workforce, as referred to in Richter and in Philmac Pty Ltd v Asti (1980) 26 SASR 213. Consideration is to be given to whether the individual worker has an inability to work in his or her pre-injury employment. As stated in Richter, the question to be considered goes beyond a simple comparison with pre-injury employment. Factors such as age, education and experience, in addition to the degree of incapacity and nature of pre-injury employment, enter into calculations. Issues of skill and location of employment opportunities also require consideration. In this regard, in Richter reference was made to the decision in Barwon Spinners Pty Ltdv Podolak [2005] VSCA 33. The vagaries of the labour market are also to be considered. Later in the same judgment it is said that:
“It is plain that suitability of work was never confined to physical capacity to perform a task required by a particular job.”
In particular, I would refer to the following:
“…the construction which we place on the definitions under consideration can be expressed in either of two ways. One is to say that whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances — these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce. …
The other, closely allied, way in which the matter may be put is … to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’.”
As was then said:
“‘Employment’ is a relationship in which a prospective employee must have something — a capacity to work in employment — to sell. A prospective employer will not buy if the entirety of the circumstances personal to the worker … lead the employer to conclude that the worker has nothing to sell.”
The Court of Appeal went on to comment that all aspects of a plaintiff’s relevant personal circumstances must be comprehensively brought to account, such circumstances including age, previous experience, education, skills, place of residence and the like. Emphasis was placed upon the entirety of a worker’s relevant personal circumstances.
(b)I accept that the working arrangement and relationship between the plaintiff and Mr Haddon was a peculiar and particularly individual one. I accept the evidence of the plaintiff as a very experienced butcher that he knows of no situation in a shop or supermarket where a person is employed as a butcher, but does not perform the usual tasks associated with that trade. It may be that, as suggested by the plaintiff, Mr Haddon had some fears of problems with the WorkCover system if he dismissed the plaintiff, but that is speculation. It may be that the method of payment which had been adopted in respect of the plaintiff played some part. In any event, I accept that the role in which the plaintiff continued his post-injury employment with the defendant was an individual and, in essence, sheltered one. I reject any argument that the fact that the plaintiff continued employment in this particular role with the defendant until its termination demonstrates that he has a capacity to gain employment as a butcher. I accept the simple statement of Dr Sillcock, occupational physician, that the plaintiff “is certainly incapacitated for his pre-injury employment”, having earlier stated in her report of 28 July 2016 that he was incapacitated for his pre-injury employment “as a butcher”. Further, I note that Dr Bloom, also an occupational physician and examining the plaintiff on behalf of the defendant, observed that:
“… there is genuine persisting dysfunction of this man’s right hand that would likely make it extremely difficult or even impossible for him to sustain work as a Butcher …”.
As earlier stated, I accept the plaintiff’s evidence that, based upon his decades of experience, he knows of no situation where a person with restrictions such as those that he has would be taken on to work as a butcher. In summary, his post-injury employment with the defendant was an artificial arrangement. Once the plaintiff was removed from that, his capacity to find employment as a butcher was at an end.
(c)The plaintiff is aged 64 years. He is a man of very limited education. Effectively he has worked all his life as a butcher. He is completely computer illiterate. In essence he has no other training or skills. Because of pain and symptoms in his hand, he has moved from his normal area of residence (it would seem that he was living in Pakenham) to Queensland so as to take advantage of the warmer weather there and the beneficial effect upon his symptoms. I note that his treating general practitioner in Queensland, Dr Ellwood, in her most recent report of 19 February 2018 has stated that, given the plaintiff’s age, injuries and training, she does not consider that he will be able to obtain any employment. This coincides with the view formed by Dr Sillcock, occupational physician, as follows:
“I do not believe that he has a capacity for suitable employment because of his injury and also because of his age (64), time out of the workforce (five years) and the fact that he has only ever worked as a butcher”.
(d)Bearing all of the above in mind, it seems to me that the plaintiff’s situation in relation to employability coincides with each of the approaches adopted in Richter and set out in paragraph (a) above. I am satisfied that the plaintiff has no current work capacity, having regard to the entirety of his personal circumstances. I am far from convinced that his injury-caused incapacity would permit him to work in employment as a settled member of the workforce. Further, I am of the view that his incapacity is such as to destroy or impair his powers of labour as a merchantable article. In short, I am satisfied that, bearing in mind all the factors that have been mentioned and which relate to his individual situation, the plaintiff is totally incapacitated for employment.
(e)I am also satisfied that the plaintiff’s loss of earning capacity consequence is serious for the purposes of S. 134 AB (38) (c) of the Act. The plaintiff, at a time of life when he most might need it, has already lost income for four and a half years and that inability to earn will continue. The plaintiff has sworn that he greatly enjoyed his work and there is good reason to believe that, but for the accident, he would have continued that for many years.
(ii) Pain and suffering damages
58 The plaintiff having discharged the burden of proof in relation to pecuniary loss damages, the requirements of the Act have also been satisfied in relation to pain and suffering damages — see the decision of the Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170, and various decisions of this Court.
59 I would add that, even if this were not so, the plaintiff would seem to me to have established that his pain and suffering consequences are more than significant or marked and are at least very considerable. The injury is to his dominant right hand. It prevents him from the enjoyment and satisfaction of participating in what is virtually the only work that he has ever known. He has sworn, and I accept, that he has lost the ability to participate in an occupation which was an activity that he greatly enjoyed and gave him a sense of purpose in life. He has left his place of residence so as to go to a warmer climate where his symptoms may be lessened. The injury to his dominant hand affects him in many everyday activities. In short, the burden of proof has also been satisfied in this regard.
Conclusion
60 The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings in relation to both pecuniary loss damages and pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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