Melkamu v Megeso Pty Ltd
[2021] VCC 671
•31 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00151
| TAFERE MERSHA MELKAMU | Plaintiff |
| v | |
| MEGESO PTY LTD (ACN 116 198 746) | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 May 2021 | |
DATE OF JUDGMENT: | 31 May 2021 | |
CASE MAY BE CITED AS: | Melkamu v Megeso Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 671 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Accident compensation – serious injury – economic loss claim withdrawn
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:TTB SMS Pty Ltd v Reading [2020] VSC 203
Judgment: Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick with Mr M Belmar | Kofie Osei & Associates |
| For the Defendant | Mr R Stanley | Minter Ellison |
HIS HONOUR:
Introduction and background
1The plaintiff, Mr Tafere Melkamu, was born in Ethiopia in 1965. He had limited schooling in Ethiopia before working on the family farm. He was then enlisted in the army in Ethiopia before fleeing to Sudan, where he was subsequently jailed. With the assistance of the United Nations, he came to Australia in 2010 as a refugee.
2Upon arrival in Australia, the plaintiff could not speak or read English. He completed a basic English language course but even now his English is not good.
3In Australia, he has performed manual work as a fruit picker, meat worker and process worker.
4In July 2017, he commenced employment for the defendant, Megeso Pty Ltd, as a labourer, in a hide, skin and leather export business. His duties included trimming and packing cowhides. He was doing that work on 10 April 2018 when a co-worker, standing opposite him, managed to cut the plaintiff’s right index finger with a knife (“the incident”).[1]
[1]First affidavit of the plaintiff - Plaintiff’s Court Book (“PCB”) pages 20-22 inclusive
5Following the incident, the plaintiff was taken to the Sunshine Hospital and underwent surgery with a plastic surgeon for the laceration to the right index finger.
6The plaintiff’s treating general practitioner is Dr Hiluf Gebrehiwot. Dr Gebrehiwot can apparently speak the plaintiff’s first language. In a report dated 10 August 2020,[2] Dr Gebrehiwot sets out the injury and treatment. The injury is described as a laceration of the right dominant index finger that resulted in injury to the extensor tendon of the right index finger.
[2]PCB 37
7The active treatment has effectively been regular review with Dr Gebrehiwot. There was a period of hand therapy at the Sunshine Hospital. It is clear from the material tendered, that the plaintiff did not fully engage with the hand therapist. That treatment ended in approximately November 2018.
8The plaintiff has effectively been unemployed since the incident, save for a short attempt at modified duties.
The nature of this application
9This is a serious injury application brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013. Mr Fitzpatrick and Mr Belmar of counsel appeared on behalf of the plaintiff. Mr Stanley of counsel appeared on behalf of the defendant. Consistent with the usual practice in serious injury applications, the plaintiff was the only witness required for cross-examination. The parties otherwise tendered affidavits, medical reports and related material. I have taken all the evidence, including the transcript of the plaintiff’s oral evidence, into account but I shall only refer to it in these reasons to the extent necessary.
10The plaintiff relied upon the physical injury to the right index finger/hand as the “serious injury”. The application was brought seeking leave to commence a common law proceeding for both pain and suffering and loss of earning capacity damages. However, at the end of the cross-examination of the plaintiff, he withdrew that part of the application seeking leave to commence a proceeding for loss of earning capacity.[3] That was a sensible and commendable decision as his evidence to that point, consistent with much of the medical evidence, confirmed that he had a residual work capacity and would not satisfy the statutory formula.
[3] Transcript (“T”) 53, Lines (“L”) 30-31
11Accordingly, the only remaining issue for determination in this application is whether the plaintiff has suffered “a very considerable” pain and suffering consequence.
Analysis
12In addition to the tendered material referred to, the defendant also played video surveillance obtained of the plaintiff and tendered that surveillance. The video surveillance was obtained in October 2020 and March 2021. As has been mentioned many times, in applications of this type, the credit of the plaintiff will often be critically important in respect to an assessment of the “seriousness” of an injury to a particular applicant. The video surveillance, together with the plaintiff’s presentation to medical examiners, does bring into issue his credit.
13The video surveillance demonstrated that the plaintiff could go about a range of ordinary day-to-day activity without any apparent restriction for the use of his right hand. In particular, he was able to use public transport, to hold items with his right hand, to bend the fingers on the right hand to grasp items, such as the door mat that he was seen to vigorously flap and bang against a wall, as well as smoking a cigarette and using a mobile phone. The more recent video surveillance, obtained in March 2021, also showed that before the sun was above the yardarm, the plaintiff was able to enjoy himself at a gaming venue with a cold beer in his left hand while using his right hand to tap away at a poker machine.
14During the oral evidence, I observed the plaintiff’s right hand. He demonstrated a deformity of the right index finger and appeared unable to fully straighten it. When asked to demonstrate whether he could make a fist, the right index finger largely remained protruding. In his evidence, he described significant restrictions for use of the right index finger as part of activity involving the use of the right dominant hand for gripping, pinching or lifting. However, the video surveillance casts real doubt on the reliability of his evidence.
15Pausing here, for what is a straightforward injury – that is, a frank laceration to the right index finger – a relatively large amount of medical material was relied on by the parties. Much of that was directed towards work capacity. I do not propose to deal with the medical material in detail. It largely speaks for itself and of course the evidence dealing with work capacity is now largely obsolete, save for how it relates to a pain and suffering consequence. Many of the medico-legal examiners found the plaintiff to be an unreliable historian and expressed reservation regarding the claimed inability to use his right hand. It is also clear that the plaintiff describes symptoms beyond the right index finger, that are hard to understand given the nature of the finger injury. He described a shooting pain up the arm and in the witness box held his right arm close to his body with little or no use of the arm and little or no movement of the right shoulder.
16The defendant tendered a report obtained by the plaintiff’s solicitors from Mr Damian Ireland, a specialist hand surgeon. In a report dated 10 June 2020,[4] Mr Ireland obtained a history of pain in the right index finger radiating proximally in the right arm as far as the neck. The plaintiff described to him numbness of the right index finger and pain in the elbow. On examination, the plaintiff demonstrated what Mr Ireland – in my view, appropriately – describes as “considerable histrionics”. The plaintiff apparently used his teeth rather than his right hand to undo his left sleeve. In any event, Mr Ireland diagnosed dysfunction of the right index finger with restricted motion in all three joints following soft tissue injury treated surgically.[5] However, as Mr Ireland commented, he found it difficult to assess the true level and degree of the subjective symptoms of which the plaintiff complained. He said there was a discrepancy between the severity of the subject symptoms and the presence of corresponding objective physical findings.[6] Mr Ireland ultimately concluded that the plaintiff would not be able to return to his pre-injury employment. He otherwise noted the plaintiff was able to attend to all normal activities of daily living.
[4]Defendant’s Court Book (“DCB”) 149
[5]DCB 142
[6]DCB 153
17In my opinion, Mr Ireland’s report is a fair summary of the situation, bearing in mind what I observed in the video surveillance. His report in many ways is not dissimilar to a number of the other reports relied on by the parties, including the reports of Dr Anthony Menz,[7] Dr Graeme Doig,[8] Dr Joseph Slesenger[9] and Dr John Buntine.[10]
[7]DCB 39
[8]DCB 47
[9]DCB 64
[10]DCB 97; DCB 123 and DCB 126
18The medical material before the Court also included a Certificate of Opinion of a Medical Panel dated 9 March 2021, together with the Reasons for Opinion.[11] The Medical Panel Opinion is the most recent medical material before the Court. The Panel Opinion was provided following an examination of the plaintiff on 4 February 2021.
[11]DCB 129
19The Panel opined that the plaintiff is still suffering from mild persisting dysfunction of the right index finger and surgical scarring relevant to the claimed physical injury. That opinion is similar to the one expressed by Mr Ireland. The Medical Panel also expressed the opinion that the plaintiff has a work capacity. In the Reasons, the Panel – like many examiners – noted considerable inconsistency between the movement and use of the right index finger, hand and right upper limb demonstrated by the plaintiff on formal assessment and observations made on distraction.[12]
[12]DCB 135
20The medical material relied on by the plaintiff includes reports from his treating general practitioner, Dr Gebrehiwot. The most recent of those reports is a report dated 10 August 2020.[13] It is clear that Dr Gebrehiwot is supportive of his patient. His reports set out the history of treatment and describe a permanent injury to the dominant right index finger. In the most recent report of 10 August 2020, he describes current treatment as “painkillers as needed”.[14] He does not recommend any other treatment. He does note an ongoing incapacity for work, consistent with medical certificates provided by him, but of course that is no longer relied on by the plaintiff. It is also relevant, in my view, that the treating general practitioner appears to be providing ongoing medical certificates that simply repeat comments made by him in earlier certificates without necessarily bearing any reflection of the current situation. By that I mean he continues to note ongoing hand therapy/physiotherapy, but of course the plaintiff has not had any hand therapy or physiotherapy since November 2018. In determining what weight to give to the opinions of the treating general practitioner, I do take into account the error in the medical certificates and the fact that the plaintiff is in fact not having any ongoing treatment. However, at the end of the day not much turns on that, as the treating general practitioner’s reports provide limited information in respect to the ongoing impairment or impairment consequences for the purposes of this pain and suffering serious injury application.
[13]PCB 37
[14]PCB 38
21The plaintiff also relies on reports from Dr Kilner Brasier. In particular a report dated 4 September 2020[15] was provided by Dr Brasier after a review attendance with the plaintiff on 4 September 2020. Dr Brasier notes the nature of the injury and opines that the plaintiff had a residual work capacity for work as a light packer or for light assembly work. Dr Brasier did not suggest any other treatment and does not record any particular restriction for day-to-day activity other than –
“His activities of daily living such as writing, eating, shopping, washing or cooking are limited because of the limited function of his right hand.”[16]
[15]PCB 50
[16]PCB 51
22Of course, those claimed restrictions need to be seen in the context of the video surveillance.
23The “high water mark” of the plaintiff’s case is the opinion of Dr Richard Sullivan. Dr Sullivan describes his speciality as “interventional pain specialist and specialist anaesthetist”. He examined the plaintiff on 14 October 2020 and produced a report of the same date.[17] In that report he took a history that the plaintiff had stiffness affecting the right upper limb from the shoulder down to the hand, as well as numbness, altered sensation and a feeling of heaviness that extended from the right shoulder, through the hand and into the fingers.[18] He noted the plaintiff then took Panadol intermittently for pain and that the impact of the injury was such that “he is essentially precluded from performing any domestic chores or tasks except for some light cooking”.[19] Dr Sullivan further noted that the plaintiff had modified how we went about various activities. He ultimately confirmed the laceration to the right index finger and thought it was likely that not only the extensor tendon was injured but also the digital nerve. Dr Sullivan opines that the plaintiff had subsequently developed neuropathic pain affecting his finger, and the combination of these events “results in substantial functional limitations in terms of ongoing use of the right upper limb”.[20]
[17]PCB 250
[18]PCB 250
[19]PCB 251
[20]PCB 253
24Dr Sullivan’s conclusion that the plaintiff has a neuropathic condition essentially affecting the right hand and arm is against the balance of medical opinion. I do not accept it. I prefer the opinion of the specialist hand surgeons, including Mr Ireland, but also Dr Buntine. Dr Buntine in particular, had the benefit of the video surveillance and, having seen the video surveillance, commented that he considered the plaintiff’s complaints “were grossly exaggerated”[21] and that the plaintiff “would be physically capable of undertaking a wide range of moderately light manual work involving some use of his right hand, which would be consistent with the forwarded surveillance material”.[22] Dr Buntine does not describe any neuropathic-type condition. Mr Ireland does not describe any neuropathic-type condition. The unreliability of the plaintiff’s evidence means that such subjective complaints of a neuropathic-type pain cannot be accepted.
[21]DCB 127
[22]DCB 128
25Apart from Dr Sullivan’s opinion, there is no medical explanation for the plaintiff’s claimed widespread symptoms affecting the right arm for what otherwise appears to be a relatively straightforward tendon injury to the right index finger. Curiously, Dr Sullivan (so I was told) was apparently provided with the video surveillance but chose not to comment upon it in his report.
26Returning to the video surveillance, the activities that the plaintiff is shown to be capable of performing with the right hand in the video are consistent with the opinions and conclusions as expressed by Mr Ireland and Dr Buntine, whose opinions I accept.
27The plaintiff may have some difficulty with the full use of the right hand. He may have some difficulty gripping or holding things. But he is clearly able to engage in a range of day-to-day activities. He does not require any ongoing treatment. I do not accept his description of shooting pain through the arm and up into the shoulder. Indeed, it is hard to tell whether he has any pain at all in the right index finger due to the unreliability of his evidence. His hobbies and interests before the injury appear to have revolved mainly around domestic activity and there is no explanation as to why he cannot or does not now engage in domestic activity, particularly in light of the activities he is shown to be capable of undertaking as per the video surveillance. The plaintiff may have some stiffness in the right index finger and he may have some difficulty with the full use of the hand, particularly for full and unrestricted manual work. However, I am far from satisfied that he is a reliable witness, and I am far from satisfied that he has ongoing pain and suffering impairment consequences which can be described as “very considerable”.
28Finally, the parties did not refer to any legal authority during the hearing of this application. I am conscious that the legal test of “serious injury” must be applied to the relevant facts and particular circumstances of the plaintiff. There is no template or ‘one size fits all’ approach. Having said that, and as mentioned to counsel in closing submission, there is some similarity between this application and the injury referred to in TTB SMS Pty Ltd v Reading.[23] In my view, the finger/hand injury suffered by the plaintiff, similar to the injury in Reading, is productive of a mild impact on recreational activities and day-to-day activities. I accept that the impairment consequences to the plaintiff are not “trivial” but, in my view, they are not “at least very considerable”.
[23] [2020] VSC 203
29Accordingly, the application is dismissed.
30I shall hear from the parties as to the question of costs.
- - -
0
1
0