Molloy v Central Victorian Hospitality Group Pty Ltd (in liq)
[2014] VCC 840
•9 May 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-03748
| CRISTIE MOLLOY | Plaintiff |
| v | |
| CENTRAL VICTORIAN HOSPITALITY GROUP PTY LTD (in liquidation) | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 8 and 9 May 2014 | |
DATE OF JUDGMENT: | 9 May 2014 | |
CASE MAY BE CITED AS: | Molloy v Central Victorian Hospitality Group Pty Ltd (in liq) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 840 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the dominant right hand
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted to the plaintiff to commence proceedings for the recovery of pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr D J N Purcell | Arnold Dallas McPherson |
| For the Defendant | Mr W R Middleton QC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
1 This application for leave to sue for pain and suffering damages only is made under the Accident Compensation Act 1985 (“the Act”). The injury relied on is a crush injury to the dominant right hand suffered in an incident at work on 8 September 2010 when a fridge slipped off a trolley and crushed the plaintiff’s hand, stripping skin off the fingers.[1]
[1]Plaintiff’s Court Book (“PCB”) 22
2 The plaintiff is aged thirty years and is the mother of four children. Her youngest was born in September 2013. She is out of the workforce presently. Her work history has been as a cook, in kitchen work, in cafés and local pubs.
3 The admitted compensable injury is said by the defendant to be not “serious” as defined by the Act. I do not agree. The proper judgment of the consequences in this case involves an appreciation of not only what the plaintiff is prevented from doing but an appreciation of the background of pain and frustration against which she carries out the 101 responsibilities she has as a young mother of four children. Importantly, she is largely on her own in that regard as her husband works full time, often six or seven days per week.
4 I note the repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied the repeal. Nevertheless it is incumbent on me to give clear, proper and adequate reasons. It is not however necessary in this brief application to describe the medical evidence in great detail.
5 In this case, the very young age of the plaintiff is relevant. She was only twenty-seven years old when she suffered the injury. Her very long life expectancy is a factor in assessing the consequences and symptoms from an injury that has really seen treatment exhausted.[2]
[2]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26, Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
6 Permanent pain and symptoms are her lot now and are for the foreseeable future. The plaintiff's treatment is indicative of a very nasty injury. She was taken to the Bendigo Base Hospital where she was admitted overnight. The next day saw her transferred to the Northern Hospital in Melbourne. Surgery was performed by a Mr Wai-Ting Choi on her right index, middle and ring fingers. He diagnosed a fixed flexion deformity of the middle finger after the surgery. The surgery involved repair of the flexor digitorum profundus tendon; both digital nerves also required repair; the index finger had a skin wound and the ring finger required skin grafting.[3] Extensive hand therapy followed and the plaintiff indicated she has been treated by four or five hand therapists.
[3]PCB 31
7 In March 2011, the surgeon considered further surgery was required and approval for it was sought. She had a fixed deformity of the middle finger and there were also other forms of treatment that he predicted. He thought continuing hand therapy and manipulation under general anaesthetic would possibly be needed, as well as tenolysis of the flexor tendons.
8 On any view the results of the initial operation on 9 September 2010 as well as the extensive follow up hand therapy had not achieved the result the surgeon had hoped for. His recommendation was for future surgery. It did not take place.
9 It is nevertheless consistent with a serious level of symptoms that this busy young plaintiff went down again to the Northern Hospital in Melbourne and presented herself on 3 June 2011 for a further operation. For some reason after being prepped for the general anaesthetic, a surgical team, whoever they were, decided not to proceed and the plaintiff was not told why.
10 The last report of Mr Choi is after this proposed surgery was abandoned.[4] He did not say whether or not he had seen the plaintiff again. I infer he probably had seen her again because in November 2011, he now said she had also developed some complex regional pain with hyperpathia, allodynia and hypersensitivity as well as some allodynia of the wrist. He had not mentioned these conditions in his earlier report of March 2011.[5] Without hearing from him it is not certain whether he saw her again but he probably did review her it would seem, when one examines the difference between these reports and the further diagnoses he made in the second report. In any event, these were the conditions he thought she had some fourteen months after her injury.[6]
[4]PCB 31
[5]PCB 27
[6]PCB 31
11 The Northern Hospital report is indicative of very intensive treatment. It recorded more detail of the extensive surgery to her dominant hand in September 2010. Injuries included complete 100 per cent division of both tendon and nerve structures. It is worth recording the hospital’s note of the operation:
“The right index finger was found to have the flexor digitorum profundus intact and the neurovascular bundles intact. The wound was debrided and there was a distally based flap over the distal interphalangeal joint which was sutured. The right middle finger was debrided and there was a long distally based flap over the middle phalanx. The flexor digitorum profundus was 100 per cent divided. The ulnar nerve was 100 per cent divided. The radial nerve was partially divided. These were all repaired. The right ring finger had loss of full thickness skin over the second phalanx, a split skin graft was used to close this from the thenar eminence.”[7]
[7]PCB 38
12 There followed a great deal of other treatment that included antibiotics, painkillers and follow up visits to the outpatients and hand therapists. The report then recorded seven visits to the Melbourne hospital before the proposed surgery saw her in theatre on 3 June 2011. The reason surgery was not performed is not spelt out.[8] A great deal of follow up visits after 3 June 2011 to the hospital took place. Another seven visits to Melbourne were recorded in terms of the outpatients section, with the last one mentioned being 21 March 2012. Also some twelve or so hand therapist attendances are mentioned and a number on different dates than the attendances at the outpatient department.
[8]PCB 39
13 On the probabilities her treatment and travel from rural Victoria are, in my opinion, indicative of a very high level of pain and concern. When last seen, Professor I Brand, on behalf of the hospital, recorded:
“She was still experiencing difficulty with her daily living tasks.”[9]
[9]PCB 39
14 I find this is still the case now. It is probably a permanent situation.
15 The plaintiff was to have further review at the hospital and the Professor, rather gloomily, reported to this young woman’s solicitors:
“It would appear that your client will be unable to return to work as a chef.”[10]
[10]PCB 39
16 I accept for her this is a great loss.[11] He concluded by saying there was nothing to suggest any pre-existing injury or condition was relevant. I so find on all the evidence.
[11]PCB 26
17 I do not accept there is any relevance to an assessment of the plaintiff’s organically-based right hand impairment in some earlier material about some psychiatric issues three and a half years prior to her hand injury.[12] I do not draw any adverse inference against the plaintiff’s application in there being no reports from a hand therapist or general practitioner. Her treating surgeon said no further treatment is really open to her. That evidence is clear.
[12]Defendant’s Court Book (“DCB”) 48-49
18 She has had physiotherapy in Bendigo up to mid 2013.[13] She has continued to take painkillers and use a pressure bandage to alleviate swelling and pain.[14] She had been on Panadeine Forte and Lyrica at times but now relies on over-the-counter analgesics. She presently takes Panadol about four times per day. She currently uses heat and ice packs most days as well as a TENS machine.[15]
[13]PCB 23 and 26A
[14]PCB 23
[15]PCB 26B
19 The unfortunate situation for the plaintiff is that it has been said by her treating surgeon that:
“…there is little further that can be done in relation to her upper limb injury.”[16]
[16]PCB 26A
20 I accept she has constant pain in her hand. She also suffers swelling up into her forearm from time to time.[17] She demonstrated in court where pain is present. She also demonstrated a clear deformity when trying to form a full fist. The middle finger in particular and two others were not capable of folding fully into a fist. I accept her demonstration was accurate.
[17]PCB 24 and 26B
21 I find on the evidence that she is basically left with the symptoms, including pain she presently has, and that will be the position for the foreseeable future in regard to her dominant hand. There is a very considerable consequence in terms of pain and suffering. She has, in effect, exhausted treatment, apart from daily painkillers and being careful about what she does. She is left with no medical alternative but to put up with her lot. She does so stoically.
22 The plaintiff must shoulder the major responsibility of parenthood and around the home. I did not find her exaggerating her situation or symptoms. She basically gets on with what she must do. However, her activities are affected in many ways by pain and the undoubted frustration her injury causes.[18] These things have to be done by this young mother. She must do the shopping. DVD evidence showed this. It also showed her putting shopping in numerous smallish plastic bags.
[18]PCB 20, 24, 26B, 27C
23 The plaintiff used both hands at times, but there was no shopping where the 45 hours of surveillance investigation demonstrated heavy shopping bags or other items of any great weight. She seemed on the film to me to compartmentalise shopping into numerous small bags that went into the car. She drives a car. She must drive a car. She handles her baby. She must handle her baby. However, I accept she does these things with difficulty, with pain and that the situation is permanent for her.
24 The plaintiff keeps up her netball interest by coaching. It causes some symptoms, but she perseveres. She was asked about the major impact of the injury and, for a young mother of four, she rather sadly said:
“I can’t care for my family properly”.[19]
[19]Transcript (“T”) T22
25 I accept that for her this is a very considerable consequence of the impairment of her dominant hand. It is a burden this conscientious mother must carry with her throughout the full extent of her motherhood.
26 Credit is important in applications such as this one. I found the plaintiff a candid witness. It was suggested to her that there were a number of activities that she was not precluded from. She agreed. She was taken through a large number of activities in this regard. Her reply was:
“No, and I do them, but I have difficulty doing them and I do have pain depending on what activity’s being done.”[20]
[20]T34
27 I accept that evidence is accurate with regard to a great deal of activities requiring use of her dominant hand on a daily basis.
28 Some suggestion was put to her that she portrayed herself as more disabled than she really was following a comment by one of the defendant’s doctors. She did not agree. She did not present in court as a person exaggerating. It was instructive to be able to observe and to hear her. She conceded her netball environment was in the coaching domain, driving, home duties, shopping and parenting duties in a way that, in my opinion, was not a person embellishing her injury. In fact, she gave the distinct impression of a person who gets on with her many responsibilities in a matter-of-fact way.
29 I found she has resigned herself to coping with her pain by taking daily painkillers, but she also alters the way she goes about a lot of her activity. The video shown was no more than a snapshot of the last three-and-a half-years. It was admittedly only some fifteen minutes or so of film, but was the product of many hours of professional surveillance. What it demonstrated was no more than a young mother going about her shopping, daily activities, and none of those depicted were strenuous, repetitive or very sustained.
30 The DVDs did not impact on her credit. She was reliable and straightforward. The medico-legal opinions included one from Mr F Ham, plastic surgeon, who examined the plaintiff for the defendant on 18 January 2012. He described her right hand injury involved three fingers and stated that she was:
“Unlikely to be able to return to cooking and carrying food, but may be able to return to a job which involves minimum use of her right arm and hand.”
31 This is a great loss to her at her age. He said further:
“If it is possible for the worker to obtain employment which involved little use of her right hand, she may be able to return now.”[21]
[21]PCB 33
32 I commenced the medical opinions with this view of a doctor engaged by the defendant because, for a young person injured at twenty seven, those limitations are very real. His comments do not just apply to lost employment that she enjoyed. Limitations of the type he described must necessarily impact on a multitude of activities for a mother in daily life, in fact throughout every day of her life. I accept this evidence. I find that to be so limited in the use of the dominant hand is to suffer a very considerable consequence in terms of loss of enjoyment of life.
33 He thought further, she “… seemed to have more complaints about her wrist”, and the defendant relies on this as indicating some different body part, as I understand the argument.[22] I disagree. Any wrist symptoms on all the evidence probably come from the crush injury to the hand that also involved severed tendon and nerve tissue and has later on probably led to complex regional pain syndrome, but I will deal with that later.
[22]PCB 34
34 Mr D Murphy, physician in rehabilitation medicine, is the doctor who saw her most recently on behalf of the plaintiff’s solicitors. At November 2013 he thought she had sustained multiple lacerations to her hands with injuries to palmar and digital nerves of the ring finger. He said she now has symptoms of Complex Regional Pain Syndrome Type 2, which is a common complication he said of such nerve damage injuries.[23] This has complicated already serious injuries.
[23]PCB 42
35 He described those serious injuries as requiring a flap over to the distal interphalangeal joint of the index finger, transection of the flexor digitorum profundus tendon of the middle finger, with injuries to the digital nerves requiring repair with a flap over the middle phalanx and full thickness loss of the middle phalanx requiring a split full thickness skin graft.[24] The prognosis in his opinion was only fair and hospitality work was now incompatible for her. This is consistent with what Mr Ham said. This limit on professional cooking impacts on many features of daily life with a large family, outside professional cooking.
[24]PCB 42
36 The opinion of Mr Murphy supports a very considerable consequence in terms of loss of enjoyment of life. He thought the condition stable. He thought the video footage was not in any way inconsistent with her presentation, complaints of pain and reported disability.[25] I agree. He made detailed observations about the film footage in relation to favouring the right hand, which I found consistent with my own observations of the footage.
[25]PCB 43
37 As already said, the treatment history and the treating doctors’ opinions support very considerable consequences in terms of loss of enjoyment of life. In addition, the plaintiff’s medico-legal medical evidence of itself also supports discharge of the onus of proof that the plaintiff bears.
38 Turning to the defendant’s material, I have already mentioned Mr Ham. A vocational assessment report from Ms C Trimmer of April 2012 was tendered.[26] It is of little use in this case as it is essentially dealing with employment capacity. It does not indicate what, if any, doctors’ reports were relied on by her, so the opinion carries little weight without knowing if any expert opinion was relied on. There is no history recorded from the plaintiff. All it involved was some box type pro forma questions. It did not address pain and suffering consequence as this application requires.
[26]DCB 7-8
39 The psychiatric report of Dr S Stern of July 2012 is not relevant to this paragraph (a) application where there is no real suggestion that the plaintiff’s impairment of the hand is not organically based. Some psychological aspects were referred to in the evidence. Nevertheless he found her cooperative and he found her pleasant.[27] He found some Adjustment Disorder with Mixed Anxiety and Depression but no psychiatric impediment to employment. She has had no psychiatric or psychological treatment.[28]
[27]DCB 13
[28]DCB 15
40 I read his full and unqualified clearance for work from the psychiatric viewpoint as meaning he did not see any significant problems in daily living from any mental disorder. Understandably she is anxious and at times depressed at having lost her work vocation and frustrated by her pain and daily compromise of activities. I find that frustration is consistent with the end of any treatment being offered to her that would materially alter her condition. I find her impairment is organically caused.
41 Dr D Barton, occupational physician, saw the plaintiff in July 2012. He thought she was developing an illness behaviour problem. He said the state of her palms indicated more use of the right hand than she was prepared to acknowledge. I find his reasoning unconvincing. She uses her right hand all day every day for all sorts of activities around the home, her family, the baby, coaching netball and shopping. In the end Dr Barton thought functional overlay features accompanied some sequelae following the traumatic injury.
42 Whatever the mental response was, he still stated that he was not sure she would be fully capable of doing normal and full kitchen duties.[29] I read that as an organically based limitation in his opinion. If there is a mental or emotional response to her unsuccessful extensive treatment, constant pain and daily difficulties, it is not significant in this case and it is not productive of the impairment nor of any consequences.
[29]DCB 20
43 On all the evidence it is little more than her disappointment and frustration at a situation that medicine cannot help and which she is going to have to deal with for the rest of her days. Her case is not put as a person who is an invalid. She rather bristled in the witness box when it was suggested that she presented herself as disabled. She said: “I didn’t say I was disabled.”[30] It was an emphatic reply. She is a very active mother and wife.
[30]T36
44 Mr J Buntine, plastic and hand surgeon, reported in 2012 and 2013. He did not accept a diagnosis of Complex Regional Pain Syndrome.[31] However, he did record the extensive damage done in the trauma and accepted significant physical limitation of movement in the middle finger.[32] He thought she suffered from problems of a physical nature although psychological factors may be much more important in his view. Her physical state would not improve.[33]
[31]DCB 30
[32]DCB 30
[33]DCB 31
45 His photographs indicate the permanent deformity of certain fingers.[34] He did not agree with the diagnosis of Complex Regional Pain Syndrome. I find the consequences in this case are very considerable, leaving aside whether or not she has developed that condition. In 2013, he reported again. He still found some physically-based restriction of movement. He had no doubt that some strength had been lost.[35] He thought:
“She would have difficulty and discomfort if she undertook work which involved manipulative activity or forceful gripping or lifting with her dominant right hand.”[36]
[34]DCB 34-36
[35]DCB 42
[36]DCB 43
46 Any reading of that statement indicates considerable limits on general activity both inside and outside any paid employment position. She clearly does all of those sorts of activities every day as a mother in terms of manipulative activity, forceful gripping, lifting and so forth. She just puts up with the difficulty and discomfort she gets with it. She gets on with her life. The consequences are nevertheless very considerable and not to be dismissed because she is stoical about her problems.
47 In this application I accept the pain the plaintiff still suffers and will continue to suffer is a very considerable consequence of the traumatic injury to her right hand. While there are different views on this topic, I further find on the evidence that she has probably sustained the additional consequence of the nerve damage in the form of development of CRPS. I prefer the evidence of the treating surgeon in this regard. He was in the best position to judge.[37]
[37]PCB 31
48 Mr Murphy found objective CRPS signs. I find these come and go on the evidence so it is not surprising that Mr Buntine, for example, did not find signs.[38] This condition has led to further disturbing symptoms for her in addition to her permanent pain and the deformity I have referred to already. These additional unpleasant symptoms include hyperpathia, allodynia and hypersensitivity.[39]
[38]PCB 42
[39]PCB 23 and 31
49 I accept that the many home activities, family duties, sporting, personal and other involvements she deposes to are impacted by her impairment. These are not precluded from her. She still carries out most if not all of those deposed to in her affidavit but she does it by putting up with pain and taking painkillers. To have to do so indefinitely is a very considerable consequence. For a conscientious young mother of four who gets little or no assistance most days from her busy husband, the loss of her ability to fully carry out her duties as a mother is a very considerable consequence in itself.
50 I accept for her the loss of the enjoyment of motherhood is very real and is “serious”. There are a number of activities that the plaintiff has also lost totally. Playing competitive netball and ten-pin bowling are examples.[40] She coaches netball so she is still involved in the sport but that is no substitute for the enjoyment of competition for a sportsperson. They are different involvements, coaching and competing. She has lost the capacity to be a cook.
[40]PCB 20, 21, 25, T37
51 While this application is with respect to pain and suffering damages only, it is highly relevant for a young person to face the sense of loss from permanently being unable to follow her chosen work. She enjoyed it and quite rightly took pride in it, in terms of a sense of achievement. She took pride in being a financial contributor to the household. It was a career that gave her great happiness. She is motivated to look at other avenues of work but the loss is there and is a very considerable consequence for such a young person to be shut off from doing the work that she loved.[41]
[41]PCB 22 and 26
52 For all the above reasons I grant leave to bring proceedings for pain and suffering damages.
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