Morrall v RL Plumbing and Roofing Pty Ltd
[2019] VCC 964
•1 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-00120
| CAMERON MORRALL | Plaintiff |
| v | |
| RL PLUMBING & ROOFING PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 June 2019 | |
DATE OF JUDGMENT: | 1 July 2019 | |
CASE MAY BE CITED AS: | Morrall v RL Plumbing & Roofing Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 964 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation Compensation Act 2013 – s325 and s335 – application in respect of pain and suffering only – reliance upon sub-paragraph (a) of the definition – injury to the left hand and particularly to the left thumb – very impressive young plaintiff – only real issue is whether statutory test satisfied – whether statutory test satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allan | Slater & Gordon |
| For the Defendant | Mr J Batten | IDP Lawyers |
HIS HONOUR:
(a) General background
1 This matter comes before me by way of an application pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013, (hereinafter referred to as “the Act”). The plaintiff seeks leave to bring proceedings for damages in respect of pain and suffering only. In so doing, he relies upon paragraph (a) of the definition of “serious injury” contained in s325 of the Act. The injury relied upon is one to the left thumb and shall hereinafter be referred to as “the injury”. The injury occurred on 17 November 2016, when the plaintiff was in the course of his employment with the defendant as a trainee plumber. He was handling a piece of sheet metal at the time. This shall hereinafter be referred to as “the accident”. Whilst there was also referral to the injury being suffered throughout the course of the plaintiff’s employment with the defendant, in fact the presentation of the application effectively focussed solely upon the accident. The plaintiff is right handed.
2 In any event, there was no dispute concerning the accident or the circumstances in which the plaintiff suffered the injury. The plaintiff’s claim for statutory benefits and the like was accepted. The general nature of the accident and of the injury suffered are not disputed for the purposes of this application. As counsel for the defendant stated, this is in essence what is frequently described as a “range case” – are the consequences of the injury sufficient to satisfy the statutory definition?
3 Mr L Allan of counsel appeared on behalf of the plaintiff. Mr J Batten of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of three affidavits as being true and correct. The remainder of the evidence was documentary in nature, including a surveillance video which was shown, and was tendered either by consent or without opposition. Counsel are to be congratulated for the concise and efficient manner in which the hearing of this application was conducted.
(b)The plaintiff’s background, education and employment prior to the accident
4 The plaintiff is aged 30 years, he having been born in 1988. He is a married man with a three year old daughter. In addition, his wife on 6 June last gave birth to twins. The plaintiff was educated to Year 11 level at St Bernard’s College, Essendon and then completed Year 12 as part of a course entitled Victorian Construction Equipment at the Royal Melbourne Institute of Technology.
5 Initially, the plaintiff worked as a parts interpreter for some five years. However, his ambition was to be a plumber, and in particular a roof plumber. In approximately June 2016, he obtained a position as a trainee roof plumber with the defendant. This was for three months, but was extended. The plaintiff was still so employed as at the date of the accident.
(c) The state of the plaintiff’s health prior to the accident.
6 The plaintiff was in good health prior to the accident and was a frequent attender at a gymnasium, where he performed a regime of weightlifting and the like. He had suffered no prior injury to his left hand and seems to have been particularly fit and well.
(d) The plaintiff as a witness
7 The plaintiff presented as a completely genuine and straightforward witness. I agree with Mr Allan that, if anything, he tended to downplay the consequences of his injury. Surveillance was shown of the plaintiff, with assistance from family members including his father, engaging in a recent shift of homes. I agree with the submission of Mr Allan that what was seen of the plaintiff on the surveillance was entirely consistent with his evidence. I noted that, when unloading and moving a couple of heavy objects with the assistance of his father, he used his right hand and on one occasion appeared to specifically avoid contact with his left thumb. As pointed out by Mr Allan in his closing address, it could be seen, at least in one instance, that, even when lifting a relatively light object, the plaintiff’s left thumb was not engaged at all – see T49.
8 My overall conclusion is that the surveillance did his credit no damage whatsoever. He was a particularly impressive witness and totally credible. I accept him as being honest and reliable.
(e) The injury, its treatment and diagnosis
9 I say at the outset of this aspect of the judgment that the area of the plaintiff’s left hand which has been damaged was examined for medico-legal purposes by three plastic surgeons – Mr Murray Stapleton and Associate Professor Felix Behan at the request of the plaintiff’s solicitors, and Mr Damon Thomas at the request of the defendant’s solicitors. I shall return to a discussion of their reports, but in reality there are very few differences of significance between their opinions. This is another indication of the narrow area of dispute involved in this application.
10 I would also point out that, along with Counsel, I inspected the plaintiff’s left thumb. He indicated the area of the scarring, which, whilst not prominent, was visible and gave some indication of the extent of the original laceration. He also demonstrated the restriction in relation to the range of movement of the thumb, this being quite substantial, and the area of total lack of feeling, which was comparatively large.
11 Returning to the accident itself and the treatment of the injury, the laceration, which was deep and substantial, was to the webbing around the base of the left thumb. At the time that the accident happened, the plaintiff was the only person from the defendant on site and, as a result, he attempted to ring for an ambulance. There were problems in this regard and, ultimately, he contacted the proprietor of the defendant, who conveyed him to the Royal Melbourne Hospital.
12 Upon examination at the Royal Melbourne Hospital, it was noted that he had reduced sensation and strength in the thumb. He was conveyed to the operating theatre by the plastic surgical team for washout and debridement of the wound. Further, he was found to have an 80 per cent ruptured tendon of the thumb and complete rupture of the ulnar digital artery and nerve to the thumb. These structures were repaired, and he was discharged home on the same day, with antibiotics and painkillers, and using a splint. This was to be worn for four weeks. The plaintiff had regular follow-up visits to the plastic surgeon. He was also referred for hand therapy and scar management, as well as for the increasing of strength and range of movement and the like. He was last seen at the hospital on 30 January 2017, by which time he had returned to work on light duties. He was complaining of lack of strength, as well as tenderness over the scar. Effectively, he was given a home exercise program. He does not seem to have attended the Royal Melbourne Hospital on any later occasions.
13 Also placed in evidence was a report dated 19 February 2019 from Dr David Wilson, of the Glenroy Road Clinic, Glenroy, who was the plaintiff’s original treating general practitioner. Dr Wilson had reviewed the plaintiff on 16 February 2019. In his report, Dr Wilson sets out the history of treatment at the Royal Melbourne Hospital, adding that the plaintiff was not currently having treatment. Dr Wilson reported that, following the injury, the plaintiff cannot do the heavy carrying required when working as a roof plumber and has lost confidence for that sort of work. He was working as a network technician for NBN. The plaintiff described this as light work.
14 Upon examination, Dr Wilson found that there was scarring at the base of the thumb with moderately decreased flexion of the interphalangeal and metacarpophalangeal joints. There was decreased sensation in the lateral aspect of the thumb extending to the palm of the hand. The plaintiff stated that his work capacity was for light duties. He was unable to do his weightlifting anymore and could not play indoor cricket or do home renovations, with which he used to assist his father. The base of the thumb gets tired and sore every day and he has to massage it, especially in cold weather. His activities have been reduced. The plaintiff has no other obvious health problems, apart from the injury to the base of the thumb. Dr Wilson noted that the plaintiff had suffered a significant injury to a tendon, nerve and muscle at the base of his thumb, with long-term residual reduction in activity and pain. There was some disfigurement. Dr Wilson also noted that the plaintiff had some stress and anxiety as a result of the injury and queried as to whether assessment by a psychiatrist might assist.
15 As indicated, the plaintiff has also been seen for medico-legal purposes. Mr Murray Stapleton, plastic and hand surgeon, saw the plaintiff at the request of his solicitors on 16 April 2019. He took an appropriate history. Mr Stapleton recorded that the left thumb was painful from time to time, particularly in cold weather, and that the power of the grip was diminished. The plaintiff had lost movement of flexion and extension of the left thumb and had no sensation down the inner aspect of it, giving him a problem with a pinch grip, particularly when holding smaller objects, as he is unable to perceive the strength of that grip. The scar across the base of the thumb had settled very well (I would agree that, whilst the scar is visible upon close inspection, it is not particularly prominent).
16 Mr Stapleton also expressed the opinion that the plaintiff’s condition had reached maximum medical improvement. Upon examination, Mr Stapleton found that the plaintiff had no appreciable sensation down the inner side of the left thumb. Over that part of the thumb, the plaintiff is unable to determine, for example, the difference between sharp and blunt, hot and cold, rough and smooth. In addition, the thumb movements are diminished and the metacarpophalangeal joint is fused at 20 degrees of flexion.
17 The diagnosis of Mr Stapleton was of a deep laceration at the base of the left thumb with tendon and nerve damage, the condition now being stabilised with no further treatment required. For the plaintiff, pushing, pulling, lifting, repetitive activities, climbing and the manipulation of small objects are all a problem. Mr Stapleton added the observation that, in general, the manual dexterity of the plaintiff on the left side is very much reduced because of the accident.
18 Associate Professor Felix Behan, plastic and reconstructive surgeon, examined the plaintiff at the request of his solicitors on 13 May 2019. Associate Professor Behan took an appropriate history and noted that, at surgery, there had been found an 80 per cent division of the adductor pollicis and complete rupture of the ulnar digital ulnar and nerve. Associate Professor Behan reported that the plaintiff indicated that the thumb had restrictions of function with sensory changes persistent. The dysthesia changes over the thumb pulp were mainly located at the ulnar side of the digit, but an element of radial pulp sensory change was also noted.
19 Associate Professor Behan took some measurements, noting that the flexor tip of the left thumb reached 45 degrees at the IP joint, compared with 90 degrees on the right side. There was a reduction of strength of the left hand of 20 kilograms, compared with 30 kilograms on the right. Fine dextrous activity, such as doing up nuts and bolts, was not as good as it had been before the accident. There was cold weather sensitivity and the presence of scar tissue at the base of the left thumb hindered working in the winter months. The cold stimulated pain which goes through the thumb up to the palm and the plaintiff described a type of stabbing sensation.
20 Associate Professor Behan noted that sporting activities, such as indoor cricket and fishing, had ceased and that the plaintiff could not do gym work anymore. He also noted that the plaintiff had been in consultation with his local medical officer for psychological support and no medication had been prescribed. The plaintiff seems to have made a favourable impression, with Associate Professor Behan referring to his well-balanced personality.
21 Associate Professor Behan diagnosed that there was the division of the adductor pollicis and ulnar collateral digital artery and nerve in the left thumb, with some possible damage to the radial collateral nerve. In relation to the physical examination, supplemented by digital photography, Associate Professor Behan referred in part to a severe level of neural impairment bordering on anaesthesia. He considered that the plaintiff had a disability from an industrial loss point of view, also referring to the clinical, domestic, industrial and social aspects involved. Associate Professor Behan referred to the plaintiff having limited fine pincer activity and painful grip when handling power tools.
22 In his concluding observations, Associate Professor Behan recorded the fact that the plaintiff had ongoing complaints of the left thumb, with weakness. The sensory recovery in the pulp of the left thumb had been limited. The possibility of further operative intervention was considered. Numerous digital photographs were annexed to the report of Associate Professor Behan, these having some comments appended. There was again a reference to the severe level of neural impairment, bordering on anaesthesia, over part of the thumb.
23 Mr Damon Thomas, plastic and reconstructive surgeon, examined the plaintiff at the request of the defendant. As was the case with Associate Professor Behan, part of his report is directed towards a Whole Person Impairment Assessment. The date of this report is 30 January 2018. To Mr Thomas, the plaintiff complained of permanent and persisting paraesthesia, loss of strength, loss of confidence secondary to those issues, and pain in the thumb with lifting and manual work, as well as a feeling of tightness in a cold environment. The plaintiff indicated that he had not been doing a lot of sports or hobbies prior to the injury. He had lost confidence in relation to the use of the hand. Due to this lack of confidence, he had ceased being a roof plumber and was undergoing retraining.
24 Mr Thomas stated that the plaintiff had a longitudinal sensory deficit with absent two-point discrimination over the ulnar border of the thumb over a 100 per cent length of the thumb. The overriding diagnosis of Mr Thomas was of a left thumb laceration with complete division of the ulnar digital nerve with secondary loss of sensation to the ulnar border of the thumb. This resulted in reduced feeling, thereby reducing function, and there was an overall reduction of movement and dexterity of the hand.
25 Mr Thomas stated that this was a permanent condition and that the impairment will always exist. He would not expect any improvement or deterioration. A considerable part of Mr Thomas’ attention was directed towards an evaluation of permanent impairment. Whilst such assessments have no direct bearing upon the test involved in relation to serious injury, it is perhaps worth noting that Mr Thomas assessed the impairment of the plaintiff’s thumb at 70 per cent, which, applying the tables relevant to that mode of impairment assessment, corresponds to an impairment of the upper limb of 25 per cent. I only mention these things in order to indicate that clearly Mr Thomas was of the view that the injury involved a quite significant degree of impairment, even if that be pursuant to the method of testing employed in the AMA Guides. In the same context, Mr Thomas was of the view that the scarring involved did not warrant a significant impairment assessment.
26 Effectively, there is unanimity as to the diagnosis. Mr Stapleton has expressed this in general terms as being a deep laceration to the base of the left thumb with tendon and nerve damage. I accept this as a general description or diagnosis of the injury. The diagnosis of Associate Professor Behan is more specific, referring to a division of the adductor pollicis and ulnar collateral digital artery and nerve, with possibly some damage to the radial collateral nerve, whilst that of Mr Thomas is a laceration with complete division of the ulnar digital nerve with secondary loss of sensation to the ulnar border of the thumb, the result being reduced feeling, reduced function and reduction of movement and dexterity of the hand.
27 I accept these diagnoses, which overlap, and which seem to me to fall within the general description given by Mr Stapleton. I might add that this also coincides with the diagnosis of the treating general practitioner, Dr Wilson, who has stated that the plaintiff “suffered a significant injury to a tendon, nerve and muscle to the base of his thumb with long term residual reduction in activity, and pain.”
28 In relation to permanence of consequences, Mr Stapleton stated that the plaintiff’s condition has reached maximum medical improvement, whilst Mr Thomas stated that it is very unlikely that there will be any improvement. Whilst Associate Professor Behan has raised the possibility of some further surgical review, there is no indication that this is going to happen. I am satisfied that the consequences of the injury are permanent within the meaning of the Act and, in any event, the contrary was not argued.
29 There is no suggestion that the injury and its consequences represent the aggravation of a pre-existing condition and I do not so find.
30 Pursuant to s325(2)(h) of the Act, psychological or psychiatric consequences of a physical injury are only to be taken into account for the purposes of paragraph (c) of the definition, a provision not relied upon in this case. Whilst Dr Wilson has referred to the plaintiff as having some stress and anxiety as a result of the injury, it would not appear that the plaintiff has had any treatment in this regard and no reports from any experts, such as psychologists or psychiatrists, were placed in evidence by either party. Certainly the plaintiff gave no indication of problems of this nature in the witness box. Any psychological or psychiatric consequences shall not be taken into account, but I am far from persuaded that there are any of any moment and, indeed, essentially this was not argued.
(f) Other developments since the injury
31 Following the accident, the plaintiff was absent from his employment for a period of approximately four months. He then returned to work with the defendant, but only lasted one day. On 31 March 2017, he wrote to the defendant tendering his resignation. Whilst there was some cross-examination concerning this and as to whether the resignation was due to financial reasons rather than the effects of the injury, I accept the plaintiff’s evidence that his principal reason for resigning was the pain which he was suffering. Apart from the loss of confidence which had occurred, he had difficulties performing the grasping and lifting tasks that were required.
32 Apart from doing some casual work as a Uber Eats driver, the plaintiff did a trainee course and as a result obtained a Certificate III in Telecommunications Network Build & Operation. Initially this was when he was employed by an entity called BSA Limited, which was involved in telecommunications. Apparently it “ended up going under” – see T18. The plaintiff then obtained his current position with Align Industries and the work which he is now performing relates to conversion to the NBN system. Whilst his duties involve him in using both hands, he is able to perform them, although he faces some difficulties in relation to the use of his left hand.
Ruling
33 I find that the plaintiff has discharged the burden of proof. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(a) I accept the plaintiff as a completely honest witness. In applications of this nature, the credit of the plaintiff is usually important. As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439 at [448]:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance.”
This observation has been referred to more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and in Haidar v Transport Accident Commission [2016] VSCA 182. Bearing the above in mind, I accept the plaintiff’s evidence, both oral and in his supporting affidavits, in relation to his pain, suffering and interference with his life.
In this regard, I would also refer to what was said by Maxwell P in In Haden Engineering Pty Ltd v McKinnon [2010] 31 VR 1 as follows:
“As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
I have made it quite clear that I am of the view that the plaintiff presented as a highly credible and reliable witness.
(b) The plaintiff is only 30 years of age. There is nothing to suggest that he has anything other than a normal life expectancy. Accordingly, he is likely to have decades ahead of him of having to cope with a left hand which is constantly painful and which has a reduced capacity of quite substantial proportions. In this regard, Mr Allan referred me to the decision of the Court of Appeal in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, in which the following was said:
“All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”
(c) The plaintiff has given evidence that he suffers constant pain and discomfort in his left hand, apart from the inhibitions and restrictions emanating from the portion of it in which there is no feeling. Pain of this nature is a matter of importance. The plaintiff now takes Mobic daily, this having been prescribed by his now treating general practitioner. Apparently the change of doctor was for geographic reasons.
As was said in Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable” consequence’.”
As best he can, the plaintiff has got on with his life. He has found suitable employment. This is not something which should count against him. As was said by Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260:
“… the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can … it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
(d) What has been said above in relation to constant pain, stoicism and the like is applicable to some other features of this particular injury. There are also the problems caused by that part of the thumb where there is a loss of feeling, in addition to such matters as loss of grip strength and the like. It is trite to say that the thumb is a particularly important digit which plays a very significant role in the use of the hand. The plaintiff has been left with a thumb which, seemingly for the rest of his life, will be constantly painful in relation to part of it and having no sensation or feeling in the other part. Clearly there is a loss of use of the thumb, which translates into a loss of use of the hand and thus of the upper limb, which is more than significant or marked and is at least very considerable, as are the consequences that result from this.
(e) I also accept that the plaintiff very much wanted to be a plumber, and particularly a roof plumber. Whilst, as stated, he has got on with his life and found a suitable occupation, the prospects of working as a plumber would appear to have gone. As stated by Mr Thomas, examining on behalf of the defendant, there is a permanent reduction in function, movement and dexterity of the hand. Mr Stapleton has described how the manual dexterity on the left side is very much reduced because of the accident, going on to express the opinion that the plaintiff would not be capable of continuing as a roof plumber. Mr Stapleton also stated that it would not be safe for the plaintiff so to do. I accept this. Effectively, it means that his preferred and selected occupation is lost to him permanently.
(f) I also accept that there has been interference with the plaintiff’s everyday life and activities. This could be expected to result from an injury such as this. The plaintiff has sworn that the injury has restricted him from a lot of daily activities. In his more recent affidavit, he has sworn how he has not been able to go back to his principal pre-injury pastime of lifting weights. He has not returned to indoor cricket. He has been put off from going fishing, because of an increase in pain and generally feeling uncomfortable. He used to help his father a lot with such things as renovations and the like. In addition, he has a very young family and it is not difficult to imagine the problems that may arise in that regard, both as to pain and as to manual dexterity.
The affidavits of both the plaintiff’s father and his wife, neither of whom were cross-examined, are fully supportive of his evidence. As submitted by Mr Allan, in a situation where there is no damage to the plaintiff’s credit, the supporting lay evidence is “undiminished in its significance and ought to be taken into account” – see Principe v Transport Accident Commission [2016] VSCA 205.
34 In summary, the plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings for pain and suffering damages. I shall hear the parties as to any further orders that are required.
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