Murkes v Hudson Pacific Corporation Pty Ltd
[2013] VCC 521
•10 May 2013
| 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-12-01301
| KIVEN MURKES | Plaintiff |
| v | |
| HUDSON PACIFIC CORPORATION PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 29 April 2013 | |
DATE OF JUDGMENT: | 10 May 2013 | |
CASE MAY BE CITED AS: | Murkes v Hudson Pacific Corporation Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 521 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to left index finger on the non-dominant hand – loss of function – whether pain and suffering consequences are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB(38)(c)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Burrow v Network Personnel Pty Ltd [2013] VSCA 46; Church v Echuca Regional Health (2008) 20 VR 566
Judgment: The Originating Motion is dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Paine | Grando & Breheny |
| For the Defendant | Mr Ian Gourlay | Minter Ellison |
HIS HONOUR:
Introduction
1 This proceeding is an application brought by Originating Motion dated 22 March 2012 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of and in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages only.
3 The injury suffered by the plaintiff for which he seeks leave to bring proceedings for damages is an injury to the index finger on his non-dominant left hand.
4 The following evidence was adduced during the hearing:
·Exhibit A: the Plaintiff’s Court Book (“PCB”) pages 26 – 54
·Exhibit B: the Defendant’s Court Book (“DCB”) pages 1 – 18
·Exhibit 1: DVD surveillance film for 14 August 2012
·Exhibit 2: DCB pages 19 and 20.
5 This application is brought under the definition of “serious injury” contained in ss37(a) of the Act, which requires a plaintiff to prove that he has suffered “permanent serious impairment or loss of body function”. The loss of body function in this case is the use of the left hand.
6 Mr Gourlay, on behalf of the defendant, identified the issue in this application was whether or not the consequences met the statutory test. In short, this case is a “range case”.
The statutory scheme
7 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999;[1]
[1]s134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38).
I have applied the principles set forth therein in reaching my conclusions in this application.
9 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
10 The plaintiff was born in October 1980. He is now thirty-two years of age. The plaintiff was born in Iraq and arrived in Australia in 2005, after spending two years in Turkey as a refugee.[3] The plaintiff has recently married and has no children.
[3]PCB 26
11 The plaintiff, prior to leaving Iraq, had completed two years of a mechanic’s course and had commenced an engineering course at university. He ceased that university course after six months in order to flee to Turkey.
12 The plaintiff, since arriving in Australia, originally worked at a packaging factory in 2005. He commenced work with the defendant in early 2007.[4]
[4]PCB 26
Injury with the Defendant
13 The plaintiff was employed as a general factory hand and process worker with the defendant at Keilor Park Driver, Tullamarine. On 5 May 2009, in the course of his duties with the defendant, the plaintiff was injured when a band saw used for cutting a block of parmesan cheese slipped and cut the plaintiff’s left index finger. The plaintiff’s left index finger was almost amputated as a result of the accident.
14 The defendant accepts the injury occurred in the manner described by the plaintiff.[5]
[5]PCB 27, paragraph 4
Medical treatment
15 Immediately after the accident, the plaintiff was taken to the Northern Hospital. On the following day, his finger was operated on and he was discharged from hospital that evening. Upon his discharge from hospital, the pain to his left finger was very severe and he had to return to hospital for an increase in his painkilling medication. His finger remained in a splint for three weeks.[6]
[6]PCB 28
16 He attended at the Outpatients Department at the Northern Hospital and also upon his general practitioner, Dr Hamdan. His initial treatment was by way of painkilling medication and anti-inflammatory medication. The plaintiff was subsequently referred to a hand therapist and he underwent that therapy for several months.[7]
[7]PCB 28
17 The plaintiff remained off work for a period of five to six months.[8] The plaintiff commenced a graduated return to employment and subsequently built up to full-time duties. The plaintiff did not return to the same duties of general factory hand and process worker.[9]
[8]PCB 28, paragraph 5
[9]PCB 28, paragraph 6 and T 8
18 The plaintiff’s current employment is with the same employer but his duties now include paperwork, including the printing of labels on a computer and invoices, and also driving a forklift.[10]
[10]Transcript (“T”) 23
19 The plaintiff has no current medical treatment and takes Panadol for pain relief as and when he needs it.[11]
[11]T36
The medical opinions
20 The plaintiff relies upon the opinions of the following doctors:
(a) Dr Hamdan, general practitioner
21 Dr Hamdan gave his opinion as follows:
“The index ROM is now better than before but still there is restricted movement of his left hand, which is affecting his ability to perform his usual work duties, also his injury has affected his ability to perform his usual activity’s (sic) and reduced his ability to perform recreation, like playing soccer and billiards because of the reduced ROM of the left index finger and the pain in the left hand.”[12]
[12]PCB 37
22 I note in that same report, that Dr Hamdan referred the plaintiff to Dr Clayton Thomas, a rehabilitation specialist. There was no report from Dr Clayton Thomas tendered in this case. I also note that the plaintiff was referred to Mr Damian Ireland, hand specialist, in the consultation of 25 January 2010. There was no report tendered from Mr Damian Ireland. It is unknown whether the plaintiff even went to see Mr Ireland. I do not draw any adverse inference against the plaintiff in respect of these two medical practitioners but just note their involvement in his treatment for completeness.
23 The general practitioner’s report is now some two-and-a-half-years old and is not entirely relevant in my considerations which have to be made at the time of the hearing.
24 I note from the general practitioner’s progress notes, which were contained within the Defendant’s Court Book, that the last note in consultation with Dr Hamdan concerning the plaintiff’s difficulties with his left index finger was made on 20 September 2010.[13]
[13]DCB 7
(b) Mr Nigel Mann
25 There is no formal report prepared by Mr Mann. Mr Mann is the surgeon who performed the operation on the plaintiff’s left finger on 6 May 2009. An operation note appeared in the Plaintiff’s Court Book at page 39. The report of Mr Mann refers to the near amputation of the plaintiff’s left index finger. The site of the near amputation is through the PIP joint.
(c) Mr Peter Maloney
26 The plaintiff was referred to Mr Peter Maloney, hand surgeon, by the general practitioner, Dr Hamdan. Mr Maloney prepared a report dated 8 February 2010. Mr Maloney noted that the plaintiff had made a full return to work on a full-time basis by 26 October 2009. He noted that the plaintiff had an inability to fully flex the left index digit. Mr Maloney noted that pain was caused by the forced flexion or a knock on the left index finger.
27 Mr Maloney’s opinion was as follows:
“Kiven understands that he has had a very good result to date from his injury, the surgery and therapy provided. I think the pain he has with forced flexion and direct contact is reasonable given his bony defect. It is likely to be a sensitive area for up to two years after the injury. It is only 10 months since his injury and I think he has done very well, and a lot of that is a result of his own diligence to his hand therapy.”[14]
[14]DCB 18
(d) Mr Murray J Stapleton, plastic and hand surgeon
28 The plaintiff was referred to Mr Murray Stapleton, plastic and hand surgeon, for medico-legal reporting. Mr Stapleton has prepared two reports dated 21 September 2011 and 5 April 2013.
29 In his first report, Mr Stapleton notes that the plaintiff had suffered a severe laceration, indeed almost a complete amputation, of the left index finger.[15] Mr Stapleton noted that the index finger is painful when the plaintiff bumps the finger. The photographs which are attached to his report, have a reduced range of flexion. Mr Stapleton noted that the power of the plaintiff’s grip had been diminished. It was noted that the plaintiff used his left thumb and left middle finger when he was attempting to pick up small objects. Mr Stapleton noted that there had been no further surgery and that the plaintiff took no medication.[16]
[15]PCB 42
[16]PCB 43
30 Mr Stapleton noted as follows:
“His left index finger, on the thumb side, has a 2 cm transverse scar across the proximal interphalengeal joint and the laceration scar extends to 3 cm towards the base of that finger.
…
He has been profoundly incapacitated to perform his pre-injury and like employment and that capacity is now permanent.
…
His working life, social, domestic and recreational activities have all been affected.”[17]
[17]PCB 44
31 The plaintiff returned to Mr Stapleton more recently and he was examined on 5 April 2013. In a report of that date, Mr Stapleton noted as follows:
“His duties now involved ‘paperwork’, forklift driving, checking of products and despatch organisation.
…
He has no pain in the left index finger while at rest but when he attempts to flex the finger, particularly on a cold morning, the pain is quite severe and remains as bad as ever. The power of the grip of the left hand has diminished.
…
His hobbies are soccer and swimming.”[18]
[18]PCB 48
32 Mr Stapleton gave the opinion that the plaintiff needs no further treatment. He noted as follows:
“He is permanently incapacitated to perform his pre-injury duties. Manipulative, repetitive activities, in my view, will be permanently beyond his capacity. The current duties provided for him would appear to be adequate and indeed, ideal.”[19]
[19]PCB 49
33 In summary, the medical opinion is that the plaintiff has made a very good recovery from a near amputation of his left index finger. It is clear from the medical opinions that the plaintiff has some ongoing limitations in the use of his left hand, in particular his left index finger. The plaintiff has been able to adapt his grip in respect of his left hand by using the thumb and middle finger for manipulation of smaller objects. The ongoing pain when the weather is very cold or when the plaintiff’s site of injury is knocked seems to be the main ongoing consequence for him.
Consequences of the injury to the Plaintiff
34 The plaintiff swore two affidavits on 14 November 2011 and 8 March 2013. The plaintiff was also cross-examined and re-examined in the course of this hearing. The plaintiff deposes to the following consequences as a result of the injury to his left index finger.
Pain
35 The plaintiff states that he has pain and impaired sensation in his left index finger.[20] He stated that on a cold morning, he would wear a glove to ameliorate the effect of the weather. In particular, he said that when he was in the cool room at work, then he could only stay a short time before there was an increase in pain in his left index finger.[21] In cross-examination, the plaintiff agreed that he could remain in the cool room for up to two hours.[22] He stated that on a very cold morning, he would wear a glove to protect his finger.[23]
[20]PCB 34
[21]PCB 34
[22]T18
[23]T17
36 The plaintiff also stated that he experienced severe pain when his left index finger was bumped or knocked on some obstacle. He stated:
“A: When I hit it when it hurt me, I feel pain, I use Panadol, after that the pain just goes, so - - -
Q: If you take Panadol then the pain goes?---
A: Yes, and relax my hand, I take Panadol and relax, it goes.”[24]
[24]T19, L20-23
37 The plaintiff also gave evidence that he attempted to protect his left index finger by keeping it away from contact and using it generally. The purpose of this was to avoid pain to the left index finger if it came into contact with any objects. I accept that the plaintiff does have pain in the radial aspect of his left index finger when it is knocked. I also accept that he experiences some discomfort and pain as a result of cold weather or attending within the cool room at work. The plaintiff takes Panadol to control the pain and that is a successful course for him to take.
38 The plaintiff does not complain that the pain from his left index finger interferes with his sleep or that it is constant. Indeed, his history to the doctors is that he does not suffer pain constantly and that it is in the use of the finger or contact with it that produces pain. I conclude that the consequence of pain to the plaintiff is not very considerable in the range of pain producing injuries to injured parties.
Lack of mobility
39 The plaintiff complained of stiffness and limited movement of his left index finger.[25] In cross-examination, the plaintiff gave the following evidence:
“Q: So you say that you had stiffness in moving that joint?---
A: Yes.
Q: The next thing you say is limitation of movement so I suppose that goes hand in hand with the stiffness – because it’s stiff you couldn’t move it all the way in as far as you could before?---
A: Before the accident I closed my finger fully but now I can’t.”[26]
[25]PCB 34, paragraph 3
[26]T14 L29 – T15, L3
40 During the course of his evidence, the plaintiff indicated the limit of his movement. This is also confirmed in the photographs taken by Mr Stapleton. The limitation of movement in his left index finger is related to his non-dominant hand. The use of his hand has not been fully compromised because he has adapted to using his thumb and middle finger for the gripping of smaller items.
41 The plaintiff also stated that he has loss of grip strength in the left hand as a result of his injury. The plaintiff, in his evidence, confirmed that he was able to use his middle finger and thumb as a gripping action for smaller items.[27]
[27]T21
42 The plaintiff gave evidence about his inability to take hold of coins if given in change by a shopkeeper. When cross-examined about this topic of taking money from a shopkeeper, the following exchange occurred:
“Q: If I give you some money, I’m a shopkeeper giving you change, you will know, I’ve got to be a bit careful here, and you might - - - ?---
A: Sometimes.
Q: So you might put your hand out like that, if it’s notes you might use the other fingers?---
A: Yes.
Q: You deal with it?---
A: Yes.”[28]
[28]T22, L21-26
43 The plaintiff stated that he did not like to lift very heavy items. He appropriately conceded in his evidence that if he could lift it by himself, he would do it, if not, he would ask somebody to help him.[29]
[29]T23, L16-20
44 In terms of the plaintiff’s lack of mobility in the use of his hand, I do not accept that it is of such significance to describe it as a very considerable consequence for him. I have observed the video-surveillance film of the plaintiff and in particular, his use of the hands to move furniture, including the two-seater couch, and the recovery of the tie-down ropes or tapes in his left hand. It was clear to me, from observing that video, that the plaintiff did not feel that he was unable to use his hand to perform those tasks.
Activities of daily living
45 The plaintiff maintained that he could not operate a lawnmower or mow the lawns at his own home. He also stated that he was unable to do any of the work in the kitchen including getting his own lunch. The plaintiff’s limitation in respect of operating the lawnmower was more to do with the vibration from the machine, rather than the manipulation of the steering of the lawnmower. His evidence is that his brother-in-law or his wife do the lawn mowing at the home. He also maintained that he could not prepare his own lunch.
46 I do not accept that these limitations on the plaintiff’s activities of daily living as he has described them, amount to consequences which could be considered “very considerable”. The plaintiff is able to maintain full-time employment at a factory with a mixture of work between “paperwork” and driving a forklift. I do not accept that the plaintiff would be unable to perform the minimal tasks required to prepare a simple meal, or indeed operate a lawnmower, given his ability to perform his work requirements.
Sport
47 The plaintiff deposes that he is unable to play soccer or continue with billiards and snooker as his sporting activities, due to the injury to his left index finger. In respect of the inability to play soccer, the plaintiff was cross-examined and the following evidence was given:
“Q: Is there any reason why you couldn’t still go to the club and have the company of the people that you - - - ?---
A: Because all my friends and cousins, group of people, we make like competition, so if I go there, just stay there, they are playing, they having good time so - - -
Q: So that is one thing that you can’t do. You can’t engage in that competition, it is not as good just going along to watch?---
A: I – I can’t play because I am no good at it now anyway.
Q: But again that is something that now that you are a married man you might not be able to do as much of as in the past?---
A: It’s better stay home with my wife.”[30]
[30]T28, L8-19
48 I note, by way of completeness, that in his history to Mr Stapleton on 5 April 2013, the plaintiff reported that his hobbies were soccer and swimming.
49 The other sporting activity that the plaintiff claimed was impacted on by his injury to his left finger was his inability to play billiards and snooker.[31] The plaintiff stated in his evidence that he was unable to form a bridge with his injured left hand.[32] The plaintiff honestly stated that he had never tried to use the bridge implement that is sometimes available at billiard parlours. In taking the full tenor of the plaintiff’s evidence on this issue, it became clear that he prefers to spend time with his wife rather than being at the billiard or snooker club.
[31]PCB 35
[32]T28
50 The plaintiff also said that his ability to use the play station, in particular the soccer game, was impacted on by the injury to his left finger. I accept that the finer movements with his left index finger are compromised as a result of this injury. I do not accept that the consequence of not being able to operate the play station to his fullest previous ability amounts to a significant consequence for the plaintiff.
Credit of the plaintiff
51 The defendant in this case did not mount a full attack on the credit of the plaintiff. The defendant showed DVD-surveillance film of the plaintiff which ran for a total of six minutes. The defendant conceded that the period of six minutes’ filming was the total amount of film surveillance arising from 19 hours of surveillance of the plaintiff. In short, it is a very short period of film for that length of surveillance.
52 The film showed the plaintiff smoking at the front of his premises. It appeared to be a cold day and that he was swapping a cigarette from his left to his right hand in a reasonably free manner. The hand that was not holding the cigarette immediately was placed in the front pocket of the “hoodie” jumper that the plaintiff was wearing. Whilst a small period of time was filmed with the plaintiff engaging in having a smoke at the front of his premises, it was clear that there was no obvious inhibition of the plaintiff in the use of his left hand to smoke or to put it in the pocket of his hoodie.
53 The more significant part of the filming related to the movement of furniture from the trailer. The plaintiff, although having in the alternative of other people to remove the two-seater couch from the trailer, actively engaged in it himself. There was no apparent restriction in the use of his hand. His evidence on this issue, when cross-examined, was that he had kept his left index finger in a protected out of the way manner. If that is so, and there is no reason to doubt that, the plaintiff was still able to fully use his left hand to perform the task of removing the furniture from the trailer and placing it on the ground. In short, there was no real limitation for the plaintiff’s use of his left hand. After the furniture had been removed from the trailer, the plaintiff used his left hand to gather up the tapes that had been restraining the furniture onto the trailer. He did not appear to be in any apparent restriction in his ability to pick up the tape with his left hand and did not appear to be doing so in a protective manner.
54 A Court has to be very careful when observing DVD-surveillance films with all the warnings that were set out by the Court of Appeal in Church v Echuca Regional Health.[33]I have taken into account all of those considerations when weighing up the credit of the plaintiff in this case.
[33](2008) 20 VR 566
55 I conclude that the plaintiff has been a reasonably frank and straightforward witness in this case. The video-surveillance film, however, does show that he can use his left hand in a reasonably unrestricted manner and is confirmation of what has been set out in the consequences section of these reasons for judgment.
Conclusion
56 I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury to his left index finger has occasioned him. I am required to determine where the facts of this particular case sit in a broad spectrum of cases. The test to be applied is whether the plaintiff’s pain and suffering consequences, when judged by a comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than significant or marked and as being at least very considerable.
57 I have taken into account in assessing the level of consequences for the plaintiff in respect of his injury, by also examining what capacities he has retained despite his injury.
58 I have taken into account the considerations set out in the cases of Haden Engineering Pty Ltd v McKinnon[34] and Sutton v Laminex Group Pty Ltd[35] to determine the impact of pain and the extent of it on the plaintiff in this case. Ultimately, the decision I am required to take is a value judgment in which matters of fact and degree are to be taken into account when making the assessment of the total consequences to the plaintiff arising from his injury to the left index finger.
[34](2010) 31 VR 1
[35][2011] VSCA 52
59 I conclude that taking into account the consequences as I have found them to be, that they are not of such a level to be properly described as being “very considerable”, either separately or individually, or collectively as a group. I am not satisfied that the plaintiff’s impairment as a result of the injury to his left index finger is more than “significant” or “marked” and properly described as being “at least very considerable”.
60 The application for serious injury certification by the plaintiff is dismissed.
61 I will hear the parties on the question of costs.
- - -
0
5
0