Nguyen v Natures' Gift Australia Pty Ltd
[2018] VCC 1960
•30 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-03501
| MINH TRI NGUYEN | Plaintiff |
| v | |
| NATURE’S GIFT AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 November 2018 | |
DATE OF JUDGMENT: | 30 November 2018 | |
CASE MAY BE CITED AS: | Nguyen v Nature’s Gift Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1960 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – sections 325 and 335 – Reliance upon paragraphs (a) and (b) of the definition – traumatic amputation of most of the distal phalanx of the middle finger of the plaintiff’s right hand when plaintiff cleaning machine – whether burden of proof discharged – factors to be considered
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Magee QC with Ms M Tait | Adviceline Injury Lawyers |
| For the Defendant | Ms G-J Cooper | IDP Lawyers |
HIS HONOUR:
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 number of issues involved is quite small. There is no argument but that the plaintiff suffered a traumatic injury to the middle finger of his right hand when cleaning a machine in the course of his employment on 11 September 2014. This shall hereinafter be referred to as “the accident”. The end result was the amputation of most of the distal phalanx of the right middle finger. The plaintiff is right-handed. This shall hereinafter be referred to as “the injury”.
2 The plaintiff is seeking leave to pursue damages in respect of pain and suffering only. In so doing, he relies on paragraphs (a) and (b) of the definition of “serious injury” contained in s325 of the Act. As was said by counsel at the outset, matters such as the occurrence of the accident, the fact that it is compensable and the like are all admitted. In openings, senior counsel for the plaintiff stated that the only issue before the Court was range, and counsel for the defendant stated that it was “a very straightforward range case” – see Transcript (hereinafter referred to as “T”) 1 and 15. In other words, the only issue of concern is whether the consequences of injury are sufficient to satisfy the statutory test.
3 Ms A Magee QC with Ms M Tait of counsel appeared on behalf of the plaintiff. Ms G-J Cooper of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, with the assistance of an interpreter. Such evidence included the adoption of three affidavits as being true and correct. He was cross-examined. In addition, along with counsel, I inspected his right hand and middle finger. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
Factual background
(a) The plaintiff’s background, training and employment
4 The plaintiff is aged 41 years, he having been born in Vietnam in 1977. He was educated to Year 12 level and then completed at university two years of a three-year course relating to marketing. He then worked as a salesman, later managed construction staff who paved roads and then opened a grocery store. He migrated to Australia in approximately 2008. Here he has worked as a meat boner and labourer, a strawberry picker, an asparagus sorter and a waiter. He commenced working for the defendant in approximately 2011 as a casual worker, before ultimately being offered a permanent full-time position as a process worker in 2012. He is a married man with three children.
(b) The plaintiff as a witness
5 I have no difficulty in accepting the plaintiff as a witness of truth. There was no attack upon his credit in cross-examination. I accept that he gave honest and accurate evidence. If anything, he seemed to me to downplay the injury and its effects and to adopt a stoical approach.
(c) The state of the plaintiff’s health prior to the injury
6 There is nothing of relevance in the plaintiff’s medical history. It is not suggested that he had previously suffered any injury to his dominant right hand, or, for that matter, to either hand. He was in good health.
(d) The injury, its treatment and diagnosis
7 Effectively, on 11 September 2014, most of the distal phalanx of the plaintiff’s right middle finger was cut off when he was attempting to clean some meat out of what could be described as a mincing machine. The phalanx was so amputated just above the distal interphalangeal joint. He was conveyed to the Emergency Department at Monash Medical Centre. The amputated part of the finger had been preserved, but it was not re-attached. He was kept at Monash Medical Centre overnight and transferred the next day to Dandenong Hospital. The wound on his finger was stitched and some x-rays were performed. He was kept for a couple of days in Dandenong Hospital, provided with medication and referred to a hand therapist. The plaintiff returned to Dandenong Hospital on a few occasions in late 2014 for check-ups. The finger was healing in a satisfactory fashion and he was discharged.
8 The plaintiff had been referred from Dandenong Hospital to Ms Diane Hedin, hand therapist, whom he believes he saw on approximately three occasions in October 2014. A brief report from Ms Hedin indicates that the plaintiff regained full range of movement at the proximal interphalangeal joint, but the distal interphalangeal joint range of movement was limited by swelling. The graft to the tip of the finger had not taken, but was left in place as a dressing. Ms Hedin noted that the plaintiff was to be reviewed at the Dandenong Hospital at the end of October 2014. As he had progressed well in regaining the range of movement of the finger, further appointments for hand therapy were not made. Accordingly, it would seem that Ms Hedin has not seen or treated the plaintiff since the end of October 2014.
9 The plaintiff had originally seen an alternative general practitioner because of his inability to see his regular doctor. However, as at March 2015, he commenced attendance upon his regular general practitioner, Dr Dang Phan, in Springvale. Dr Phan has provided two quite detailed medical reports. Dr Phan first saw the plaintiff on 25 March 2015. The wound was healing. The plaintiff claimed to have slight tenderness on the remainder of the right middle finger and had already returned to his normal duties. It would appear that the plaintiff had someone to assist him for a while but, certainly by mid-2015, was working full‑time hours virtually without assistance – see T19. He continued working with the defendant on a full-time basis until December 2015. At that time, apparently the defendant was sold and the factory moved to Sydney.
10 Dr Phan saw the plaintiff on 2 February 2016 and 21 March of that year. The plaintiff had developed a tender cystic lesion on the graft site as at 21 March 2016. It was drained and dressing applied. He was reviewed on 16 May 2016. He complained of some pain and discomfort on the end of the finger in cold weather and felt stretching discomfort on making a fist. On 20 July 2016 the plaintiff was complaining of pain, swelling and redness of the end of the finger and was not able to use his hand because of the associated pain. He had recently started employment with an air-conditioner company and was required to use a hammer. Because of his finger pain, he was not able to cope with this. Examination revealed the amputated tip with scarring and a residual scab. There was a red sensitive area at the tip, along with mild swelling and stiffness. The plaintiff could make a fist, but with some stretching discomfort and pain. Dr Phan raised the prospect of the plaintiff possibly requiring further surgery and referred him to Mr Stephen Tham for opinion and management.
11 Dr Phan reported again to the plaintiff’s solicitor on 4 December 2017. Dr Phan referred to the fact that the injury had been complicated by graft failure, nail spike, recurrent cystic formation and infections. On 7 November 2016, the plaintiff had undergone reconstruction performed by Associate Professor James Leong, to whose reports I shall refer shortly. The plaintiff had recurrent cystic formation and infection again on 25 July 2017. He was again referred to Associate Professor Leong and had some further surgery. The plaintiff saw Dr Phan again on 21 November 2017. This was one to two months after the later surgery. He had a tight discomfort feeling on the tip of the amputated finger and complained of some pain on tapping and vibration while mowing. He had no problems in relation to lifting and his sleep was unaffected. He was maintaining regular exercise of the hand and took Panadol on a required basis for any discomfort (the plaintiff’s evidence was that he takes Panadol on average about three times a month). In evidence, the plaintiff also referred to the fact that he takes more tablets in the winter – see T27.
12 Returning to the report of 4 December 2017 of Dr Phan, he noted that the plaintiff had lost his job on 13 November 2016 and was currently unemployed. Examination revealed a long scar on the tip of the amputated right middle finger. There was no swelling or redness. There was very mild tenderness at the tip only. His range of movement in relation to the proximal interphalangeal joint was normal. Dr Phan advised him to continue with home exercises and to take Panadol on a required basis. In relation to prognosis, Dr Phan stated that the plaintiff had mild residual discomfort on the tip of the injured finger. In his opinion, the long-term prognosis was good and hopefully there would be no further problem with nail spike/cystic formation or infection.
13 Associate Professor James Leong has provided two reports to the plaintiff’s solicitor. The earlier of these is dated 8 May 2017. It is noted in that report that, following surgery, the plaintiff had progressed quite well, but had developed nail spikes on the tip of the finger and suffered from recurrent infection. On 7 November 2016, a nail ablation was performed under intravenous sedation and local anaesthetic. The entire nail bed was excised and curetted and a small ostectomy was performed on the distal phalanx. The defect was then closed with a local flap. Following this surgery, the plaintiff progressed well and, as at the date of this report, Associate Professor Leong had not seen him since the end of November 2016. He noted that, following a successful operation, the plaintiff should be able to do prolonged driving, prolonged use of keyboards and repetitive dishwashing. It was difficult to comment on whether he could lift more than 5 kilograms or 10 kilograms on a repetitive basis, but the plaintiff should be able to reach and pick up objects with his right hand on such a basis.
14 Associate Professor Leong reported again on 13 November 2017. Further surgery had been performed on 28 September 2017 in order to excise a recalcitrant nail spike from the finger. This was done under intravenous sedation and local anaesthetic. The nail spike was isolated, excised and the defect was closed with a local flap. The healing had been uncomplicated and the plaintiff was doing well. Associate Professor Leong observed that hopefully the troublesome nail spike would not come back, but the end result would not be known for 6 to 12 months. It would appear from the clinical notes of Associate Professor Leong that he last saw the plaintiff on 1 May 2018. Associate Professor Leong’s notes “all good pain-free not at work”. When cross-examined concerning this, the plaintiff agreed that he had said that, but pointed out that, during that time, he was not working or using his finger a lot. He had had a “good rest” and that was why it was “all good” – see T28 and 29. I might add that Associate Professor Leong had made similar notes when he saw the plaintiff on 31 January 2018, along with the additional words “happy tip stable”.
15 The plaintiff has also been seen for medico-legal purposes. Associate Professor Felix Behan, who specialises in plastic and reconstructive hand surgery, examined the plaintiff at the request of his solicitor on 4 June 2018, reporting two days later. Associate Professor Behan also took some coloured photographs of the plaintiff’s right hand from different angles. As stated, counsel and myself inspected the plaintiff’s right hand and it can be said that the photographs taken by Associate Professor Behan are consistent with the current appearance of the hand and the middle finger in particular. The history taken by him was essentially what has been set out above.
16 Associate Professor Behan noted that the tip of the finger in question is still painful and affects the plaintiff’s working ability on his dominant side. This prevents him from using heavy industrial tools such as hammers. However, the plaintiff’s grip strength is sound. He continues to have paresthetic irritation in the vicinity of the tip. The 2 centimetre loss of distal phalanx does affect the plaintiff’s grip integrity and small objects may fall from his grip. The plaintiff’s only complaint in relation to social aspects of the injury was that he was not able to play badminton anymore. I should add that this would not appear to be entirely accurate. The plaintiff is unable to play basketball with his children, but does still play badminton, although on occasions and with some difficulty. In his affidavit of 29 October 2018, the plaintiff has sworn that he does not play basketball with his children anymore, but he does occasionally play badminton which is not as enjoyable as it used to be because of difficulties holding onto the racquet and the pain which can be caused.
17 Associate Professor Behan expressed the view that the plaintiff’s capacity in relation to heavy mechanical work was now limited, referring, as an example, to the use of a hammer. He described the plaintiff as having a mildly deficient right-hand grip, which limits him for future work potential and he is better suited to doing singlehanded manual activity. He regarded the plaintiff’s injury as having stabilised, whilst also stating that the possibility of some further procedure, if the fingertip should break down, could not totally be excluded. In the view of Associate Professor Behan, the plaintiff has some disability from an industrial loss point of view. He considered that the tender tip of the plaintiff’s finger with paraesthesia and neural deficiency would be permanent and this would prevent him from using heavy manual instruments, such as hammers. In relation to the prospect of any further surgery, whilst stating it was impossible to forecast, Associate Professor Behan stated that the likelihood was less, given that the x-ray of 4 June 2018 indicated that no specific abnormality was detected.
18 The defendant had the plaintiff examined by Mr Murray Stapleton, plastic and hand surgeon, on 18 November 2015. His report was accompanied by three colour photographs, which accurately represent the appearance of the plaintiff’s right hand and middle finger. Given that Mr Stapleton saw the plaintiff prior to the nail spike removals of 7 November 2016 and 28 September 2017, his report has been largely overtaken by events. Indeed, quite properly, in her closing address Ms Cooper stated that Mr Stapleton’s report was out of date, of fairly limited assistance and she did not propose to take me through it – see T36. In the circumstances, I shall not deal with it further.
19 The diagnosis is a simple one. It is one of traumatic amputation of most of the distal phalanx of the right middle finger. As discussed, after the initial treatment there has been the necessity for further surgical procedures to remove nail spikes and deal with infection. Whilst the possibility of some further infection cannot be totally excluded, clearly the most recent radiology would indicate that this risk and the need for further surgery has lessened.
20 I am satisfied that the consequences of the injury are permanent within the meaning of the Act, in that they will persist for and through the foreseeable future. I note that, whilst Associate Professor Behan commented upon the lessening likelihood of further surgery and whilst he did not exclude the possibility of further fingertip breakdowns, he was prepared to make an impairment evaluation pursuant to AMA Guides, an ingredient of which is permanence.
21 Whilst, pursuant to s325(2)(h) of the Act, psychological or psychiatric consequences are not to be taken into account, there is no indication that any of a substantial nature exist in the present case. That is not to say that what occurred did not cause the plaintiff substantial distress. He took some antidepressant medication. He also spoke to his doctor about a referral to a psychologist or psychiatrist, but, as he has sworn in his affidavit of 21 March 2017, his symptoms stabilised and this did not happen. Any permanent psychiatric or psychological consequences seem to be limited.
22 To state the obvious, the injury sustained is not in the nature of an aggravation of a pre-existing condition and there is no evidence that it impacted upon any such condition.
Other developments since the injury
23 As stated, the plaintiff returned to work with the defendant, initially on restricted duties, but ultimately as a full-time employee. He was forced to use both hands for certain tasks which previously were performed solely by using his dominant right hand. In relation to the manner in which he was ultimately managing his work duties by the middle of 2015, the plaintiff gave evidence at T19-20 as follows:
“I was on my own. I was working on my own then, and I was nearly back to my normal self.” – see T19-20
24 When that work with the defendant ceased because of the sale of the business and the transfer to Sydney, the plaintiff’s work with the defendant ceased. He admitted quite openly that, if the factory had not been sold, he would have continued to work there – see T21.
25 In mid-2016, the plaintiff obtained work in a steel factory, where he was required to use a hammer more frequently. It was at about this time that the finger became infected. The plaintiff took painkillers, but continued working. Ultimately, he ceased work at the steel factory in late 2016 and I accept that this was because of pain in the relevant finger and that work of this nature is beyond his capacity.
26 At a date which is not entirely clear, but which was in 2017, the plaintiff obtained some part-time work at a chocolate factory. This was before the surgery in September 2017. Apparently the plaintiff worked shifts as required and this might have been one or two days a week. The plaintiff found that this work caused him a lot of pain and believes it is work that he could not have performed regularly. He stopped performing that work because it was no longer offered to him.
27 More recently, and in approximately September of this year, the plaintiff helped a friend who works as a handyman, performing home improvements. This was heavy work, involving, amongst other things, the use of a hammer. The plaintiff found this to be particularly painful. He took Panadol at the end of the day and rested his right hand for several days thereafter. He only managed to do the work for one day because of the pain in his finger.
28 The plaintiff has not engaged in any other work. Apparently he has been looking after the children whilst his wife works. However, he has taken steps in the hope of obtaining further employment. Comparatively recently, he has obtained a Heavy Vehicle Driver Licence and is doing some further training in that regard. He has also obtained his “white card”, which apparently is to do with a safety course in relation to working on construction sites. He has also been following other drivers to their worksites in order to observe what happens and mentioned railway building works in this regard. He is apparently endeavouring to obtain another certificate or certificates.
Ruling
(i)Impairment or loss of a body function – paragraph (a) of the definition – pain and suffering
29 I shall deal firstly with the application insofar as reliance is placed upon paragraph (a) of the definition. I find that the plaintiff has discharged the burden of proof.
30 I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(a) The amputation injury is to the distal phalanx on the plaintiff’s leading finger on his dominant hand. It is the major and longest finger on the hand which the plaintiff uses the most. The absence of most of the distal phalanx and the sensitivity of the stump that remains is something that will affect many aspects of his everyday life. The plaintiff has sworn as to how, in that everyday life, contact with the tip of the finger is painful. He has referred to such simple things as cutting a meal with a knife, holding a racquet whilst playing badminton with his children, the fact that there is pain in the tip of his finger whenever he presses on it and having a sharp, deep pain at the end of his finger most days.
Given the finger that is involved, it is easy to imagine the difficulty involved in such simple tasks as extracting something from a fob pocket, shaking hands, using cutlery and the like. Indeed, the plaintiff can no longer use chopsticks, which is his traditional manner of eating. The more intense pain suffered on cold days is also to be borne in mind. In short, the loss of this particular joint of this particular finger and the sensitive nature of the stump are matters of importance. The interference with everyday activities is both understandable and of major magnitude.
(b) The plaintiff has undergone three surgical procedures. That is some indication of the level of pain and discomfort which he has suffered. After the first, he required approximately two to three months off work and then worked in a fashion where he rarely used his right hand and tried to undertake most tasks with his left hand. Even when he was able to return to his work with less assistance from co-workers, he had days where he was in too much pain and took sick leave. Even then, he found that he could not grip properly with his right hand and that, if too much pressure was applied, he was in a lot of pain. He was also very tired at the end of a shift.
Ultimately, he required the second surgical intervention and then, in September 2017, the further surgery. Whilst I appreciate that impairment or loss of a body function is to be looked at on a permanent basis, there seems to me to be little doubt but that what has been suffered must also be considered. That the plaintiff has already undergone three surgical procedures to a sensitive part of the body is some indication of the pain which he has already suffered.
(c) The plaintiff impressed me as a stoic. He certainly does not complain to excess, given what he has been through, and appears to be quite determined to get on with his life. As was said by Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69:
“The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain.”
In making observations such as this, Maxwell P was approving what had been said by Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260.
It seems clear to me that the plaintiff has adopted a stoical approach to what is a very nasty injury and to the consequences thereof.
(d) The work which the plaintiff has undertaken in this country prior to suffering the injury has been manual work. I appreciate that this is not an application in which leave is sought in relation to loss of earning capacity. Nevertheless, the impact and consequences of an injury such as this upon the everyday work activities to which the plaintiff was accustomed is something to which attention can be paid.
Since arriving in this country in 2008, the plaintiff has worked as a meat boner and labourer; as a strawberry picker; as a worker engaged in farm packing and sorting asparagus; and as a waiter. He then worked for the defendant as a process worker placing meat into machines, mixing ingredients, cleaning up and the like. In other words, his duties have involved manual labour. Such duties now have the potential of causing him considerable pain.
Before his employment with the defendant ceased, he was taking extra sick leave and was using two hands to perform tasks which previously required only one. He could not work properly with his right hand and, if he applied too much pressure, was in a lot of pain. His attempt to work in a steel factory, performing tasks such as using a hammer and carrying large sheets of steel, was a failure. His work at the chocolate factory was part-time and caused him considerable pain. That job ceased. An attempt at assisting a handyman and doing such things as using a hammer lasted only one day.
Whilst he is doing his best to remain in employment and obtain work as a truck driver, various avenues of work, including those in which he had engaged, are now closed off to him. That this is so emphasises the importance of the phalanx which he has lost from the leading digit on his dominant hand, along with the pain and suffering which he has endured when attempting to perform the pre-injury tasks to which he was accustomed.
(e) Associate Professor Behan specialises in matters to do with the hand. He has effectively said that the plaintiff’s future employment will be restricted to a single upper limb function and that the restrictions in relation to social, domestic and recreational activities have had “a severe effect or curtailment on a pleasant lifestyle existence”. He also referred to the surgery which the plaintiff has undergone as being “reconstructions … complicated by a poor operative outcome”. I accept these observations of Associate Professor Behan.
(f) One of the observations of Associate Professor Behan reminds me to make the following observation. The plaintiff has had to endure three surgical procedures with, effectively, disappointing outcomes. Whilst there has been some improvement in his condition, he is still left with a number of problems. The pain, setbacks and consequences which he has suffered in this regard are not to be underestimated.
(g) There has also been very substantial interference with the plaintiff’s everyday life. He can no longer play basketball with his children. He is very limited in relation to playing badminton with them. He cannot use chopsticks, which he would much prefer to do. He has difficulty gripping small objects with his dominant hand and frequently drops them. He has problems with tasks such as lawn mowing. He struggles to do as simple a thing as using a pen and pencil properly. Using a knife can be difficult. He is the principal carer for his youngest child, who is aged only two years. When playing with that child, he is very worried about knocking his finger.
(h) In short, this is an injury the impact of which is felt in many activities of everyday life, from the workplace to domestic and family activities. The plaintiff is both a stoic and a reliable witness. I accept his evidence. The loss of this important phalanx from the leading finger on the plaintiff’s dominant hand, apart from the initial pain and suffering and the need to undergo three bouts of surgery, has produced pain and suffering consequences which satisfy the statutory test. They are more than significant or marked and are at least very considerable.
31 Thus, the plaintiff has satisfied the requirements of part (a) of the definition.
(ii)Permanent serious disfigurement – paragraph (b) of the definition
32 As I have found in favour of the plaintiff in relation to his application insofar as it relies on paragraph (a) of the definition, there is no need for me to turn to paragraph (b). However, I am of the view that the plaintiff would also have discharged the burden of proof in this regard. I had the opportunity of viewing the plaintiff’s hands. The loss of most of the distal phalanx of the middle finger of the right hand is quite evident and can be seen from the middle distance.
33 Despite being something of a stoic, the plaintiff has sworn that he feels embarrassed about the way that the finger looks, although he is getting used to it. However, he is still self-conscious about it, particularly when meeting new people. As earlier stated, the missing phalanx is at the distal end of the longest finger. Such things as shaking hands and the use of dining equipment would almost automatically bring it to attention, if it had not already been seen. This is something which the plaintiff will have to live with for the rest of his life, in social situations and as his children grow up, are educated and the like.
34 As stated, I do not need to make a specific finding in relation to paragraph (b), but, were it required, and having viewed the disfigurement, I would be of the view that it is serious. Of course, its permanence is not an issue.
Conclusion
35 The plaintiff is successful. He has discharged the burden of proof. I shall hear the parties as to any ancillary orders that are required.
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