Osmond v Sandblasting International Pty Ltd
[2012] VCC 1720
•16 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04842
| DAVID OSMOND | Plaintiff |
| v | |
| SANDBLASTING INTERNATIONAL PTY LTD | First Defendant |
| and | |
| SCHWIETZER CONSTRUCTIONS PTY LTD | Second Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October and 1 November 2012 | |
DATE OF JUDGMENT: | 16 November 2012 | |
CASE MAY BE CITED AS: | Osmond v Sandblasting International Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1720 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering consequences of injury
Legislation Cited: Accident Compensation Act 1985, s134AB(16), (37) and (38)
Cases Cited: Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
Judgment: Leave granted to the plaintiff to bring a proceeding for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith | Slater & Gordon |
| For the Defendants | Mr C Miles | Herbert Geer |
HIS HONOUR:
1 David Osmond suffered an injury to his right hand in the course of his employment on or about 16 November 2009. Heavy equipment fell on his hand, causing fractures and crush injuries (“the incident”).
2 He seeks the leave of the Court to issue a proceeding to recover pain and suffering damages in respect of that injury.
3 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that the injury suffered by him is a “serious injury”.[1]
[1]Section 134AB(19)(a)
4 The term “serious injury” is defined in ss134AB(37), insofar as is relevant to this application, as a “permanent serious impairment or loss of a body function”. The body function the subject of this claim is that of the right hand.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33 at paragraphs [18] to [19]
6 The term “serious” is to be satisfied by reference to the consequences to Mr Osmond of any impairment or loss of function of his right hand with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of a body function.[3]
[3]Section 134AB(38)(b)
7 The Act provides that impairment or loss of a body function shall not be held to be “serious” for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being “more than “significant” or “marked”, and as being “at least very considerable”.[4]
[4]Section 134AB(38)(c)
8 The issue to be determined in this application is whether the consequences of Mr Osmond’s injury to his right hand and fingers can fairly be described as being more than significant or marked and as being at least very considerable. The defendants admit that Mr Osmond suffered fractures and a crushing injury to his left hand but deny that the consequences for him of that injury are at least very considerable.
9 Mr Osmond is currently aged fifty-four. He is right hand dominant.
10 He was educated up to Year 10. He has worked for nearly all of his adult life as a spray painter.
11 By way of a hobby, he enjoyed restoring cars. He estimates that over the course of his life, he has restored about three hundred to four hundred cars. This involved panel beating and spray painting work. He was fit and active around the home. He performed household repairs. He enjoyed dancing with his wife.
12 On 16 November 2009, in the course of his employment, he was attempting to move a pallet from underneath a bolster (part of rolling stock used for trains) which weighed over a tonne. The bolster fell from slings and his hand was trapped between it and the pallet.
13 He was taken immediately to Dandenong Hospital by ambulance. His right hand was swollen, with two open wounds over the carpal bones. Movement of all fingers was painful. X-rays showed a minimally displaced transverse fracture through the mid shaft of the proximal phalanx of the index finger and a hairline fracture of the proximal phalanx of the middle finger. He was admitted to the plastic surgery unit.
14 On the following day, he underwent surgery consisting of debridement and closure of the skin wounds. The extensor tendon of the index finger was shown to have been split, and was repaired. The fractured phalanx of the index finger was fixed with a metal plate and screws.[5]
[5]Plaintiff’s Court Book (“PCB”) 49
15 He saw his general practitioner, Dr Sullivan, regularly thereafter in respect of his hand. He suffered ongoing pain in the hand. He was taking six Panadeine Extra per day and one to two Fenac tablets each day in an attempt to reduce that pain.
16 He returned to work initially on modified duties and built up to resumption of his normal duties. He modified his work methods by using a spray gun in his left hand.
17 Photographs were tendered of Mr Osmond’s right hand.[6] In addition, during the hearing of the application, I viewed his hand. The photographs confirmed my observation that Mr Osmond’s right index finger is misshapen, in that it bows outwards quite noticeably. When asked to attempt to make a fist, he was virtually unable to flex the index finger at all. The tips of each of the other fingers of the right hand were able to be flexed so that the tips of them touched the palm of his hand.
[6]PCB 12-18
18 The medical evidence tendered was not contentious. Reports were tendered from the Dandenong Hospital;[7] Dr Sullivan (three reports);[8] Ms Dianne Hedin (occupational therapist);[9] Mr Felix Behan (hand surgeon)[10] and Mr Murray Stapleton (hand surgeon)[11] who had examined Mr Osmond at the request of the defendants’ WorkCover agent.
[7]PCB 49
[8]PCB 50-54
[9]PCB 55
[10]PCB 57
[11]PCB 75
19 It is not necessary for me to set out the contents of those reports. It is clear from them that Mr Osmond suffered the injuries referred to above. He is at risk of development of osteoarthritis of the right index finger in the future.[12] However, there is no evidence of any arthritic condition at the present time.
[12]Dr Sullivan at PCB 51 and 54; Mr Behan at PCB 63
20 Mr Stapleton noted the reduced range of movement and the reduced sensation in the index finger, as well as the ulnar deviation of it. He accepted Mr Osmond’s persisting complaints of pain, especially in cold weather, and considered that his recovery had reached maximum improvement. Mr Stapleton considered that Mr Osmond’s occupational and social activities had been profoundly affected by the injury.[13] Mr Behan appeared to agree entirely with the comments of Mr Stapleton.[14]
[13]PCB 77
[14]PCB 66
21 Mr Osmond believes that he has reduced power in his right hand and considers that it has been reduced by about one half. The occupational therapist, Ms Hedin, performed grip strength tests and concluded that the gross grip of his right hand measured 20 kilograms, whilst his left measured 34 kilograms. Normally, of course, one would expect the dominant hand to be considerably more powerful.
Consequences of the Injury
22 I accept Mr Osmond’s evidence that he has suffered a number of consequences of the injury to his right hand. These include:
(a)He suffers from constant pain in the hand. Symptoms of pain are worse when he uses the hand for any physical activity and also during colder weather. He experiences also a pins and needles sensation in the right index finger and soreness over the knuckles of the index, middle and ring fingers. In addition, he experiences intermittent spasms and cocking of the finger.
(b)The range of movement of the right index finger is greatly reduced. At the present time, he is barely able to flex the joints of that finger. He is quite unable to make a fist. Dr Sullivan’s view was that his range of movement had deteriorated in the past twelve months. She considered this was consistent with the development of arthritis in the joint of the finger, although this had not yet been confirmed by radiology.
(c)His right hand, particularly his right index finger, is extremely sensitive to any trauma.
(d)His right hand has a substantially reduced grip strength compared with that of his non-dominant left hand. His ability to lift, pull or push objects with his right hand is greatly restricted.
(e)He has difficulty using his right hand, and in particular his right index finger, for any fine manipulative tasks. Although strictly speaking his middle and ring fingers have a good range of movement, I am of the view that the vast majority of manipulative tasks involve the use of the index finger and I accept that most fine manipulative tasks would be beyond him as regards his right hand.
(f)He has been unable to continue with his hobby of car restoration. I accept his evidence that at the time of the incident, he was in the process of restoring a 1968 Pontiac which he had purchased in about 2005. I accept that he has been prevented by his injury from performing such restoration work. Such work, in my opinion, would involve considerable use of both his hands, especially that of his dominant hand. I accept that this was a hobby that Mr Osmond obtained a great deal of enjoyment from prior to the incident.
(g)For some years prior to the incident, Mr Osmond had used home gymnasium equipment in order promote general fitness. He is unable to lift weights with his right hand and this prevents him from doing many of the exercises that he had previously performed, such as bench pressing and other lifts involving him gripping a weight bar. He is unable to grip the weight bar strongly enough to perform those exercises since the incident.
(h)He is unable to perform various handyman tasks, especially those involving use of his right hand or manipulative tasks with it. He is unable to grip strongly to a ladder, thus preventing him from doing such tasks as clearing gutters at his home.
(i)He is unable to grip a screwdriver properly and hence unable to perform various household tasks such as removal of kitchen cupboards and the like, which he had been able to do without difficulty previously.
(j)He has difficulty driving longer distances. If he does drive for more than about two-and-a-half hours, his right hand aches considerably and he is unable to drive further.
(k)His sleep is affected. He is woken by pain, especially if he rolls onto his hand during the night.
(l)He has difficulty tying his shoelaces. He has difficulty opening a doorknob with his right hand as this causes increased pain. He has had to modify the way that he holds a pen in order to write. Fortunately, his occupation does not involve a large amount of writing but nevertheless his ability to write is substantially impaired.
(m) He now uses his left hand to complete many of his tasks at work. He has become protective of his right hand. As a consequence, his pace of work is reduced, although he has an understanding employer. He has had to forego overtime hours on occasions.
(n)An example of the sensitivity of his right hand is that if he was to use it to shake hands with another person, this causes him a great deal of pain. Accordingly, when he greets another person, he proffers his left hand for that purpose. He has, as a result, been given the nickname “Lefty”.
(o)The range of movement of his right index finger is grossly restricted.
(p)He feels it necessary to wear a glove on his right hand to reduce pain and prevent his hand from becoming cold.
(q)Although he has returned to work and managed to perform spray painting and other duties, I accept Mr Osmond’s evidence that he does perform his duties with difficulty and inconvenience. Further, it seems clear that the range of jobs now open to him is considerably reduced from the range open to him prior to the incident. His capacity for employment has been substantially impaired by the reduced movement, power and dexterity of his right index finger and hand. Whilst this impairment is not alleged to have resulted in loss of earnings to the extent required by s134AB in order to claim damages for such loss, it is still a matter which I can take into account in determining pain and suffering consequences of the injury for him.
23 No medical practitioner predicted any improvement in Mr Osmond’s condition. Mr Stapleton opined that he had reached maximum medical improvement.[15]
[15]PCB 77
24 Mr Behan agreed. He was of the view that Mr Osmond may require further surgery to remove the fixation hardware still in place. Such surgery would put him at risk of further complications. Nevertheless, he thought removal of it, together with manipulation, would be appropriate. His view was that removal of the pins and plate would be warranted as these have the potential to precipitate further problems with wound breakdown and potential infection. However, he did not suggest that the removal of that hardware would improve his current situation. Rather, he thought that it may prevent further deterioration.
25 At this stage, Mr Osmond is reluctant to undergo further surgery as such would inevitably involve him being required to take further time off work and he is concerned about losing his job.
26 Counsel for the defendants submitted that it was of significance that Mr Osmond had returned to work performing similar duties to those performed before the incident. Whilst a return to work is a matter to be taken into account, I do not consider that it is a decisive matter here. Rather, I consider that Mr Osmond had proven to be a stoical person who returned to work at the earliest opportunity and has been determined to remain in work if he possibly could. He should not be penalised for adopting that attitude.[16]
[16]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [13]; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260 at paragraph [3]
27 I consider Mr Osmond to be a reliable witness who made no attempt to exaggerate his condition.
28 Mr Osmond is likely to continue in considerable pain for the balance of his life. It is most unlikely that he will improve. To the contrary, Mr Behan and Mr Stapleton were of the view that he is at risk of developing osteoarthritic changes in the index finger. Dr Sullivan was of the view that there were may already be clinical signs of such changes given the deterioration in the range of movement of the index finger over the previous year.
29 In any event, regardless of the prospect of further deterioration, I consider that his current symptoms and the current consequences of the injury are such that they are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as more than significant or marked and as being at least very considerable.
Conclusion
30 For the reasons expressed above, I am satisfied that Mr Osmond has suffered a serious injury, as defined, in the course of his employment on or about 16 November 2009.
31 Accordingly, there will be leave pursuant to s134AB(16)(b) of the Act for Mr Osmond to bring proceedings for pain and suffering damages in respect of injuries suffered in the incident.
32 I shall hear the parties in respect of costs.
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