Patrono v Skyrider Tower Hire Pty Ltd and VWA
[2011] VCC 1208
•21 June 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05132
| RICARDO ANTHONY PATRONO | Plaintiff |
| v | |
| SKYRIDER TOWER HIRE PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 14 June 2011 |
| DATE OF JUDGMENT: | 21 June 2011 |
| CASE MAY BE CITED AS: | Patrono v Skyrider Tower Hire Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1208 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act – s.134AB(38)
Serious Injury application – Application in Respect of Pain and Suffering Only
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Jordon SC and | Slater & Gordon Ltd |
| Mr M Nightingale | ||
| For the Defendants | Mr P Elliott QC and | Herbert Geer |
| Mr I Gourlay | ||
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering consequences of an injury suffered by him in the course of his employment with the first defendant on 10 September 2007. The injury relied upon by the plaintiff is a crush injury which he sustained to his left hand and the relevant impairment of function is that of the left hand.
2 In the application, the plaintiff relies upon two affidavits sworn by him on 20 September 2010 and 2 June 2011 respectively. The plaintiff gave viva voce evidence in the proceeding and was cross-examined. The defendants rely upon an affidavit sworn on 14 June 2011 by Mr Michael Barnett, a director of the first defendant company. Otherwise the parties rely upon medical reports and other documents tendered by them.
The Plaintiff’s Affidavit Evidence
3 In his first affidavit, the plaintiff deposed as follows:
•
He was born on 20 October 1962 and commenced employment with the first defendant in February 2007. On 10 September 2007, whilst working in the course of his employment as a tree technician with the first defendant, he suffered a crushing injury to his left hand.
•
He underwent two surgical procedures in treatment of the injury to his left hand which were performed at the Geelong Hospital and following his discharge from the Hospital, he was referred to Ms Laura Shorney, a hand therapist, who supervised his rehabilitation.
•
Despite suffering from a swollen and painful hand, the plaintiff returned to employment with the first defendant late in September 2007 where he continued in casual employment until December 2007, at which time no further work was made available to him. He said that he subsequently obtained a labouring job at a concrete company where he worked for six or seven months before being retrenched; that he subsequently obtained labouring-type work with another concrete company before he was again retrenched; and that in approximately September 2009, he moved to Western Australia, where he was currently employed as a driver delivering gas cylinders.
• His work as a driver aggravated: “… the pain of my left hand injury. I need to work to pay the rent and to put food on the table. I do not have any skills for anything other than labouring work or truck driving, so I have had to return to what I know.”
• He employed: “… paracetamol/Codeine, as well as Endep. I take the medication on a daily basis. I also now attend Kelmscott Physiotherapy for ongoing hand therapy.”
4 As at 20 September 2010, the plaintiff described his symptoms in the following terms:
“At times I still have severe pain. The pain fluctuates in part depending on what I’ve done with my left hand. Basically physical activity with the hand causes pain.
I am now restricted in anything which requires the full use of my
left hand to lift, carry or grip things.
At times I still have severe pain in my left hand even with the
medication. The pain in my left hand often wakes me up.”
5 The plaintiff said that he had sold his motorcycle because he had been unable to properly operate the clutch with his left hand, that he had difficulty undertaking gardening and using a chainsaw and that whilst before he was injured he enjoyed playing the guitar, this activity was now restricted to him. He said that in the course of his work delivering gas bottles he suffered from increased pain and swelling in his hand and that generally at the end of a day’s work his hand was more painful.
6 In his second affidavit, the plaintiff deposed as follows:
•
His left hand was painful and much weaker than it was prior to his injury; that he continued to suffer from symptoms of stiffness in the hand, particularly in his fingers, and that his ability to grip, grasp and make a fist was diminished. He said that he had difficulty undertaking fine finger movements with his left hand; that whilst before his accident he regularly played the guitar three or four times a week “a couple of hours or more”, he now played only “on occasions but nowhere near as regularly and for nowhere near as long”. He said he missed the enjoyment and relaxation involved in this activity.
•
That he had worked as a tree technician for many years in Perth with a local council. He said that he enjoyed that work as it involved:
“… working out in the open, in a gang socialising with other workers and I enjoyed exercising the skills I had developed in this line of work.”
•
The activities involved in working as a tree technician were physically demanding and required the unrestricted use of both his hands. He said that he preferred working as a tree technician to -
“… sitting in a truck by oneself most days and driving from one
place to the other.”
• He described his current occupation which involved unloading full gas bottles, oxygen and other gases, as affecting his hand, such that it was: “… always far more painful at the end of the working day and working week. My hand is always worse pain-wise in the cold and there are frequent occasions when it is cold in the early morning when I start and the gas bottles are often cooled. Given I don’t have anything like the full use and strength of my left hand and I can’t use it as much, I am very reliant on my right hand. I often have a concern that I may suffer further injury with my inability to use my left to assist in the control of gas bottles I am moving or spinning.”
The Affidavit Material relied upon by the Defendants
7 In an affidavit sworn 14 June 2011, Mr Michael Barnett, a director of the first defendant company, states that upon his return to work following his accident, the plaintiff undertook normal duties; did not complain of difficulties undertaking his work; and that the plaintiff was able to perform a wide variety of duties including using a chainsaw, dragging tree branches and operating the chipping machine. Mr Barnett said that the decision not to offer the plaintiff further work:
“… had nothing to do with his injury or any restrictions the injury might
have had on his ability to perform his work”.
The Plaintiff’s Viva Voce Evidence
8 In evidence-in-chief, the plaintiff said that:
•
Upon returning to work following his injury, he made no complaints about difficulties he found in undertaking his work because he was worried about maintaining his job. When asked whether he was experiencing difficulty in carrying out his work, he responded:
“Well, I was still one and a half hands; I was still in pain, I still had
to work, I was working.”
The plaintiff said at that time he was still consulting Ms Shorney, his hand therapist, and also his general practitioner.
•
In cross-examination, the plaintiff said that Dr Cruickshank, his general practitioner, had given him a clearance to return to full duties in circumstances in which:
“I asked him to clear me so I could go back to work.”
•
Following his cessation of employment with the first defendant, the plaintiff had worked for Sovereign Concrete where he prepared concrete moulds, and upon being retrenched after approximately six months, he obtained another job with Ballarat Vibrated Concrete repairing concrete moulds for Telstra lids and manhole covers. He said that upon being retrenched from that employment, he returned to Perth.
•
Prior to coming to Victoria, the plaintiff said he had worked in the Parks and Gardens Department of the Bayswater Council in Perth for fifteen years. He described his work there as involving six months of gardening type duties and six months of pruning or lopping trees. He said that on returning to Perth after his injury, he obtained employment with the Shire of Melville where he engaged in general gardening duties. He said that in that work he worked as part of a team and worked outdoors, but that he had left that employment because the work which he was offered, which involved his present occupation in delivering gas cylinders, allowed him to earn more money. He said that in the course of his present job, he would handle gas cylinders, the dimensions of which ranged in height of approximately 1.5 metres to approximately 0.5 metre; that he was required to do a number of deliveries a day, generally between fourteen to fifteen, but up to a maximum of twenty-eight; that he worked five days a week, and would work overtime if it was available.
•
He had been referred to a physiotherapist in Western Australia who he continued to consult on a monthly basis. He said that he was receiving treatment which included:
“Radiotherapy, the loosening of the joints, the muscles – now I’m
having actual acupuncture with the needles.”
and that this treatment provided him with temporary relief.
• He was taking Codeine Forte, 500 milligrams, “… very regularly … I usually have two in the morning, sometimes I have two in the afternoon and before I go to bed sometimes it’s two more.”
•
On returning to Perth after his injury, he had applied for tree lopping work which he would have undertaken had he been successful in obtaining employment but “I had no luck”.
•
Before sustaining his injury his hobbies included motorcycle riding. He said that he had a motorcycle which he had pulled apart and fixed it but that he had discontinued riding motorcycles because he was unable to operate the clutch lever.
•
He said that he had established a relationship with a new partner; that he had access to his children, who are aged eleven and fourteen, on a fortnightly basis; that he would take them to the park, watch them play netball and other sporting activities, and that he enjoyed their companionship.
•
He said that he played the classical guitar and that this was one of his hobbies before his injury. He said that he could still play the guitar but “not as good as I used to … it’s hard but I give it a go but not as long as I used to”.
•
Before the accident, he did minor maintenance on his cars which he described as involving “fiddly bits, servicing, things like I was used to, change a filter … you know things like that and maybe an oil filter”. He said, however, he did not undertake major mechanical work on his motor vehicle.
9 In re-examination, the plaintiff said that:
•
He used to build motorcycle engines but that he could no longer undertake this activity because it required strength in both of his hands.
•
That at the end of a day’s work his hand was “painful, puffy, blotchy, pins and needles running down my forearm” (here he indicated the back of his hand and forearm). He described suffering from continuous pain in his hand and said that it locked up in the cold weather.
•
He would be unable to work as a tree technician because of the medication that he was taking but also because he was unable to manipulate a chainsaw, the use of which required significant strength in the left hand which took the weight of the chainsaw. He said a further factor in this inability involved the vibration associated with the use of the chainsaw. He said that he had applied for tree lopping work after his accident because “I was desperate. I needed work”.
•
That his monthly physiotherapy involved ultrasound therapy to try and loosen up his hand and free up the tightness and stiffness in his tendons. He said that in the last two or so years, his symptoms were:
A: “reoccurring (sic), it keeps coming back. I still wake up with
my hand stiff. I usually open it up like this.Q: You open it up yourself?--- A: Yeah. Q: So that you wake up, it’s in a claw, is it?--- A:
Yeah. It’s like a semi-claw position. It’s locked. I do that while I’m in the shower with lukewarm water to help to open it up.”
He continued:
“I get it going. I have to get it going because I need to use it but it
just responds only on certain things.”
• He had asked Dr Cruickshank to certify him as being fit to return to work for the first defendant because: “I wanted to go back to work for fear that I was going to lose my position. I needed to earn a decent wage so I could pay my maintenance and pay for my bills and my power, and I couldn’t do that on unemployment benefits, I just could not do it, not by myself.”
The Medical Evidence
10 In a report from Barwon Health dated 5 December 2008, Dr Paul Mestitz records that the plaintiff was admitted to the Geelong Hospital on 10 September 2007, having sustained a crush injury to his left hand. On admission, the plaintiff was taken to theatre where he underwent a carpal tunnel release; a division of the transverse carpal ligament; incision of the fascia overlying the abductor pollicis brevis of the left thumb, and incisions over the fascia and small bones of the left hand. These procedures were described as being necessary by reason of the diagnosis of possible compartment syndrome of the left hand.
11 On 12 September 2007, the plaintiff was returned to the operating theatre where, under general anaesthesia, the wounds in his left hand were washed out, debrided and closed.
12 In a report dated 18 December 2008, Mr David Cruickshank, the plaintiff’s treating general practitioner, opined that the plaintiff had suffered a crush injury to his left hand from which he had made a good recovery, the function of his hand being close to that before the injury:
“He has been able to do heavy work although it does cause flare
ups in his hand pain at times.Rick is able to work even including heavy work, although he does suffer pain and swelling in the hand if he overdoes it. … I have suggested to him that he would be better off doing work that puts less stress on his hand if he can get it … He has a near full capacity for his pre-injury work.”
13 In a series of reports to Dr Cruickshank, Ms Laura Shorney the plaintiff’s treating hand therapist commented:
•
As at 22 October 2007; that the plaintiff had made excellent progress; whilst his scars were quite tender this was slowly improving; that the plaintiff had returned to full duties but was “just taking it easy and doing what he is able to do”.
•
On 19 November 2007; that the plaintiff’s grip strength had increased to 37 kilograms but that his hand was stiff and slow with somewhat impaired coordination; that the plaintiff continued to suffer from sensory problems in the distribution of the superficial radial nerve, together with tingling; that the plaintiff was increasing his work duties successfully and was employing an anti-vibration glove to wear with the use of a chainsaw.
•
As at 8 January 2008; that the plaintiff was complaining of the presence of pain and annoying sensations in his hand; that the plaintiff’s grip strength had improved but was still weak compared with his right hand; and that whilst the plaintiff had done very well considering the severity of his injury, it was still hoped that with further scar mobilisation that his nerve symptoms would diminish.
•
As at 25 March 2008; that in his employment with a concrete company, the plaintiff was tolerating this work, but was very careful not to overuse the left hand with heavy or impact sort of work as much as possible.
•
As at 1 July 2008, that the plaintiff’s grip strength had increased to 44 kilograms and that there had been other improvements in his hand with:
“… less tenderness in the carpal tunnel areas, less tingling in the dorsum of his fingers and more tolerance to touch on the dorsum of the hand. There is still a somewhat unpleasant sensation to touch on the dorsum of the hand.
Rick also reports pain in his left hand with heavier activities and an increase in oedema on the dorsum of the hand with overuse. This settles within a couple of days.”
14 In a report dated 19 January 2009, Ms Shorney, describes the plaintiff’s injury to his left hand as being very significant involving severe oedema, loss of motion and scarring. She said that when the plaintiff first presented he had lost approximately fifty per cent of the motion in his MCP joints and that having undergone treatment, including heat massage, active and passive exercising, ultrasound and scar mobilisation, the plaintiff progressed such that by 22 October 2007, he had achieved 30 kilograms of grip strength in his hand. She described the plaintiff as suffering allodynia secondary to nerve damage which manifested itself as a very unpleasant tingling in his hand; that having regard to the plaintiff’s keenness to return to work as soon as possible, he had been provided with an anti-vibratory glove to minimise the discomfort of his nerve damage, and opined:
“While Rick’s injured hand has quite good strength, it does not have good endurance to heavy tasks. His grip strength peaked at 47 kilograms but on many of his visits [he] could not grip more than in the high thirties due to discomfort in his hand.”
15 In a medical report dated 30 April 2010, Dr Zaw Win, the plaintiff’s general practitioner in Perth, reported that the plaintiff presented to him with a flare-up of pain and stiffness associated with an old crush injury to his left hand and that generally the prognosis with respect to the flare-up was good.
16 In a further report dated 11 May 2011, Dr Win opined that the plaintiff had made a reasonably good recovery from his injury; that his hand movements were now near normal; that his ability to grip was diminished; that he suffers, and will continue to suffer from pain in cold weather or pain associated with overuse of his hand and that his condition had stabilised.
17 On 22 October 2010, Katie Shaughnessy, physiotherapist, reported to Dr Win that she had administered treatment to the plaintiff involving ultrasound therapy, mobilisation of the carpal, metacarpal and inter-phalangeal joints and strengthening exercises with the use of sand and that the plaintiff reported significant pain relief and decreased stiffness with this treatment.
18 In a medical report dated 31 August 2010, Mr W F Huffam opined that the plaintiff:
• Presented with: “… relatively mild loss of movement of all digits of the hand and
symptoms and signs to indicate residual carpal tunnel syndrome.”
•
That the plaintiff was capable of performing most duties but heavy duties involving the left hand can cause some discomfort.
•
That the plaintiff suffered from residual stiffness in the left hand and symptoms of medial nerve and carpal tunnel involvement.
•
That the plaintiff’s condition had stabilised; that he presented with a mild limitation of capacity for work generally; that his complaint that he was unable to ride a motorcycle was a valid complaint.
19 In a report dated 6 June 2011, Dr Peter Blombery opined:
• That the plaintiff’s condition had stabilised. • That the plaintiff’s left hand injury restricted him from engaging in employment which involved heavy lifting or fine movements of the left hand and that this incapacity would continue for the foreseeable future.
20 In a report dated 2 June 2009, Mr David Kotzman opined that the plaintiff presented with an eight per cent impairment of function of his left thumb; a thirty-one percent impairment of function of his left index finger; a twenty per cent impairment of function of his left middle finger; a thirty-one per cent impairment of function of his left ring finger; and a forty-two per cent impairment of function of his left little finger.
21 In a report dated 12 January 2011, Mr Barry Slinger opined that the plaintiff’s situation was permanent; that he presented with restricted movement in the joints of his fingers, and that it was sensible that the plaintiff:
“… avoid provocation as he is doing, and using his right hand predominantly for the major of tasks, particularly those involving heavy manual labour.”
Findings
22 Given the passage of time since the plaintiff’s injury and the general tenor of the medical evidence which describes the plaintiff’s condition as being stabilised I am satisfied that the problems which the plaintiff presently experiences with his left hand are likely to endure for the foreseeable future.
23 When account is taken of the plaintiff’s rapid return to unrestricted duties with the first defendant at a time when Ms Shorney was describing the plaintiff as presenting with;
Tenderness with weight bearing; sensory problems in the distribution
of the superficial radial nerve together with tingling;; and a hand which
was stiff and slow with somewhat impaired coordination; [1]
and further as complaining of
the presence of pain and annoying sensations in his hand; that the
plaintiff’s grip strength had improved but was still weak compared with
his right hand; [2][1] See the report by Ms Shorney of 9 November 2007.
[2] See the report by Ms Shorney of 8 January 2008.
I am satisfied that the plaintiff did return to work at a time at which his duties were likely to have been causing him both discomfort and difficulty; and that the first defendant’s failure to appreciate that fact[3] attests to the plaintiff’s stoicism rather than the inconsequential nature of his injury.
[3] In making this finding I am express no criticism of the attitude of the first defendant.
24 Although a considerable issue arises as to the plaintiff’s capacity to engage in full time employment as a tree technician I am satisfied given:
• the plaintiff’s lack of stamina in grip strength as described by Ms Shorney; • the opinion of Dr David Cruickshank that the plaintiff should seek work which reduced the stress placed on his hand; • the medical opinion which describes the plaintiff as being unfit for heavy manual labour; that the plaintiff’s injury most probably precludes him from engaging in full
time employment as a tree technician. [4][4] In this respect I accept the plaintiff’s evidence that he had applied for tree lopping work after his accident really by reason of financial necessity
25 Whilst I accept the plaintiff’s evidence that this represents a considerable loss to him having regard to his long history of employment in that field of work and his obvious expertise in the use of a chain saw (which is evidenced by the plaintiff’s numerous certificates which comprise Exhibit A); it is clear that the injury to the plaintiff’s non dominant left hand does not preclude him from engaging in a wide range of physical work such as that involved in his employment with the Shire of Melville. I am satisfied however:
•
That by reason of the presence of the restriction which his injury places upon the range of work for which he is now suited, the plaintiff has been forced to choose employment from which he derives less enjoyment than that associated with the outdoor work which he had undertaken for many years before his injury and also which he performed with the Shire of Melville, in order to allow him to earn a wage in the vicinity of that which was available to him in his pre-accident employment with the first defendant.
•
That the duties performed in the plaintiff’s present employment aggravate the condition of his hand on a daily basis and that given the plaintiff’s history of manual work any occupation in which he is employed in the future is likely to have a similar effect.
26 I am further satisfied that the injury to the plaintiff’s hand affects him in the manner described by him in his evidence in that:
• It is associated with constant pain of varying, but on occasion, considerable intensity. • It requires him to make regular use of prescription strength medication to manage his pain. • It continues to require him to make use of regular physiotherapy in order to maintain his present levels of hand function and will in the future at a minimum require him to employ the “techniques” referred to by Ms Shaughnessy in her report “ to manage his pain and movement”[5].
•
It restricts him in his ability to play the guitar; precludes him from engaging in his pastime of maintaining and riding his motor cycle and precludes him from engaging in any activity which requires him to employ his left hand to undertake fine manipulative movements or which involve heavy manual labour.
[5] PCB 47
27 I am also satisfied that the plaintiff’s description of his symptoms and disabilities is reliable by reason of his tendency towards stoicism.
28 Further, I am of the opinion that the plaintiff’s description of the contracture in his hand which occurs during the night and the process which he has to employ to restore function in his hand each morning represents in itself a consequence of very considerable magnitude .
29 In deciding the issue which arises in this case namely, whether the plaintiff’s pain and suffering consequences, 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, I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury has occasioned to him and determine where the facts of this case sit in the broad spectrum of cases. The task which I am required to undertake has been described as involving “a value judgment, in which matters of fact and degree, and of impression, are operative,”[6] and one in which I am required to take into account –
“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to some extent, by what is retained.”[7]
[6] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
[7] Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
30 As was effectively conceded by Mr Jordan SC who appeared with Mr Nightingale for the plaintiff, this case is one which falls at the borderline of those cases which may be judged as satisfying the criteria imposed by the Act. Undertaking the weighing exercise which I am required to employ, and focussing upon the effect of his injuries upon the plaintiff with respect to work, pain and lifestyle, and assessing those effects by comparison with other cases in the range of possible impairments or losses of body function however, I am satisfied that the impact of the plaintiff’s symptoms upon his life is such that it is appropriate to describe his impairment as being more than significant or marked and as being at least very considerable.
31 In these circumstances, I am satisfied that the plaintiff’s impairment meets the high threshold test which is imposed by s.134AB(38) of the Act and accordingly, that the plaintiff has made out his case as to his entitlement to the order sought in this proceeding.
32 I will hear the parties as to the order which I should make in the proceeding and also upon the issue of costs.
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