Peterse v Cantire Investments Pty Ltd
[2013] VCC 826
•25 June 2013
| 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-12-03166
| KEITH DONALD PETERSE | Plaintiff |
| v | |
| CANTIRE INVESTMENTS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 29 April 2013 | |
DATE OF JUDGMENT: | 25 June 2013 | |
CASE MAY BE CITED AS: | Peterse v Cantire Investments Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 826 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering consequences of injury to the right ring finger – whether the consequences are “at least very considerable”.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 18; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis | Shine Lawyers |
| For the Defendant | Ms J Forbes | Thomsons Lawyers |
HIS HONOUR:
1 The plaintiff alleges that he injured his right ring finger in the course of his employment with the defendant on 25 August 2005. He seeks the leave of this Court to issue proceedings to recover pain and suffering damages in respect of that injury.
2 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 he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as:
“(a)permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is that of the plaintiff’s 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 & Ors v Podolak (2005) 14 VR 622 at paragraphs 18 and 19
6 The 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.[3]
[3]Section 134AB(38)(b) and (c)
7 The plaintiff submits that the pain and suffering consequences of his injury can fairly be described as being at least very considerable. The defendant denies this is so.
Background
8 The plaintiff was born in Port Elizabeth, South Africa in February 1955 and is aged fifty-eight years. He came to Australia in 2001 with his wife and two children. He left school at the age of thirteen and thereafter, worked in various labouring jobs, including a glass factory and a bakery.
9 The plaintiff’s passion from a very young age was music. When he was about fifteen, he began playing in different bands as a vocalist. In addition, he has been playing the guitar since he was about ten years old. From about the age of seventeen, he would earn money from his music, in addition to his labouring work. He also developed a talent for playing the drums and percussion.
10 When the plaintiff was about twenty-three, he was a resident of Durban and worked as a full-time musician, playing in one band every week and also with another band on Sunday afternoons. He also earned money as a disc jockey on approximately three nights a week.
11 The plaintiff migrated to Australia in 2001 and joined a labour hire company, which located him in various workplaces including the Toyota Motor Company.
12 In about April 2004, the plaintiff took on direct employment with Chris’s Greek Dips, which was the business name for the present defendant. He was employed as a machine operator for various hours each week as a casual.
Injury and treatment
13 On 25 August 2005, the plaintiff suffered a traumatic injury to his right hand when a power-driven piston crushed his right ring finger in a machine upon which he had been working.
14 The plaintiff was taken by car to the Northern Hospital, where x‑rays revealed a comminuted fracture of the right ring finger. He also had lacerations over the palm and back of his hand. He was admitted to hospital and operated upon later the same day. Kirshner wires were inserted into the proximal phalanx and the lacerations were repaired. He was sent home the following day and thereafter, followed up in the Outpatient Department. Apparently the wires were removed from his finger a few weeks later and he had hand therapy at the hospital for about a year thereafter.
15 In that period, the plaintiff swore he had pain, swelling, numbness and restricted movements.
16 During 2006, the plaintiff stopped hand therapy treatment because he was told that nothing further could be done.
17 Two months after the accident, the plaintiff returned to work on light duties in the packing area and by the end of the year, he had returned to his normal duties in the factory. In that time, he stated he had a lot of ongoing problems with his right hand and in particular, he struggled to lift and push. He also swore:
“When my pain got particularly bad I took medication for it.”
18 Apart from this reference, there is no other reference to the taking of medication in that affidavit or in the plaintiff’s updated affidavit sworn 9 April 2013. Upon seeking leave to adduce further viva voce evidence, he swore that he takes Panadol tablets when his hand hurts by the activities that he is doing at the time, and this can occur two to three times a week.[4] Further, he says he take Mobic when the pain is very severe but that is
“…not very often. If I maybe knock my hand or the weather is cold and stuff like that and then I will.”
[4]Transcript (“T”) 9, L6-11
19 When asked how often this occurs, the plaintiff said:
“It’s like twice a week or something.”[5]
[5]T9, L22-27
20 The plaintiff further stated he has not received a prescription for Mobic and uses his wife’s medication.
21 Under cross-examination, the plaintiff stated the only prescriptions for painkilling medication were for Tramal on 4 October 2005 and one for Mobic on 8 November 2005.
22 The plaintiff attended the Sunshine Ultimate Care Clinic on 3 June 2009 and obtained a prescription for Panadeine Forte for a back injury. He continued to be treated at that practice until 14 February 2012 but there was no treatment for his right hand.[6]
[6]Exhibit 10
23 Under cross-examination, the plaintiff said he continued to see Dr Lee until about two weeks ago.[7] I note that there is no evidence adduced from Dr Lee concerning the plaintiff’s right hand. Apart from a prescription for Panadeine Forte on 3 June 2009, the plaintiff could not recall being given any other prescription for painkilling medication since that time.[8] Later, in cross-examination, he stated that every so often his wife gives him some Mobic when he is in severe pain. When asked:
[7]T14, L4
[8]T16, L1-5
“Is it every few weeks?”
The plaintiff answered:
“I’d say that.”[9]
[9]T20, L25
24 Later, when it was put to him:
“So it could be once a month or it could be every few weeks or it could be longer than once a month. Is that right?
the plaintiff answered:
“That’s right, sir.”[10]
[10]T21, L23-25
25 When asked about specific treatment since 2005, it was put to the plaintiff:
“Q: Since late 2005 you haven’t been back to your general practitioner about your hand, have you, any treating general practitioner. Is that right?---
A: Not about my hand, no.
Q: You haven’t been to any specialist about your hand have you since the doctors at the hospital operated on your in late 2005?---
A: No, only the physio.
Q: That ceased in about early 2006. Is that right?---
A: Yes.”[11]
[11]T22, L20-29
Work consequences
26 The plaintiff returned to work on light duties about two months after his injury and a few months later returned to his normal duties in the factory. He stated he had constant aching pain, as well as increased pain on the use of the hand at this time but he was able to remain at work until February 2012 when he left the factory for reasons not connected with his injury. Since that time, he has been looking for work and has made many job applications but without success. The consensus of the medical opinion is he could do most labouring works but would need to avoid heavy lifting with the right hand and repetitive use of that hand. Otherwise, he would be fit to do all types of work.
27 Thereafter, he was unemployed until 18 March 2013 when he began employment with Hertz as a driver and cleaner of cars. He is employed on a casual basis and the hours of work vary. In the past few weeks, he has worked between 20 and 30 hours per week.[12]
[12]Exhibit A, Affidavit dated 9 April 2013 at paragraph 5
Consequences
Recreation
28 The plaintiff swears that he can no longer play the guitar as well as he used to because he “can’t slap or thump the guitar or pick with [his] right hand the way that [he] used to”. He can only play this instrument for short periods of time. Further, he can no longer play the bongo drums and congas because “these involve too much force with the hands”.[13]
[13]Exhibit A, Affidavit of 28 February 2012 at paragraph 16
29 However, he continues to perform in his current band as a vocalist and he plays percussion by way of cowbell or tambourine. He alleges: “This really annoys the band.”[14] I shall return to this aspect later.
[14]Exhibit A, Affidavit of 9 April 2013 at paragraph 6
30 The plaintiff further alleges he cannot play cricket any more because he does not want to get his hand hit by the ball. I accept this consequence and I accept that he used to play with his son in the same team during the cricket season of 2004-2005. The evidence does not disclose whether he had played with his son in previous seasons, or indeed at all. In any event, when it was put to him that he would be too tired to play cricket now on Saturday afternoon because of his band duties, he denied that this would be so. He also states he has only been fishing on about two occasions since his injury and it was not enjoyable because “[he] could not use the reel properly”.[15]
[15]Exhibit A, Affidavit of 9 April 2013 at paragraph 17
Video surveillance
31 The defendant tendered in evidence 28 minutes of video-surveillance film taken of the plaintiff on 13 April 2013 and 25 minutes of video-surveillance film taken on 6 April 2013[16] which showed the plaintiff performing in his band at the Simber Café. The defendant also tendered a summary of surveillance taken on 1 September 2012, 3 November 2012 and 19 November 2012 which had been viewed by plaintiff’s counsel. It was agreed between the parties that the video in Exhibit 4 was to similar effect as shown in Exhibit 3. The plaintiff agreed in evidence that he had been playing at the café for a number of months this year for most Saturday nights and each performance was of approximately four hours. The video shown in Court depicted the plaintiff as lead singer, who was clearly enthusiastically and athletically involving himself in the performance. At various times he would grip the microphone with his right hand, clap hands above his head and beat a cowbell held in his left hand with a drumstick held in his right hand quite vigorously and for several minutes at a time. At other times he would use both hands in a fully outstretched manner in aid of his performance. On other occasions he would play the “air guitar” with his right hand in a strumming motion with the fingers extended.
[16]Exhibit 3
32 When it was put to the plaintiff that there was no sign of any pain in his hand or elsewhere during the performance, he stated that it may have been because he usually had four or five whiskeys during the performance. No suggestion was made that he needed to imbibe the whiskey because of the pain or that he did or did not consume whiskey whilst performing prior to his injury. In any event, if the band members are annoyed at the fact that he no longer plays the bongos or congas, it was not readily apparent viewing the enthusiasm of his performance or in the objective facts that they are playing on a regular basis and at a number of venues.
33 Ultimately the test in this matter is whether the plaintiff has established that the pain and suffering consequences of his injury, when judged by a 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. This test involves a value judgment, in which matters or fact and degree and of impression are operative.[17]
[17]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [41]
34 Further, the emphasis in s134AB(38)(c) of the Act is upon seeing where the facts of the particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – “because it may be supposed the consequences are glaringly apparent one way or another. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”[18]
[18]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [42]
35 In this matter, I accept that the plaintiff suffers ongoing pain in the right ring finger from time to time which has probably affected his ability to play the drums and the guitar, and would probably restrict his ability to play cricket. I also accept, in the foreseeable future, a continuation of painful symptoms and of consequences inhibition upon his enjoyment of life, particularly when he may bump the relevant finger.
36 Accordingly, the plaintiff’s evidence in this matter probably discloses pain and suffering consequences which are both significant and marked. However, on balance I am not persuaded that these consequences can be fairly described as being more than “significant” or “marked” or as being “at least very considerable”.[19]
[19]Section 134AB(38)(c) of the Act
37 Further, in reaching this conclusion, I take into account “the significance of what has been lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained”.[20]
[20]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
38 Accordingly, whilst accepting that the plaintiff has suffered from and will likely continue to suffer from inhibitions on his ability to engage in unrestricted physical activity in the music and cricket areas, by and large his ability to engage in these activities is not affected to the requisite degree. In particular, it does not appear to me that the plaintiff’s enjoyment of life with respect to his involvement in music has been affected in a way which could be described as more than “significant” or more than “marked”, and certainly not “at least very considerable”.
39 Accordingly, the application is dismissed.
40 I will hear the parties as to consequential orders.
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