Peterson v Cardinia Shire Council
[2015] VCC 1598
•2 November 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03291
| IAN MICHAEL PETERSON | Plaintiff |
| v | |
| CARDINIA SHIRE COUNCIL | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 October 2015 | |
DATE OF JUDGMENT: | 2 November 2015 | |
CASE MAY BE CITED AS: | Peterson v Cardinia Shire Council | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1598 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering damages
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to the plaintiff to commence a proceeding claiming damages for pain and suffering consequences of injury sustained by him in the course of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Slater & Gordon |
| For the Defendant | Mr J Batten | IDP Lawyers |
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 in the course of his employment on 26 May 2010.
2 There is no issue that on the above date, the plaintiff suffered a compensable injury to his right hand and thumb. In the present proceeding, the plaintiff asserts that he has suffered an injury involving his right hand, wrist and right forearm and the defendant puts in issue whether or not the plaintiff has suffered any compensable injury to the right forearm.
3 In the proceeding, the plaintiff relies upon two affidavits sworn by him and the viva voce evidence given by him in the course of the proceedings. Otherwise, the parties rely upon medical and like material tendered by them and surveillance evidence tendered by the defendant.
4 The affidavit evidence relied upon by the plaintiff is not in issue, and no purpose would be served by me repeating the content of that material in the course of my reasons.
5 It is appropriate however, that I note, in order to give context to my reasons, that in the course of his two affidavits, the plaintiff said, as to the activities he undertook once his injuries had stabilised, that:
· Whilst he was no longer able to undertake the general cleaning work, which he was employed to perform at the time of the subject injury, he had returned to full-time work driving a small tip truck.
· He suffered from constant pain in his right palm, wrist, forearm and elbow region, which was such that it disturbed his sleep.
· He had played football for many years; played one comeback game following his injury in order to achieve his 500th game milestone, and that but for his injury, he would still be playing, coaching, and umpiring football.
· He played cricket on a regular basis before his injury, and had continued to play cricket, but with considerable difficulty, since his injury in that:
(i) He had bowled only a few overs since his injury;
(ii) His activities in fielding were restricted to returning the ball via underarm;
(iii) He continued to bat, although his scoring ability had dropped considerably.
· He undertook all the cleaning and maintenance of his house, in the course of which he undertook gardening and occasional shovelling.
· The disturbance in his sleep caused by pain was such that most mornings he woke between 3.00 and 4.00am due to right arm, wrist and hand pain.
· In the course of his work, he was required to undertake some shovelling work, in respect of which he had difficulty, the prime reason for this being the condition of his right hand.
· In mid-2004, he had assisted his mother in moving from her home prior to its sale.
· He intended to continue playing cricket, although he now played it as a batsman, as he could no longer bowl or throw properly as a result of his injury.
Finding as to the compensable injury suffered by the Plaintiff
6 I am satisfied that the plaintiff has suffered compensable injuries the subject of his application, including that of the right forearm for the following reasons:
(i) Firstly, that finding is consistent with the Certificate of Opinion of the independent Medical Panel, comprising two experts, which assessed the plaintiff’s whole person impairment in this instance pursuant to s104B(9) of the Accident Compensation Act 1985 (“the Act”);
(ii) Secondly, the plaintiff’s complaint of pain in his forearm has been a consistent aspect of his presentation since at least October 2010, as documented in the medical report of Bernadette Kelly, the plaintiff’s treating hand therapist; and
(iii) Thirdly, that the plaintiff has suffered an injury to his forearm is supported by the medical opinion of Mr Murray Stapleton and Mr John Buntine, the only evidence which puts the presence of the injury in question being that of Mr Ireland, who does not opine against the cause of the injury but merely states that he is unable to opine with any degree of certainty upon that issue.
(iv) Fourthly, I accept the plaintiff’s evidence as to the timing and cause of the symptoms in his right forearm which, in my opinion, is consistent with that injury arising as a consequence of the fall the subject of this application.
Finding as to the consequences to the Plaintiff of the injury and impairment the subject of the application
7 There is no issue that the plaintiff has undergone four surgical procedures in this instance, namely:
(i) Operation 1 involved repairing of the long extensor of the thumb and a tendon repair.
(ii) Operation 2 involved an ulnar collateral repair of the ulnar collateral ligament of the metacarpophalangeal joint which was stabilised with the insertion of a K‑wire. The second operation was undertaken on 19 July 2010, in the course of which the K‑wire inserted in the first operation was removed.
(iii) The third operation was undertaken on 13 May 2011, in which an extensor pollicis brevis tendon transfer was undertaken to the long extensor tendon of the right arm.
(iv) The fourth operation, undertaken on 19 June 2012, involved an operation to the other aspect of the right elbow involving a detachment of the common extensor tendons and a release of the posterior interosseous nerve.
The Plaintiff’s viva voce evidence
8 The plaintiff was cross-examined at length about his history as a sportsman, his current sporting activity, and the activities depicted in the video-surveillance evidence in this instance.
9 In the course of his cross-examination, the plaintiff admitted that:
§ He was able to use a lawnmower to undertake strenuous mowing work involved in cutting an overgrown front nature-strip;
§ He continued to play cricket, which involved him batting left-handed and fielding at first slip;
§ He was able to wash his motorboat, and employed a pressure-cleaner to clean his front driveway;
§ He was able to handle a shovel for short periods of time in the course of his work when called upon to clean out the culverts in driveway pipes and in the course of the maintenance of his garden in which he had undertaken the levelling of soil for the purpose of establishing a lawn.
10 Contrary to the position put by the defendant to which I will refer in due course, the impression of the plaintiff was that he was a reliable witness who at no time sought to diminish his capacity to undertake activity, and at times volunteered positions which were against his interest: see for example his evidence at Transcript (“T”) 48, Line (“L”) 30.
The video evidence relied upon by the Defendant
11 The defendant makes an attack upon the plaintiff’s credit on the basis of the video evidence tendered by it.
12 In my opinion, the plaintiff’s activity as depicted in the video evidence was in no way inconsistent with the activity which the plaintiff deposed he was capable of undertaking in the course of his affidavits.
13 The activity undertaken by the plaintiff in exhibit 1, being the first surveillance evidence tendered by the defendant, which depicts the plaintiff mowing his front nature-strip and removing objects from a trailer, depicts the plaintiff engaged in activity potentially more strenuous than any other activity depicted in the defendant’s surveillance evidence.
14 As to the probative value of exhibit 1 as demonstrating the plaintiff’s capacity for activity, I am assisted in assessing that issue by the fact that that surveillance evidence has been shown to two consulting experts who have opined in this instance namely:
· Mr Damian Ireland, hand surgeon (who has opined both on behalf of the plaintiff in this instance), and Mr Murray Stapleton, plastic surgeon (who has opined both on behalf of the plaintiff and the defendant in this instance), neither of whom have opined that the content of the DVD in any way caused them to alter the opinions expressed by them as to the disability with which the plaintiff presents in his right hand, wrist and forearm;
· Mr Stapleton opining that the plaintiff presents with weakness in the wrist and hand and diminished sensation in the forearm in the distribution of the radial sensory nerve distal to the elbow, and did not opine in favour of the position that the plaintiff’s “left thumb and wrist are certainly impaired and the impairment which now exists should be regarded as a permanent situation” (Mr Stapleton, Plaintiff’s Court Book (“PCB”) 45):
“There was weakness of wrist extension which is measured at a power of four. There was weakness of extension of the metacarpophalangeal joints of all fingers of the thumb which was measured at a power of four. There was no ability to retropulse with the right thumb;
·Mr Ireland opining;
“The condition affecting the plaintiff’s right thumb is permanent and represents a significant residual impairment.”[1]
[1]Mr Ireland, PCB 49–51
15 As to the surveillance evidence the subject of the defendant’s exhibit 2, I am of the opinion that it in no way undermines the plaintiff’s evidence, for the following reasons:
(i) Firstly, the plaintiff undertook no activity, in my opinion, inconsistent with his capacity for activity the subject of his affidavit evidence or his viva voce evidence.
(ii) Secondly, the recording was in no way representative of the plaintiff’s capacity for continued activity, having regard to the fact that the activity undertaken by the plaintiff the subject of the recording occurred over a period of approximately 80 minutes, whereas the activity the subject of the DVD occupied only 46 minutes, the result being that the DVD misrepresents the plaintiff’s capacity for activity, in that it provides a depiction of what appears to be 46 minutes of continuous activity, when in fact the truth of the matter is that for 34 minutes, the plaintiff was not the subject of any recorded observation. In that sense, in the absence of any explanation as to reason for the missing surveillance, the video evidence was selective, the camera being employed to record the plaintiff’s movements for only approximately one half of the period the subject of the surveillance.
16 For these reasons, I am not satisfied that the defendant’s surveillance evidence attests in any relevant way to the issues for my determination in this instance.
The medical evidence generally
17 In a report dated 18 March 2013, the plaintiff’s treating hand surgeon, Mr Stephen Tham, opined that the injury to the plaintiff’s right hand on 25 May 2010 had involved three surgical procedures undertaken by Mr James Leong and one procedure undertaken by Mr Tham, in respect of which the plaintiff’s prognosis was as follows:
“I consider that surgical (sic) to his right thumb has now stabilised. I also consider that surgery to his right elbow has stabilised. He has recovered well from surgery to the thumb with good function of the extensor pollicis longus tendon; however, there is a degree of ongoing discomfort in his right forearm and elbow. It is unlikely that his symptoms of pain will improve further.”
18 Ms Bernadette Kelly, the plaintiff’s treating hand surgeon, who last treated the plaintiff in late 2012 following his fourth bout of surgery, commented:
“At present Ian continues to suffer from pain throughout his right arm and shoulder and his very limited function of his right hand. His forearm swells and cramps with any activity. He has limited active movement of his wrist, thumb and index finger, and consequently has very poor grasp. ... Ian has managed to return to work and adjust the way he works to accommodate for reduced function of his right arm. He has also had to adjust to his reduced right-hand functioning in his daily activities at home. I think that the problems with Ian’s right arm will be for the long term.”
19 Given the similarity between the opinions of Ms Kelly and Mr Tham as to the stability of the plaintiff’s condition and their position as treating specialists in this instance, I am of the opinion that their evidence should be accorded primacy in the weight accorded to the various medical opinions in this matter.
20 Mr Murray Stapleton has opined upon the plaintiff’s presentation in a series of reports between September 2010 and July 2015. Although a consultant surgeon in this instance, having regard to the period of time over which Mr Stapleton has reviewed the plaintiff and his position as being retained initially by the defendant and subsequently by the plaintiff, I consider Mr Stapleton to be well placed in this instance to opine as to the plaintiff’s work-related injury and current disabilities.
21 In the course of his reports, Mr Stapleton opined:
(i) That the plaintiff’s left forearm injury, which was the subject of the plaintiff’s fourth surgical procedure, was necessitated by the plaintiff’s work-related injury;
(ii) That the plaintiff appeared to be developing significant arthritic change in his right wrist;
(iii) That the plaintiff has suffered a nerve compression such that he presents with no sensation over the back of his wrist in the region of the back of the thumb and the right index finger;
(iv) That the impairment of function in the plaintiff’s right thumb and wrist should be regarded as permanent.
22 In the course of his most recent report, Mr Stapleton took no issue with the plaintiff’s history that he suffered from constant pain in his thumb, that he had no sensation over the terminal branch of the radial nerve and only a flicker of flexion in his thumb, that he had a reduced range of wrist movement, and poor pinch grip.
23 In his report dated 17 July 2013, Mr John Buntine, plastic and hand surgeon, examined the plaintiff on 13 July 2013. In the course of that examination, Mr Buntine noted that the appearance of the plaintiff’s left and right hands indicated slightly greater use of the left hand than the right hand, as did the muscle development of the right arm. In my opinion, these findings are consistent with the plaintiff favouring his left arm, notwithstanding the fact that he is right-arm dominant.
24 Mr Buntine opined that the plaintiff presented with glove and stocking loss of sensation affecting his right upper extremity, which was inconsistent with the distribution of sensory nerves and typical of psychogenic cause, and opined that the plaintiff presented with a zero per cent permanent impairment in this instance.
25 I note that Mr Buntine is the only medical practitioner to opine that the plaintiff presents with anything other than an organic injury.
26 The opinion of Mr Buntine may be contrasted with the combined opinion of the Medical Panel expressed some three months later in which two independent experts have assessed the plaintiff’s whole person impairment arising by reason of his subject injury as being 17 per cent, which equates to an impairment of function of the right upper limb of 26 per cent.
27 Given the stark contrast between the position taken by Mr Buntine as to the nature of the plaintiff’s presentation and those taken by each of the other medical practitioners who have opined in this instance which are largely consistent, I prefer the latter opinions as to the disability with which the plaintiff presents to that of Dr Buntine.
28 In a report dated 25 February 2015, Mr Damian Ireland, hand surgeon, reported the plaintiff as presenting with weakness of wrist extension, weakness of extension of the metacarpophalangeal joints of all fingers and of the thumb, and diminished sensation over the entire distribution of the radial sensory nerve to the elbow. He diagnosed the plaintiff as presenting with:
(i) Right rotator cuff impingement syndrome;
(ii) Recalcitrant minor right lateral epicondylitis;
(iii) Minor motor sensory radial nerve dysfunction of the right forearm;
(iv) Right thumb dysfunction with restricted motion in all joints;
and opined that the condition affecting the plaintiff’s right thumb was permanent and represented a significant residual impairment.
The positions of the parties
29 Given the plaintiff’s evidence that he now experiences no right shoulder symptoms, the contention on behalf of the defendant that the consequences of the plaintiff’s right shoulder injury must be disentangled falls away in this instance.
30 Essentially, it is the defendant’s position that the plaintiff has exaggerated his disability, the proof of which exaggeration is demonstrated by the fact that the plaintiff:
§ is able to work on a full-time basis;
§ continues to play cricket, and is able to manage the normal activities of daily life;
the result being that whilst the plaintiff may suffer from some symptoms associated with the subject injury, those symptoms are such that they do not meet the statutory threshold, and that the activities undertaken by the plaintiff as depicted in the DVD evidence clearly support that position.
31 In response, it is put on behalf of the plaintiff that he is a man who has got on with his life, is a stoic and chooses to continue to the best of his ability to maintain the activities which were important to him, but does so at reduced levels and putting up with the pain associated with those activities, which attitude exacts a significant toll upon him.
Findings
32 Given the opinions expressed by Ms Kelly and Mr Tham when considered in the context of the plaintiff’s current evidence, I am satisfied that, with the exception of the condition of the plaintiff’s right shoulder about which the plaintiff gave evidence that it is no longer causing problems, the plaintiff’s condition had largely stabilised by the time authored their respective reports.
33 It is not in issue that the plaintiff was:
· An exceptional sportsman, in that he was regarded within his local community as a hero, having regard to the 500 games of football which he had played.
· Continuing to play football at the time he suffered the subject injury, notwithstanding that he was in his late forties.
34 Having regard to:
· The plaintiff’s history of playing football at a competitive and open level until his late forties and having achieved virtual legend status within his community by reason of that activity and his continued participation in that sport up to the date of his injury notwithstanding his age;
· The plaintiff’s repeated return to work following each of the surgical procedures which have been undertaken, and his current undertaking of work which involves driving a truck and on occasions the use of a shovel to clear spoon-drains, when considered in the context of the report by the plaintiff’s treating hand therapist which documents the stabilised condition of the plaintiff’s right arm as involving limited function of the right hand and pain in the hand and forearm rated at 4/10 at rest and 9/10 during activity, about which the plaintiff’s hand therapist took no issue;
I am well satisfied that the plaintiff presents as a true stoic who has a considerable capacity to tolerate significant pain in order to attempt to maintain the income he derives by working and sporting activities which have always been an important part of his life. In making that finding I take into account not only my findings as to the medical evidence to which I have referred but also the plaintiff’s evidence at T83, L11-30, which is in turn consistent with those findings and which I accept.
35 I am satisfied that that the plaintiff’s injury is such that it:
· Has robbed the plaintiff of his ability to continue to play football which, but for his injury, the plaintiff would probable still be playing
· Has significantly reduced his capacity to play cricket, so that he is limited largely to batting but can no longer bowl and field;
· Precludes the plaintiff from engaging in tennis;
· Precludes that plaintiff from engaging from any activity which involves the application of power by or forceful activity with his left hand and arm without being exposed to consequences in the form of pain
· Restricts the plaintiff from engaging in any form of employment which requires unrestricted use of his arms;
· Involves a loss of sensation in his right hand and forearm which in turn exposes him to the potential of further injury;
· Causes the plaintiff to experience levels of pain such that he is required to take over-the-counter medication in the form of Nurofen (six tablets every night) in order to manage his symptoms;
· Significantly interferes with his sleep;
· Causes the plaintiff at the end of a working day to be significantly disabled to the level described by him in his viva voce evidence.
36 In assessing 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 body functions, may be fairly 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.
37 My task has been described as involving a value judgment in which matters of fact, and degree and of impression are operative: see Stijepic v One Force Group (Australia) Ltd & Anor;[2] and one in which I am required to:
[2][2009] VSCA 181
“… take into account not only what symptoms there are in what a 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 the consequences may be informed to some extent by what is retained.”
See Dwyer v Calco Timbers Pty Ltd (No. 2).[3]
[3][2008] VSCA 260
38 In applying that approach to my assessment of the evidence in this case, I am satisfied in that in this instance, the relevant impairment is appropriately described as being “more than significant or marked” and as being “at least very considerable”.
39 In these circumstances I am satisfied that the plaintiff's impairment meets the high threshold test which is imposed by the Act and, accordingly, that the plaintiff has made out his case as to his entitlement to the leave sought in this proceeding.
40 I will hear the parties as to the precise form of the order which I should make in the proceeding, and also upon the issue of costs.
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