Poollay v Victorian WorkCover Authority
[2018] VCC 467
•17 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00497
| LOUIS GLENFORD POOLLAY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 October 2017 | |
DATE OF JUDGMENT: | 17 April 2018 | |
CASE MAY BE CITED AS: | Poollay v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 467 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right shoulder – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Leave granted to the plaintiff to issue proceedings at common law for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr P Hamilton | Zaparas Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahony Lawyers |
HIS HONOUR:
1 The plaintiff in this action seeks leave to commence common law proceedings against his former employer Lite Industries Pty Ltd (“Lite Industries”) pursuant to s134AB(16)(d) of the Accident Compensation Act 1985 (“the Act”) in respect of pain and suffering damages.
2 The application refers to an injury to the plaintiff’s left hand which he sustained on or about 28 January 2014 while working as a welder for Lite Industries at its factory in Lynbrook, Victoria.
3 At the hearing, it was not in dispute that the plaintiff suffered a compensable injury in the course of his employment with Lite Industries on the date alleged. What was in contention was whether the plaintiff suffered a “serious injury” within the meaning of paragraph (a) of the definition of the term in s134AB(37) of the Act as a result of this compensable injury. Paragraph (a) provides that a “serious injury” means:
“(a) permanent serious impairment or loss of a body function.”
4 In his opening, counsel for the defendant indicated that the main issue before the Court was whether the impairment subsisting at the time of the hearing, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as “at least very considerable” and “more than significant or marked”.[1]
[1]See Humphries & Anor v Poljak [1992] 2 VR 129
The Plaintiff’s background
5 The plaintiff was born in May 1971 in the Republic of Mauritius and was aged forty-six at the date of hearing. He is married and has three children aged eighteen, thirteen and six, all of whom live with him and his wife. After completing Year 11 at high school in Mauritius, he did a plumbing apprenticeship in that country, before moving to New Zealand in about 2005. At this time, he obtained a welding certificate. In about 2012, he moved with this family to Melbourne, and shortly thereafter obtained a welding job at Homewood Group as a casual worker. He was then employed by a company called SFL, performing heavy welding work, which he performed for about nine months. He then obtained another better paying job with Capture Equipment as a welder, working on gates and fences. He worked there for about six months as a casual.
6 The plaintiff commenced employment with Lite Industries on or about 20 January 2014 as a welder. He was asked to demonstrate his welding skills on that date and was employed immediately. He had to weld together aluminium shields while putting together side rails weighing about 600 kilograms and other duties as required.[2]
[2]Exhibit “A”, affidavit sworn 3 October 2016, paragraph [15] at Plaintiff’s Court Book (“PCB”) 1-5
7 On 28 January 2014, while performing his duties with a 6-inch angle grinder, the metal disk on the grinder suddenly broke and flew off, spinning violently towards his face. With a sudden movement and reflexes, he raised his left hand and the disk ran across his fingers. He stated:
“… I was wearing rubber gloves at that time. I took the gloves off. Blood was spurting everywhere and I was in great pain.”[3]
[3]Exhibit “A”, affidavit sworn 3 October 2016, paragraph [17], PCB 3
8 The plaintiff was transferred to Waverley Private Hospital, and on 29 January 2014, plastic surgeon, Mr David Ying, performed the first surgical operation. At the initial consultation, Mr Ying noted:
“… He had lacerations to the left index finger, left middle finger, left ring finger and left little finger.
The left index finger had the most severe injury with a laceration affecting the flexor digitorum profundus tendon in zone 2. In addition, he had lacerated both digital nerves to the index finger as well as the digital artery on the radial aspect of the index finger.
Mr Poollay underwent repair of both nerves, the artery and the flexor tendon. He was discharged on the day of surgery.”[4]
[4]Exhibit “E”, report of 21 October 2014, PCB 31
9 The formal diagnosis was:
“Flexor tendon and nerve and artery lacerations to the left index finger.”[5]
[5]Exhibit “E”, report of 21 October 2014
10 The plaintiff was off work for a month after the incident and then went back to work with the employer. He went on doing grinding and cutting work, among other tasks, but stated that he struggled.
11 As a consequence, the plaintiff had further surgery performed by Mr Ying on 27 May 2014. Mr Ying performed a “flexor tenolysis”. Mr Ying stated:
“… At this surgery it was noted that he had scar tissue surrounding the repaired flexor tendon. The scar tissue was removed and further rehabilitation with the Re-Wired hand therapy group took place in the post operative period. Despite this second operation and maximal hand therapy input, he still has reduced flexion at the last left joint of the left index finger.
This means that Mr Poollay has an ongoing disability which is unlikely to improve significantly over time … .”[6]
[6]Exhibit “E”, report of 21 October 2014, PCB 32
12 At this early stage, Mr Ying did not believe that the disability would prevent him from performing his usual duties at work.[7]
[7]Exhibit “E”, report of 21 October 2014
13 In his affidavit sworn 3 October 2016, the plaintiff reported:
“23.Unfortunately, the surgery did not help much at all. This was really disappointing and frustrating.
24.I was off work for another month from the second surgery. I went back to doing some welding work among my other tasks. This hurt my finger and I could not use the trigger gun. My index finger was aching and stiff in the mornings.
25.After my first and second surgeries, I received treatment from Re-Wired Hand Therapy & Nerve Recovery Specialists. They got me to do a number of exercises, such as grip strength work.
26.Since my injury, I felt like the Employer wanted to get rid of me. I was struggling to do the work with my injury and the Employer was getting frustrated about that.
27.Eventually, they terminated my employment on 12 September 2014.”[8]
[8]Exhibit “A”, affidavit sworn 3 October 2016, PCB 4
14 In an affidavit sworn 24 July 2017, the owner of Lite Industries, Mr Tony Geldart, swore:
“17.On 12 May 2014 the Plaintiff was stood down on a temporary basis along with three other employees as no work was available. He was later able to return on 30 June 2014 fit for alternative duties as per his certificate.
18.The Plaintiff was subsequently issued with disciplinary warnings in relation to his work performance and failure to follow instructions.
19.On 12 September 2014 his employment was terminated due to his unsatisfactory work performance, largely failing to understand the job at hand and inability to follow through with instructions. He was still on his probation period when he was terminated.
20.Prior to his termination, he had been able to return to work performing near full duties with restrictions as per his certificate of capacity that required use of the left trigger finger to be avoided.”[9]
[9]Exhibit 1, Defendant’s Court Book (“DCB”) 2-3
15 Apparently there had been no complaints with the plaintiff’s performance prior to injuring his left hand and such particulars as are contained in paragraph 19 of the defendant’s affidavit do not fit squarely with “disciplinary warnings” in my view. The plaintiff conceded he was unable to “follow through with instructions” with respect to his usual duties because of the injury to his left hand.
Medical evidence
16 The treating general practitioner, Dr Zaman Bhuiyan, has provided the solicitors with two reports, both dated 25 July 2017.[10] There are some discrepancies between the two reports. Both reports, however, recite:
“… Despite this second operation and maximal hand therapy input, he (Mr Louis Poollay) still has reduced flexion at the joint of the left index finger. Now he (Mr Louis Poollay) has difficult to grip and use of left index finger.”[11]
(sic)
[10]Exhibit “C”
[11]Exhibit “C”, PCB 26 and 27A
17 In the first report, Dr Bhuiyan recites:
“He (Mr Louis Poollay) is currently of performing his pre-injury employment. He has the ability to perform almost all of his pre-injury duties with the exception of welding in a “left handed fashion” due to residual disability in the left index finger tip.”[12]
[12]Exhibit “C”, PCB 27
18 In the alternative report, Dr Bhuiyan recites that the plaintiff was currently:
“… not able to performing his pre-injury employment. He has the ability to perform almost all of his pre-injury duties with the exception of welding in a ‘left handed fashion’ due to residual disability in the left index finger tip.”[13]
(sic)
[13]Exhibit “C”, PCB 27B
19 The first report recites that the disability would not prevent the plaintiff from performing his usual duties at work,[14] and the alternative report recites the disability would prevent him from performing his usual duties at work as a welder.[15] The explanation given in the alternative report is that the plaintiff:
“… can not fist, grab and hold tools for work, may do other work he has been suffering from pain and cramping of injuried finger, needed use medication (mobic) rest of life to support the hand use and movement … .”[16]
(sic)
[14]Exhibit “C”, PCB 27
[15]Exhibit “C”, PCB 27B
[16]Exhibit “C”
20 Such alterations having been recorded in bold type. The presence of the bold type and the fact of the alteration of the report have not been satisfactorily explained, except that it is common ground that the plaintiff had not returned to his usual duties as reported in the first report and Dr Bhuiyan has apparently not tried to disguise the difference in the reports by highlighting the alterations in bold type. In any event, I do not consider the general practitioner’s views to be decisive in this matter.
21 The treating occupational hand therapist, Ms Rosemarie Koh, reported to the solicitors on 30 September 2014.[17] At that stage, it was her view that the plaintiff would benefit from fortnightly 40-minute sessions of specialised hand therapy for the next six months as this would enable him to make accumulative small gains in the flexion of his left index finger. She stated:
“… I believe that it is early stages in Louis’s recovery, as flexor and nerve repairs are known for their lengthy rehabilitation.”[18]
[17]Exhibit “D”
[18]Exhibit “D”, PCB 30
22 As to prognosis, Ms Koh stated:
“Flexor tendon repairs are notorious for their post-operative adhesions and cadaveric experiments have revealed three sites of adhesion is within zone 2 flexor tendon repairs. This often results in a loss of total active range. He may not regain full flexion in his left index finger. Unfortunately Louis had also sustained a partial tear of the A4 pulley, which is crucial for optimal efficiency of the flexor tendons and in preventing bowstringing.”[19]
[19]Exhibit “D”, PCB 30
23 The plaintiff also tendered three medico-legal reports from hand surgeons, Mr Murray Stapleton, Mr Damian Ireland and Mr John Crock, dated 26 August 2015, 1 December 2016 and 29 June 2017 respectively.[20] He also tendered an up-to-date report from the treating surgeon, Mr David Ying, dated 17 July 2017.[21]
[20]Exhibits “G”, “H” and “J” respectively
[21]Exhibit “E”, PCB 35
24 Mr Stapleton recorded the plaintiff’s current status as follows:
“His difficulty now is that of lacking in ability to manipulate small objects between the thumb and index finger and he has a problem holding heavy weights.
He said he has no sensation over 70% of the outer aspect of the left index finger.
He has very reduced flexion capacity of the left index finger. He said he could not hold a welding torch or a pistol-grip power tool if it is required to be operated by his left hand.
His condition is now stabilised.”[22]
[22]Exhibit “G”, PCB 39
25 In his “Analysis of Findings”, Mr Stapleton recorded:
“4.1It is the left index finger which is now the problem, where the deep flexor tendon and the outer sensory nerve have been divided and he has reached maximum medical improvement. I doubt whether further surgery will improve his left hand condition and, in that situation, I believe he is going to be required to be retrained for another job. This gentleman continues to suffer from the effects of the medical condition described.
4.2The prognosis is that this gentleman has reached maximum medical improvement. He would suffer harm if he was forced to go back to work as a welder, for obvious reasons.”[23]
[23]Exhibit “G”, PCB 40
26 Mr Damian Ireland, in his report, recorded:
“Mr Poollay is currently not undergoing any treatment for the left hand injury other than self administered Panadol 2 per day.
…
Mr Poollay complains of ‘occasional pain’ in the palm of the hand adjacent to the index finger. He describes cramping which occurs on a daily basis in the palm of the left hand and diminished movement of the index finger. He also describes sensory loss along the radial side of the index finger.
When asked regarding functional loss, he states he has difficulty with most tasks but can’t articulate anything specific. He thinks he would be unable to return to work as a welder due to ‘difficulty using hand tools’.”[24]
[24]Exhibit “H”, PCB 46
27 Mr Ireland’s diagnosis was one of –
“… dysfunction left index finger following flexor tendon laceration and radial digital nerve laceration.”[25]
[25]Exhibit “H”, PCB 47
28 Mr Ireland records that the plaintiff, himself, feels he could not return to work as a welder and this is not contradicted by Mr Ireland. He also commented:
“There is no evidence of any functional component.”[26]
[26]Exhibit “H”, PCB 48
29 Mr John Crock, in his report, recorded:
“1.7I understand that the lacerations to the little, ring and middle fingers were relatively superficial, however on the index finger, the laceration went right down to and partly through the bone. He did not require internal fixation of the bone, however, he required repair of both digital neurovascular bundles and both flexor tendons.”
1.8He is now left with limited movement in the index finger and the tip of his index finger is largely insensate, which of course limits what he can do as a welder and particularly with TIG Welding, he is very limited in his ability to work.”[27]
[27]Exhibit “J”, PCB 50
30 On examination, Mr Crock recorded:
“2.3He is entirely insensate on the radial border of the index finger from the proximal interphalangeal joint to the tip of the finger, and he has a 3cm two-point discrimination on the ulnar border of the index finger, from the level of the PIP joint to the tip of the finger, however he does have light touch vibration and cold sensitivity on the ulnar border of the index finger. The grip strength on the left hand is 30kgs using a Jamar Dynamometer set on 3 and the readings are physiological. In the right hand, he has a 50kgs grip strength using the Jamar Dynamometer set on 3.”[28]
[28]Exhibit “J”, PCB 50
31 As to fitness for work, Mr Crock recorded:
“Mr Pool[l]ay’s condition renders him unfit for pre-injury employment, and would make any manual labour difficult. His training and skill set would make it difficult for him to take alternate employment.
…
I understand he has had a subsequent tenolysis following his original repair, performed by Mr David Ying, a very experienced and skilled Plastic and Reconstructive surgeon. It is highly unlikely that further surgery will be gratifying. Amputation of the digit is a viable suggestion, but has the potential to cause stump neuroma pain which may worsen his condition. Repeat tenolysis could make his condition worse. No nerve surgery would improve his situation.”
…
Mr Pool[l]ay’s condition has technically stabilised, and it is unlikely that he will make a significant improvement.”[29]
[29]Exhibit “J”, PCB 51
32 In his up-to-date report, treating surgeon, Mr Ying, recorded:
“(i) Your client is not fit for pre injury employment.
(ii) Your client is, however, potentially fit however for alternate duties. His right hand grasp is normal. His left hand grasp is limited due to the stiffness in the left index finger and the consequent weakness that is associated with the stiffness. The reduction in full flexion in this finger can also impede his ability to grasp certain tools, therefore alternative duties would require an avoidance of heavy power tools that require a firm g[r]ip with both hands. Your client would also need to avoid jobs with repetitive heavy lifting. Your client would also require relatively frequent breaks between performing tasks if a moderate degree of repetition is involved.”[30]
[30]Exhibit “E”, PCB 36
33 Mr Stapleton’s report had been procured on behalf of the defendant, but tendered by the plaintiff. The defendant also tendered two reports of occupational physician, Dr Michael Bloom, dated 19 December 2016 and 15 May 2017.[31] In his first report, Dr Bloom recorded the current condition as follows:
“Mr Poollay said that the condition of his left hand and index finger has now stabilised. He said that there is intermittent soreness, and he indicated the palm of his left hand overlying the second flexor tendon as well as over the palmar aspect of the index finger. This soreness is activity dependent and occurs after heavy lifting (loads greater than 20kg), the discomfort and pain settling with rest. Mr Poollay said that he is unable to fully flex the left index finger, and as a result of that he has reduced dexterity with his left hand and is unable to grip or sustain hold on heavy loads.”[32]
[31]Exhibit 4
[32]Exhibit 4, DCB 21
34 As to current treatment, he recorded:
“For pain he takes Panadol 2 tablets on an as needed basis. He said that he would take up to 6 tablets per day but he does not need this every day and this might average 2-3 days per week. He also occasionally takes anti-inflammatory medication (Mobic) on an as needed basis, averaging no more than 1 tablet per week. There was no other current treatment.”[33]
[33]Exhibit 4, DCB 21
35 As to his functional capacity, Dr Bloom recorded:
“Mr Poollay said that he is now working full-time in a casual position as a Machine Operator in the manufacture of road signs, and is hoping that his position is made permanent. This work does not require heavy activities with his hands or upper limbs or fine dextrous work with his left hand, and therefore he experiences no difficulty with such work.
… He said that he is more or less fully functional, but he cannot sustain heavy work with his left hand, and has difficulty with activities that require fine dexterity with the left hand.”[34]
[34]Exhibit 4, DCB 22
36 After clinical examination, Dr Bloom stated:
“The overall result of this loss of motion of the joints of the left index finger secondary to the tendon damage is loss of a significant degree of flexion, and therefore inability to form a strong pincer grip between thumb and index finger, and significantly reduced grip strength. Also there is loss of manual dexterity for tasks that require fine coordination between the index finger and the thumb.”[35]
[35]Exhibit 4, DCB 22
37 In summary, Dr Bloom recorded:
“This right hand dominant welder sustained superficial lacerations to the palmar aspect of his 3rd, 4th and 5th digits to his left hand, but a serious and complicated laceration to the palmar aspect of his left index finger that resulted in complete division of the FDP tendon and neurovascular bundle. This was treated surgically on two occasions with only moderate outcome, and now there is good evidence of a persisting and permanent level of dysfunction of that left index finger characterised by discomfort and restricted range of movement. This situation has now stabilised and so the degree of impairment is permanent.
I gained the impression that this man is well motivated because since losing his job because of this injury he has found alternative means of employment, and remains employed full-time, albeit not in his initial capacity as a skilled welder.
The level of permanent impairment to the left index finger does mean that his function and work opportunity is somewhat restricted because he is unable to operate hand tools with his left hand, and his grip strength and dexterity in his left hand will be somewhat compromised permanently. This means that it is unlikely that he could safely resume his unrestricted pre-injury duties as a skilled Welder, although he does have significant transferrable skills, and because there is a reasonable level of remaining function of his left hand, he has proved to be continuously employable.”[36]
[36]Exhibit 4, DCB 23
The Plaintiff’s evidence
38 The plaintiff swore two affidavits, dated 3 October 2016 and 25 July 2017.[37] He was also cross-examined. Following termination of his employment with Lite Industries, he took on a warehousing job where he packed boxes, and then another company, packing hospital chairs and assembling, and still works there. Relevantly, he swore:
“30.I cannot do a trade job because of my injury. Doctors tell me I will never go back to welding work. I am devastated that I have lost my career.”[38]
[37]Exhibit “A”
[38]Exhibit “A”, plaintiff’s affidavit sworn 3 October 2016, PCB 4
39 The plaintiff further stated:
“32.Sometimes I get pain, particularly if I do any repetitive work, in my index finger and I take Panadol or other pain relief medication for that.
…
34.From my injury, I have lost a lot of sensation over the index finger.
35.I also cannot bend my finger.
36.Now I cannot move objects between my thumb and index finger and have difficulty holding heavy weights, for example when carrying boxes.
37.I can no longer hold a drill, welding torch or grinder in my left hand and I cannot press the trigger with my index finger.
38.I cannot do pushups, repetitive work and I get cramps in my left hand.
39.If I lift something heavy, I often have to drop it.”[39]
[39]Exhibit “A”, plaintiff’s affidavit sworn 3 October 2016, PCB 4-5
40 In his second affidavit, sworn 25 July 2017, the plaintiff alluded to the different types of welding he had learned secondary to his plumbing training in Mauritius. He swore:
“… There, I learned different types of welding – using steel, alumin[i]um, copper brazing and piping, welding galvanised sheets and other materials and working with stainless steel.”[40]
[40]Exhibit “A”, plaintiff’s affidavit sworn 3 October 2016, plaintiff’s affidavit sworn 25 July 2017, PCB 6-7
41 The plaintiff further swore that he could not obtain permanent residency because his current employment was not a skilled job and his income was not enough to make he and his family eligible for the application.[41]
[41]Exhibit “A”, plaintiff’s affidavit sworn 3 October 2016, paragraph [4], PCB 7
42 As to his then current treatment, the plaintiff swore:
“5.I consult with my GP when I am in a lot of pain and my hand and index finger are very sore.
6.My GP has prescribed Mobic for me for when the pain is very bad. At times, I will take two Mobic tablets in the morning and one in the afternoon. I probably take these tablets about twice a week at the moment, because of the work I am doing, which I discuss below.
7.I am taking Panadol on most days that I do not take Mobic.
8.The Mobic makes me feel sleepy and it is hard to work when I take it.
9.I also was recently reviewed by Dr David Ying, my surgeon. He said that there is nothing more he can do for me and that I have to put up with my problem, limitation of movement and pain.”[42]
[42]Exhibit “A”, plaintiff’s affidavit sworn 3 October 2016, PCB 7
43 As to his current job, the plaintiff swore:
“13.Most of the time, I operate a Henrobe machine. The machine processes alumin[i]um sheets on a conveyor belt. As the sheets come to the machine, I use a foot pedal and that rivets road signs together. I occasionally do other jobs, like operating a drop saw with my right hand to cut the materials.
14.I am struggling even with this job that requires little use of my hands. That is why I am relying on the Mobic many days when I am working.
15.At this time of the year, it is cold in the factory. I find that my hand is cramping. I also get pain when it starts to cramp.”[43]
[43]Exhibit “A”, plaintiff’s affidavit sworn 3 October 2016, PCB 8
44 As well as stating that he was able to earn more money as a welder, the plaintiff recorded:
“19.I am devastated that I can’t get back to my welding work. I loved doing it. I loved having moved to Australia and having the opportunity for my family and to apply for Permanent Residency. My job made me a good living for me and my family. I enjoyed doing the technical work and being creative with it, using my skills built up over many years. I loved getting up and going to work. I was fit and keen. My wife didn’t use to work and she looked after our kids and that has changed now. This makes me upset and frustrated.
20.I can never go back to welding work or work involving the use of tools of (sic) the use of hands generally.
21.Now I don’t like my job. It is repetitive and boring. I hate that I find it difficult, even though it’s light and simple work. I hate that there is a welder there and that I can’t do that welding work any more. I have been asked at times to do the welding for them, but I keep having to say that I can’t do it because of my injury.
22.I therefore believe I was capable of earning significantly more per year than I am earning now and will earn into the future.”[44]
[44]Exhibit “A”, plaintiff’s affidavit sworn 3 October 2016, PCB 8-9
45 As to the update on his consequences, the plaintiff swore:
“23.I get constant pain in my left hand. The pain is in the middle of the index finger, down through the hand and down the base of the thumb.
24.When it gets painful, I try to put my hand under my other arm to keep it straight and with pressure on it to try to release the pain.
25.The pain is accompanied by regular cramping in that area that I just described above. Putting my hand under the opposite arm also helps. I also try to push my finger across to try to get rid of the cramp.
26.I have numbness right around the index finger. I have difficulty using my hand because of the loss of feeling around the index finger.
27.I can’t move my index finger very much at all. It almost stays straight. Trying to move it also causes significant pain.
28.I have very limited grip strength on the left side. It feels very weak and I can’t use my hand properly.
29.I can’t hold heavy weights or move small objects in my left hand.
30.I used to go to the gym about twice a week to do weights. I can’t lift weights now with my hand. I also loved doing push ups, but I can’t do them now.
…
33.I am involved in the Church a lot and helping people who are disabled. Often, it requires lifting heavy things for them or doing maintenance or painting for them and I can’t do that.
…
39.My relationship with my kids is affected. They will call and want to get picked up and I am in pain and want to rest and go out, particularly on weekends. I therefore have to rely on my wife to collect them. I don’t want to show them that I am affected by the injury, but I can’t keep pushing myself.”[45]
[45]Exhibit “A”, plaintiff’s affidavit sworn 3 October 2016, PCB 10-11
Credit
46 I find that the plaintiff was straightforward and non-evasive under cross-examination and found him to be a witness of truth. In particular, the defendant tendered in evidence two video recordings taken 5 November 2016.[46] Although the plaintiff admitted that he had been constructing a fence with the assistance of his family, the film discloses that after awkwardly picking up two bags of cement with two hands, he then proceeds to pick up another three or four, just with his right hand, which I infer was as a result of discomfort with the left hand.
[46]Exhibit 2
Findings
47 As earlier stated, I find that the plaintiff is a witness of truth and has not sought to embellish his symptoms at any stage.
48 The pathology demonstrated from the subject injury is consistent with ongoing pain and restrictions in the plaintiff’s ability to carry out manual work.
49 I am particularly reminded of the dicta of her Honour Dodds-Streeton JA, in Kelso v Tatiara Meat Co Pty Ltd,[47] where her Honour stated:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[48]
[47](2007) 17 VR 592
[48]Kelso v Tatiara Meat Co Pty Ltd (ibid) at paragraph [199]
50 Further, I am mindful of the dicta of President Maxwell in Haden Engineering Pty Ltd v McKinnon,[49] to the following effect:
[49](2010) 31 VR 1
“Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case."[50]
[50]Haden Engineering Pty Ltd v McKinnon (ibid) at paragraph [16]
51 Also of note, relevant to the current situation, is his Honour’s statement at paragraph 15 to the following effect:
“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.15 What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’”.[51]
[51]Haden Engineering Pty Ltd v McKinnon (ibid) at paragraph [15]
52 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”.
53 This test involves a value judgment in which matters of fact and degree and/or impression are operative.[52]
[52]See Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [41]
54 In this matter, I accept that the plaintiff suffers ongoing pain and restriction in his left hand, such that he is unable to perform his chosen career of welding, and this has affected his ability to not only fully participate in unrestricted labouring work, but has deprived him of an occupation that gave him great satisfaction. I also accept that he gets pain on use of his left hand, which is activity-based, and he has lost the ability to perform gymnasium work in the manner he had previously performed. I also accept, in the foreseeable future, continuation of painful symptoms in his left hand, such that the effect of the pain and limitations of movement would inhibit upon his enjoyment of life. Ultimately, the question in this case is whether the consequences can be fairly described as being “more than significant or marked” or as being “at least very considerable”. In my view, the plaintiff has discharged the onus in this regard and leave will be granted as sought.
55 I will hear the parties as to any consequential orders.
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