Porto v Design Line Cabinets Pty Ltd (Deregistered) & VWA

[2012] VCC 1645

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-11-03133

GIUSEPPE PORTO	Plaintiff
v
DESIGN LINE CABINETS PTY LTD (Deregistered)	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2012
DATE OF JUDGMENT:	16 November 2012
CASE MAY BE CITED AS:	Porto v Design Line Cabinets Pty Ltd (Deregistered) & VWA
MEDIUM NEUTRAL CITATION:	[2012] VCC 1645

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:  Accident Compensation Act 1985, as amended – serious injury – partial amputation of the ends of the middle and ring fingers of the dominant right hand – paragraphs (a) and (b) of definition of “serious injury” – pain and suffering damages only – whether impairment and/or disfigurement satisfies the narrative test
Legislation Cited:  Accident Compensation Act 1985
Cases Cited: Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment:  Leave to the plaintiff to bring common law proceedings for pain and suffering damages in relation to his right-hand injury.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S J Carson	Maurice Blackburn Pty Ltd
For the Defendants	Mr M J Hooper	Lander & Rogers

HIS HONOUR:

Introduction

1 By way of Originating Motion dated 30 June 2011, Giuseppe Porto (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”) to bring common law proceedings to recover damages for injury to his right hand suffered during the course of his employment with Design Line Cabinets Pty Ltd (“the first defendant”) on 11 March 2005 (“the injury”).

2       The plaintiff seeks such leave to bring proceedings for “pain and suffering damages” only within the meaning of s134AB(37) of the Act.

3       The plaintiff gave evidence and was cross-examined.  Both parties tendered various documents.[1]

[1]See Annexure A

Relevant Legal Principles

4       The Court may not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]

[2]See s134AB(19)(a) of the Act

5       The plaintiff relies on paragraphs (a) and (b) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:

“serious injury means—

(a)   permanent serious impairment or loss of a body function; or

(b)   permanent serious disfigurement; or

(c)   ...

(d)   ... .”

6       The part of the body said to be impaired for the purposes of paragraph (a) is the dominant right hand.  Furthermore, the disfigurement said to be “serious” is the right middle and ring fingers (“the fingers”), which were partially amputated as a result of the injury.

7       In order to succeed, the plaintiff must prove, on the balance of probabilities, that:

(a)“the injury” was suffered in the course of or due to the nature of his employment with the first defendant on or after 20 October 1999;[3]

(b)“the injury” with its resulting impairment or disfigurement must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]

(c)the “consequences” to the plaintiff of “the injury” in relation to “pain and suffering” must be “serious” – that is:

“When judged by comparison with other cases in the range of possible impairments … or disfigurements [can be] fairly described as more than significant or marked, and as being at least very considerable”.[5]

The test for “serious” is sometimes referred to as the “narrative test”.

[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 at [11]

[4]See Barwon Spinners (op cit) at [33]

[5]See s134AB(38)(b) and (c) of the Act

8       In determining the application, the Court:

(a)must not take into account psychological or psychiatric consequences of “the injury”.  These can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”, and not for the purposes of paragraph (a) or (b);[6]

(b)must make the assessment of “serious injury” at the time the application is heard;[7]

(c)must give reasons which are as extensive and complete as the Court would give on the trial of an action, and, in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[8]

(d)notes that it has been asserted that the question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[9]

[6]See s134AB(38)(h) of the Act

[7]See s134AB(38)(j) of the Act

[8]See s134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at [89]–[92]

[9]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]

The Issues

9       Counsel informed the Court that there was no issue that the plaintiff had suffered a compensable injury with some impairment and consequences.  The issue between the parties was as to whether or not the consequences of any impairment, or the disfigurement, satisfied the narrative test – essentially it was that type of case referred to as a “range case”.

The Evidence of the Plaintiff

10      The plaintiff gave evidence that he had recently “looked through” his affidavits sworn on 21 February 2011, 20 January 2012 and 24 October 2012, and did not wish to alter any of the contents.[10]

[10]See generally T8 L25–T9 L6

11      The plaintiff also gave evidence that he hurt his finger “a day or two ago” when he was carrying a cupboard inside a house.  When the cupboard was put down, his right hand got caught underneath the cupboard, causing a cut just beneath where the stitches were inserted into his fingers.  Such incident has caused a degree of ongoing pain and has required the fingers to be bandaged and to be administered antiseptic cream.

12      He further gave evidence that he probably bumps one or other of the fingers at least once or twice a week.

13      After the completion of his evidence in chief, I requested an inspection of his hands in the presence of counsel, during which time I requested the plaintiff to make various movements with his right and left hands, and also asked some questions.

14      The plaintiff gave evidence that the pulps at the end of his fingers where they have been amputated do not have much sensation.  However, if he bumps the fingers on a piece of timber he gets “pain”.

15      By way of his first affidavit, the plaintiff gave the following evidence:

·     He is a forty-five-year-old (born February 1967) married man with two children.

·     He has completed an apprenticeship and is a qualified cabinetmaker.

·     He commenced employment with the first defendant in November 2003 as a cabinetmaker.  At that time he also had some concurrent part-time employment at Bunnings.

·     He is dominantly right-handed.

·     He describes the occurrence of his injury in the following terms:

“I suffered injuries at work on or about 11^th March 2005.  A co‑worker, Wes Kryskow, asked me to help with a computerised saw.  This was not the usual machine that I worked on and I was asked to assist by holding down a piece of laminate that was curling up.  To do this I held a block of wood on top of the laminate on the saw bench and Wes started the machine.  I was not used to this machine and when the saw started up a beam lowered onto my hand.  I was unable to get the hand free and the safety mechanism on the machine was not working properly so my hand remained caught as the blade came towards it.  I was shouting out to Wes to stop the machine.  Unfortunately, he did not do so in time and the saw partially amputated parts of the fingers of my right hand.”[11]

[11]Exhibit 1 at pages 11–12 PCB

·     He was taken to the Northern Hospital where his right hand and fingers were x‑rayed, after which he was sent home to return the next day to undergo surgery.

·     On 12 March 2005, the tips of the right middle and right ring fingers were amputated, with the nail beds being repaired.  A skin graft was taken from the right wrist to use on the fingertips.  He was discharged from hospital on 13 March 2005.

·     He attended the hospital as an outpatient, and in late April 2005 he was advised he was fit to go back to work.  He believes he resumed work with the first defendant on 2 May 2005 and also resumed his work with Bunnings.

·     On his resumption of work with the first defendant his duties were restricted, with limited use of the right hand, and in general his work was restricted to setting machines and doing some leading-hand or more supervisory type work.

·     In about 2006 the first defendant closed down its business and he was made redundant.

·     Since the closure of the first defendant, he has found alternative employment in the cabinetmaking trade and has adapted the way he works because of the injury.

·     He describes the various problems or difficulties with his dominant right hand to include making a fist and/or gripping or squeezing with the right hand; reduced sensation over the end of the middle and ring fingers, which makes it difficult to carry out fine tasks or use the right hand for extended periods of time; and clumsiness in the right hand, causing him to drop things or fumble with small objects.

·     He considers that he works more slowly than he did before, and has to be careful and deliberate about movements.  If not, he gets the fingers in the way without realising this, and sometimes suffers splinters and cuts without realising it until later.  He has also dropped and damaged expensive items or materials that had to be replaced.

·     Outside work, he is either limited or unable to carry out a number of pastimes that he previously enjoyed – for example, he was previously very keen on woodwork, and, although he is still capable of performing such activity, he is now much slower than he was prior to the injury.

·     He does not use the middle finger much, and tends to use the thumb and a forefinger and little finger, and tends to hold smaller items in his palm rather than with his fingers.  For example, he uses a shaver or cutlery with a fist rather than with the fingers.

·     In cold weather the hand will usually become “quite painful” and he now has to avoid riding a bike on cold mornings.

·     The cold weather is even more of a problem if he bumps or knocks the fingers even lightly – this is very painful if he picks up something the wrong way or knocks the tip of the finger.

·     He notes that there is a 5‑cm scar by 0.5‑cm wide where the skin was harvested, and that his fingers are disfigured.  He feels self-conscious about the appearance of the hand and/or fingers.

·     He no longer has any ongoing medical treatment for the fingers, but notes that the injury impacts on almost every aspect of his day-to-day life.

16      By way of his second affidavit, the plaintiff gave the following pertinent evidence:

·     He confirms that prior to the injury he loved woodwork and had made a chess board.  Since being injured he has attempted to make a backgammon board, but, due to difficulties with grip strength and chiselling, the board is half completed.

·     Prior to being injured at work he enjoyed riding his bike, and since the injury he does not ride his bike any longer, as he fears that he may not be able to use the right brake handle properly when required due to the loss of flexibility and strength in the fingers.

·     He is also guarded with the use of his right hand for fear of further injuring it.

·     In or about 2004 (prior to his injury), he joined a tenpin bowling club with his son and played competitive bowls as part of the Simpson League in Keon Park.  Such activity involved about three hours of training and competition time a week, and he found it a great way to spend time and bond with his son.  Since the injury, he has been unable to use his right hand to bowl, and generally does not go bowling any longer.

·     Prior to his injury, he would perform the maintenance of the garden, including weeding, and now finds that it is difficult for him due to his loss of grip strength in his right hand.  Furthermore, because of the loss of sensation in his injured fingers, he is apprehensive of picking weeds with his right hand for fear that he may further injure himself without realising it as a result of prickly or stubborn weeds.  He also finds that the vibrations of the “whipper snipper” and lawnmower cause irritation of his right hand, right middle and right ring finger problems.

·     Prior to his injury, he used to go fishing, particularly at Rosebud, Mornington, and Dromana piers, where his family would go fishing.  He used to enjoy going fishing with his father-in-law and son, but is unable to do this activity now because he finds difficulty in tying knots in the fishing wire to secure the bait as a result of the loss of flexibility in his right, middle and ring fingers.

17      By way of his third affidavit, the plaintiff gave the following pertinent evidence:

·     He found further employment in 2006 with ITV Cabinets and worked there for a couple of years before obtaining employment with Isola Kitchen Designs in Epping.

·     When working at ITV Cabinets he “coped reasonably well” but worked far too slowly to achieve the desired results.

·     His ability with fine movements and the handling of small items such as screws is limited, and he tends to be clumsy and drop things.  Because of this he has to work slowly and deliberately.

·     He lost his employment with Isola Kitchen Designs in May 2012 and was told that his work rate was too slow.

·     He found employment with Grand Kitchen Commercial Interiors within a day or so of leaving Isola.

·     He continues to have the same problems with his hand and fingers as described in his previous affidavits, and has noticed some cracking of the skin at the site of the amputations, and is using some moisturiser to see if this will help the situation.  He also had a fingernail, or what was left of it, fall out altogether, and this is now growing back.

·     He is not having any ongoing or regular treatment, as it is more a case of trying to be aware of the limitations of the hand at all times and being careful not to bump the fingers.  If he does bump the fingers he gets a sudden sharp pain that slowly reduces over a couple of hours or so.  Being right-handed means that he does this far more often than he would like, no matter how careful he is.

·     He believes that his skill level has dropped away due to the injury, and he is losing income as a result.

18      The plaintiff also relies on the affidavit of his wife, Maryanne Porto, sworn on 20 January 2012.  In that affidavit, Mrs Porto deposes that since the injury in 2005 she has witnessed changes in the social, domestic and family life of the plaintiff.

19      In particular, she describes how the plaintiff would like to cook at least twice a week, and in particular bake traditional Italian foods for family and friends on special occasions such as Easter or Christmas.  Such food preparation would involve kneading dough for home-made pasta and pizza.  The plaintiff would also assist his wife with making Italian pastries and other family recipes.

20      Since being injured, the plaintiff generally does not cook any more or assist her in such tasks.  He has a fear of knocking and further injuring his fingers if he tries to do such activities.

21      Prior to the injury, her husband would assist her around the house, particularly doing the dishes and packing them away, and she now finds that the plaintiff relies on her to solely perform those tasks, as he is apprehensive of using his right hand for fear of further injuring himself should he knock it on a hard surface.

22      Under cross-examination, the plaintiff gave the following pertinent evidence:

·     When employed by the first defendant, the plaintiff worked Monday to Friday from 7.00 am to 3.30 pm.

·     When he originally commenced employment with the first defendant his duties involved putting cabinets, counters and different things together, and he was taught how to use a beam saw and later how to use a point-to-point machine which involved computerisation.

·     Prior to the injury on 11 March 2005, his work involved putting cabinets and the like together, which required him to use staple guns, a cordless drill to insert screws, and on occasions such hand tools as hammers, chisels, files, mallets, and sometimes manual screwdrivers.

·     He resumed employment with the first defendant on 2 May 2005, about seven or eight weeks after the injury.

·     After about a month back at work he resumed normal duties (most probably by 11 June 2005).

·     Since then, he has performed normal cabinetmaking duties with different employers over the last seven-and-a-half years.

·     At the time of the injury, he was working at Bunnings two days a week – on Wednesday nights for 3 hours, and on Sundays for 7½ hours.

·     Before the injury, his employment duties with Bunnings involved “picking orders, custom orders, putting stock away – timber, melamine boards”.  In particular, the plaintiff described such duties to involve:

“Melamine boards, like, they come in a big pack of wide melamine, then we unpack it, put it back on to the shelves, we do the same with pine, treated pine, normal structural pine, PVC piping.  Drove the forklift as well, putting concrete away.”[12]

[12]T 14, L26-30

·     He also worked as a sales assistant serving the public.

·     After the injury he resumed work with Bunnings initially on light duties, and thereafter he was moved out of timber into the plumbing department.  He believes he moved into the plumbing department in early 2006.

·     When he initially resumed in the timber department he was given two people so he could effectively use one hand, as he had bracing over the fingertips on his damaged hand.  In circumstances where he grabbed the bottom of the timber it was not going to cause actual pain because of the hard plastic over his fingertips.

·     He continues to work in the plumbing department, and made the following comments:

“Yes, that’s correct  ... [working in the plumbing department] ...  They - they considered plumbing a little bit easier, lighter duties.  I can do different jobs with my left hand instead of using my right hand to put stock away because they’re smaller - smaller products.”[13]

[13]T 15, L16-20

·     He continues to work 10 hours a week with Bunnings and his duties are “not protected at all”.  He served customers and puts stock away.

·     The first defendant closed down in 2006, after which he commenced work with ITV Cabinets, and the work was “slightly different”, as he was more of a machinist there and more of a machinist/foreman.  He again was working from 7 am to 3.30 pm with some occasional overtime.

·     As a machinist, he performed cutting jobs on a panel saw which involved melamine particle board for doors and panels.  Although he still did some work with hand tools, not as much as he was performing with the first defendant.

·     Although he coped reasonably well with that work, he still always had the “pain there”, and on cold mornings he “suffered a lot”.

·     He experiences pain in his fingers when there is cold weather or if he bumps or knocks the fingers.  In particular, the plaintiff gave the following evidence:

HIS HONOUR: 

Q:“I just want to be clear about this.  By that, and I’m not saying this is the case, I just want to know whether I’ve got this right, are you saying that by sitting here right now the fingers aren’t painful per se, is that right?‑‑‑

A:No, they’re not.

Q:But if on a cold morning is it when you wake up or just because the fingers are stiff, or how do you see it?‑‑‑

A:Well, when I wake up they’re fine.  As soon as I walk outside and I get that cold breeze I feel a lot of pain.

Q:Do you feel it on the pulp or feel it in the finger?‑‑‑

A:Yes, on the - on the actual tips of the fingers, yeah.

Q:On the pulp ‑ ‑ ‑?‑‑‑

A:That’s correct.

Q:So that can give rise to pain or discomfort?‑‑‑

A:That’s right.

Q:And the other scenario is where you actually knock the pulp or the end of the fingers while you’re performing some sort of work, is that right?‑‑‑

A:That’s correct.

Q:Yes.  I have heard comment I think somewhere, in the opening maybe, but tell me if I am right, do you use vibrating tools when you work?‑‑‑

A:Yes.  Well, when - vibrating, when we use a nail gun, when you’re shooting it actually bounces back on you.

Q:How do you cope with that, does that cause you any trouble at all?‑‑‑

A:Most times, but I have to live with it.  That’s the only thing I know how to do.  The only thing that we use.  Even our drills we’ve got impact drivers and that sort of - with this kind of effect.  The same thing.”[14]

[14]T 17, L13 – T 18, L7

·     When he commenced to work with Isola Kitchens in the second half of 2007 he worked a 40‑hour week and continued his work at Bunnings.

·     His main role was to unload packs of board from trucks by way of operating a forklift.  He would perform the ordering of stock and occasionally perform work on a bench putting cabinets together.  He had no difficulty driving a forklift.

·     He has no difficulty driving a vehicle, using his keys, and opening doors, although he is “cautious” as he opens doors, as he does not want to get his hand and fingers caught underneath the handle.

·     It is of no assistance wearing gloves because he is yet to find a glove that is going to keep his fingers warm but still allow him to have “feeling” when performing his work.

·     When working on benches at Isola Kitchens, he continued to use tools such as drills, staple guns, and computerised machines.

·     He left his employment with Isola Kitchens because he was told he was “too slow” in his work.

·     He commenced employment with Grand Kitchen Commercial Interiors and is presently employed by Grand Kitchen Commercial Interiors for 38 hours a week.  In relation to his duties at Grand Kitchen Commercial Interiors, the plaintiff gave the following evidence:

Q:“And your tasks at Grand Kitchen, I think you’ve just mentioned, when you were talking impact drivers and nail guns, is that, you mean that’s some part of your work now?‑‑‑

A:Yes.

Q:What else do you do at Grand?‑‑‑

A:That’s every day now.

Q:That’s every day?‑‑‑

A:Every day.

Q:Using a nail gun and an impact driver?‑‑‑

A:Nail gun, impact drivers.  We use a lot of air tools here, drills, and again, once we use the air drills because the air’s cold, my fingers start to ache again.  Like, I’ve actually got a heat gun next to my bench that I have heating them up, once - once they’re warm the pain goes away.

Q:What other tasks do you do - what do Grand Kitchens make, is it cabinets?‑‑‑

A:Cabinets.

Q:Cupboards and benches?‑‑‑

A:Same thing.

Q:Same stuff, yes?‑‑‑

A:More for the commercial side of things, mainly more for your high-rise buildings.

Q:Did you say that you also - do you work in a factory or on site or both?‑‑‑

A:I do both, with Grand, with Grand Kitchens.  I do both.  I work out in the factory and then he wants to teach me back, the days that I used to do it, same thing, he wants me to go out on site and do the fitting on site as well.

Q:So you’re actually installing the cabinets that you’ve just made in the factory?‑‑‑

A:That’s correct, that’s correct.

Q:What does that installation work involve?‑‑‑

A:Unloading trucks, loading the truck, bring it all in the house.

Q:So you carry the cabinet or whatever is being installed inside?‑‑‑

A:Carry the cabinets.

Q:To the place it’s going to be installed?‑‑‑

A:That’s correct, yep.  It depends on our days.  If we got - if there’s three of us that go I mainly stay inside repairing ... [preparing] ... the job, levelling off, and then the other two actually unload the truck and that’s the way he normally does it for me, well, knowing - knowing my injuries.  He sort of says, ‘I’ll give you the extra person so you just have to concentrate on that and one of the younger boys can unload the truck for you’.

Q:That would probably happen whether you’re injured or not, wouldn’t it, as you get a bit older or more senior?‑‑‑

A:Well - well, yeah, sometimes you - sometimes.

Q:Give the hard work to the young and fit ones?‑‑‑

A:Yeah.”[15]

[15]T 20, L25 –T 22, L3

·     The work involving “levelling off” involves making sure the base on which the cabinets are to be situated is level.  He uses drills and screwdrivers to affix cabinets to the areas where they are to be situated.  He also uses other hand tools like a buzzing machine or a jigsaw to cut the holes out for sinks, hot-plates and vanity basins.

·     When using the jigsaw, the blade goes up and down.  That causes vibration, which, although it does not cause him pain, does cause him a lot of discomfort.

·     When asked to explain what he meant by “discomfort”, he described the sensation as “annoying”.

·     When he feels pain or discomfort either on cold mornings or when he strikes the pulp of his finger, he avoids taking medication, as he does not like tablets.

·     When he lifts a cabinet he tends to use his little finger and first finger, which carries much of the weight.  Although he accepted that in the trade of cabinetmaking things can drop on hands and cause pain, the discomfort and pain is worse in the area of his damaged two fingers if something drops on those fingers.

·     For the financial year ending 30 June 2004 he agreed that his gross income from personal exertion was $41,128 made up of about $21,000 from Bunnings and $20,000 from the first defendant.  For the financial year ending 30 June 2010 his gross income from both jobs was $70,863, and for the financial year ending 30 June 2011, $69,492.

·     He smokes cigarettes, which he holds between his forefinger and index finger of his right hand.

·     Since the injury, he has adapted the way he performs his work by going slower and using three fingers instead of all five of his right hand.  In particular, when queried whether this is “all the time”, the plaintiff gave the following evidence:

A:“Yes.  When I use the drill I have to hold it like that because there is no other way but every other way I try to use these.  It is very uncomfortable in trying to do anything.

Q:You said though that when you are lifting things sometimes you do use all the fingers on your right hand?‑‑‑

A:Occasionally I might do but because I do it subconsciously, I always have my hand like that.

Q:You have shown His Honour just before when we were up at the Bench that you can make a fist with your right hand?‑‑‑

A:Not a full fist, yeah, but yeah, I can do a fist.

Q:It was very close to what you are able to do with the left hand, wasn’t it?‑‑‑

A:I wouldn’t say very - yeah, it was close, but not - yeah.

Q:Close but not 100 per cent tight closed fist?‑‑‑

A:That’s right.  Yeah.

Q:When you use a razor at home to shave, is it true that you still hold it with a fist rather than in any other way?‑‑‑

A:Yeah, I do it like that.  (Demonstrating.)

Q:Is that always, every morning or every time you shave?‑‑‑

A:Every time I shave.  I try not to shave too often but yeah, every time I shave.  Yeah.

Q:What about with cutlery, do you use a fist to hold cutlery?‑‑‑

A:Now I’m slowly learning to use it the proper way but in the beginning for the last, yeah, probably six years or so I was doing it that way.

Q:But now you are able to use it in the way that most people use their knife and work?‑‑‑

A:Yeah. Pretty close to it, yeah.”[16]

[16]T 26, L25 – T 27, L21

·     In cold weather the pain is in the fingertips of the middle or ring fingers.  He has a heat gun at work to warm his fingers in cold weather to avoid the pain.

·     It is not a problem in summer, and in spring and autumn it depends on whether the day is a cold day or not.

·     When the fingers warm up, the pain goes away, although that could be halfway through the day.

·     Air-guns and air-drills have got cold air, and he does use those in his present job at the factory.

·     He is on site, maybe once a week, once every two weeks, once a month.  It depends on the workload.

·     In relation to bike riding, he performed such activity in Christmas 2004 prior to the injury when situated at their then beach house in Rosebud.  He would also ride about once a month around the block with his children.  He considers that it may be “possible” to ride the bike on a warm day.

·     He still has a bike, and the bike does have a brake on the left-hand side as well, but he is wary of using such brake, as the brake only operates on the front wheel, which may cause him to tumble over.  He can operate the brake on the right side by making a fist and curling the fingers around the brake.

·     He started tenpin bowling with his son about one year prior to the injury, and, although he has been bowling since the injury, he can only bowl by holding the ball in his palm and throwing the ball.  He has difficulty putting his fingers into the holes in the bowling ball, and has difficulty holding them, because he has no sensation.

·     His son was then aged fourteen but is now twenty-two years of age.

·     He accepted that it is “possible” that if he used gardening gloves that would stop him getting prickles from the weeds.

·     He and his wife maintain the garden.  He is involved in lawn cutting.

·     Prior to the injury, he would go fishing about once a month – or at least those times when he used to attend the Rosebud beach house.  Such fishing was done off a pier.

·     Since the injury, he has tried fishing over the last seven-odd years, because his son liked to fish.  His son would take care of the rods and baiting.

·     His son is no longer interested in going fishing, and does other things.

·     He used to go fishing with his father-in-law, but that has come to end because his father-in-law no longer wishes to go fishing.

·     However, he would still like to go fishing, and has had offers from other people where he has had to say no.

·     Before the injury, he would cook the family dinner at least twice a week, and never cooks meals now.  He did try it once, after the injury, but has difficulties with dough.

·     His wife does not work now.

·     He accepted he could use a rolling-pin and roll dough.

·     He does not wash dishes or pack away crockery because he finds it difficult holding a plate.

23      By way of re‑examination, the plaintiff gave the following pertinent evidence:

·     He uses the heat gun on cold days to warm his fingers at least every ten to fifteen minutes.

·     The heat gun is used normally to melt glue on edging so that such edging can be placed on top of particle board.

·     In the plumbing department of Bunnings he handles PVC pipe, bigger pipe fittings, which are not heavy and not hard to pick up.  The PVC connections are bigger, and he can usually use his left hand.

·     Whereas when working at Isola he was taking home $1,100 per week, he is presently taking home $800 a week.

·     In particular, the following evidence was given:

“I am just not clear, are you saying that your present job, you only got that because that was the only job offered to you or - I am just not quite clear?‑‑‑Yeah, at the time because every place I went to they didn’t have any vacancies or they didn’t have enough work, it’s very difficult out there at this time of the year, so it’s mainly ‑ ‑ ‑

I understand that.  So the point I am making though is if a job came along more as a cabinet maker, a bit like you had been doing in the past, would that be something you would consider?‑‑‑Yeah, I would look into it.  If I’ve got less hands on I’d prefer that for the simple reason I’m always afraid of knocking them or - yeah, that’s my main fear.”[17]

·     “Occasionally” he gets melamine splinters into the tips of his fingers and does not realise he has a splinter until some time later.

[17]T 38, L4-16

The Medical Treatment of the Plaintiff

24      The plaintiff relies on a report dated 23 April 2007 from Dr Ian Brand of the Northern Hospital.[18]  The plaintiff was taken to the Emergency Department of the Northern Hospital on 11 March 2005, at which time an x‑ray of his right hand stated:

“Amputation of the distal phalanges of the middle and ring fingers.  Allowing for the limited views through the back slab, no other bony or joint abnormalities are detected.”

[18]See Exhibit 2 at page 29 PCB

25      He was discharged on Keflex to return to the hospital on the following day for surgery.  On 12 March 2005, he underwent amputation of the tips of the right middle and right ring fingers, with debridement and nail-bed repairs.  Both nail beds were repaired, and local ulnar-based neurovascular flaps were raised and rotated to cover the bone on both digits.  A full-thickness bone graft on the volar aspect of the right wrist was used to cover the defect.

26      The plaintiff was discharged from hospital on 13 March 2005, and on 17 March 2005 he was noted to have an excellent result, and on 22 March 2005 the sutures were removed.

27      He attended the Emergency Department of the hospital on 21 March 2005 complaining of numbness in the fingertips of the damaged fingers, but examination revealed such fingers were healing well and were well perfused, although painful to touch.

28      On 31 March 2005, it was noted that his condition was “excellent”, and on 26 April 2005 it was noted that his surgery was well healed, and he was advised to return to work on light duties.

29      On 24 May 2005, it was thought he may be developing carpal-tunnel syndrome, and it was noted that he had returned to work on normal duties.  On 5 July 2005, it was noted that his carpal-tunnel symptoms were resolving, and he was discharged from the clinic.

30      Dr Brand commented that from the medical records the plaintiff would seem to have a normal capacity for work and a good prognosis.

Medico-Legal Reports

31      The plaintiff relies on the following medico-legal reports from the following doctors:

(a)The plastic and reconstructive surgeon, Mr E John Anstee, who examined the plaintiff on 28 August 2007;[19] and

(b)The hand surgeon, Mr D Ireland, who examined the plaintiff on 19 September 2012.[20]

[19]See the report dated 7 September 2007, Exhibit 2, at page 31 PCB

[20]See report of same date, Exhibit 2, at page 37 PCB

32      Mr Anstee seemingly examined the plaintiff on behalf of the agent of the second defendant in order to provide an AMA assessment.  At that examination, the plaintiff complained of the following:

(a)The fingers being tight when he makes a fist;

(b)Reduced sensation over the distal pulps of the right middle and ring fingers;

(c)Less efficiency at fine manipulative tasks;

(d)An inability to ride a bicycle on cold mornings because of pain in the right hand;

(e)Aching in the right hand during cold weather or in a cold environment;

(f)Tenderness in the fingers if knocked;

(g)The bone of the distal phalanx of the right middle finger has insufficient padding and is very tender;

(h)Right-handed tasks are more difficult, and some are impossible.

33      Mr Anstee found the plaintiff to be a cooperative man who did not seem to be exaggerating his problems.  Mr Anstee noted a small scar on the volar aspect of the right wrist consistent with a skin graft.  Furthermore, he had abnormal motion of the ring and little fingers, together with reduced sensation in the tips of such fingers.

34      When examined by Mr Ireland, the plaintiff complained of the following:

(a)Decreased sensation in the tips of the injured right ring and little fingers;

(b)Pain in the fingertips with cold temperatures (the pain diminishes when the fingers warm up);

(c)An uncomfortable sensation when using vibrating power equipment such as power tools and lawn mowers;

(d)That he tends to bypass his ring and middle fingers in favour of the uninjured index and little fingers.

35      The plaintiff also informed Mr Ireland that he was concerned at the cosmetic appearance of his injured fingers and dystrophic fingernails.

36      On direct questioning, the plaintiff informed Mr Ireland that he has not received any treatment for his current symptoms and that he attends to all the normal household maintenance chores.  He drives his automatic car without difficulty and smokes ten cigarettes a day.  He did state that he was unable to ride his bicycle due to pain caused by cold temperatures, and that his hobby operating a wood lathe at home has stopped since the injury due to diminished grip strength and fear of getting splinters due to decreased sensation.

37      Mr Ireland noted that the plaintiff presented as an “honest reporter” and showed no tendency to exaggerate his symptoms.

38      Examination of the right hand revealed an obvious shortening of the middle and ring fingers with an obvious dystrophic nail attached to the tip of the middle finger.  Measurement revealed that there was a loss of length of the middle finger of 11 millimetres, and the ring finger of 7 millimetres.  There were barely detectable scars on the pulps and radial sides of the affected digits consistent with a long radial-based neurovascular ulnar-flap on both digits.  The skin over the skin graft at the defect and the flap on the middle finger was cracked and dry but not ulcerated.  There was a healed scar 2.5‑centimetres long between the wrist flexion creases which was non-adherent, non-hypertrophic and non-tender.

39      Sensation was tested by two point discrimination.  An active range of motion in the right hand was measured by goniometer.  The only joints with restricted motion in the whole hand were the distal joints of the ring and little fingers.

40      After obtaining a history and making an examination, Mr Ireland stated:[21]

“The diagnosis is fingertip amputation ring and middle fingers right dominant hand with dystrophic nails at both digits.  Diminished sensation in the pulps of the affected fingers and unstable skin over skin graft area of the middle finger.

...

I believe Mr Porto would benefit from further treatment to surgically excise the dystrophic nails at both the ring and middle fingers.  This will require surgical excision of the germinal matrix which may require two or three attempts to remove all of this material.  This would render the digits less prone to repeated trauma.  He would also benefit by using moisturising cream on the affected skin grafted area on the radial side of the middle finger and should use a conforming customised glove to the right hand when working.”

[21]Exhibit 1 at pages 39-40 PCB

41      It was common ground between the parties that the plaintiff had decided that he would undergo no further surgery to the fingers.

Analysis of the Evidence

42      I find that the plaintiff suffered injury to his right hand, and in particular the partial amputation of the tips of his right middle and ring fingers, during the course of his employment with the first defendant on or about 11 March 2005.  Furthermore, I find that such injury has resulted in some permanent impairment of the right hand with some organic consequences and some permanent disfigurement of the right hand (in particular the right middle and ring fingers).  So much is not disputed by the defendants.

43      I also find that the plaintiff is a witness of credit who was attempting to give honest and accurate answers to the questions put to him.  I note that both Mr Anstee and Mr Ireland commented that the plaintiff showed no tendency to exaggerate his problems or symptoms.

44      The issue is whether such organic consequences and/or the disfigurement of the right hand satisfy the requirements of the narrative test.

45      I am assisted in determining this issue by the following decisions:

(a)In Sabo v George Weston Foods[22] the Court of Appeal (consisting of Neave and Mandie JJA) stated:

“In considering whether Mr Sabo impairment is ‘at least very considerable’ weight must be given to the adverb ‘very’. As Callaway JA said in TAC v Dennis:

‘Many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable.’ ”

[22][2009] VSCA 242 at [73]

(b)I refer to Sumbul v Melbourne All Toya Wreckers Pty Ltd[23] wherein Chernov JA stated:

“If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable.’ ”

These words were later clarified by Ashley JA and Beach AJA in Stijepic v One Force Group Aust Pty Ltd[24] wherein they stated:

“[I]t is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”

(c)I also refer to Dwyer v Calco Timbers Pty Ltd (No 2)[25] wherein Ashley JA stated:

“I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider 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 an extent, by what is retained.”[26]

(d)I refer to Haden Engineering Pty Ltd v McKinnon[27] where Maxwell P stated:

“[T]he ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.  ...

[23][2006] VSCA 292 at [24]

[24][2009] VSCA 181 at [47]

[25][2008] VSCA 260 at [27]

[26]See also Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at [44]; Sabo v George Weston Foods [2009] VSCA 242 at [60]

[27](2010) 31 VR 1 at [9]–[11]

The experience of pain

As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.

The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a)what the plaintiff says about the pain (both in court and to doctors);

(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);

(c)what the doctors say about the extent and intensity of the plaintiff’s pain; and

(d)what the objective evidence shows about the disabling effect of the pain.”

Perhaps it is also important to note some later comments of Maxwell P who, after approving the comments of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2),[28] stated:

“[T]he cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.”

However, it is to be noted, as pointed out by Tate JA in Sutton v Laminex Group Pty Ltd,[29] the question must always be:

“ ‘What is the plaintiff stoical about?’ It remains necessary to establish that the plaintiff is stoical about pain and suffering that is more than ‘marked’ or ‘significant’.”

[28]Op cit at [3]

[29](2011) 31 VR 100 at [81]

46      I make the following further findings:

(a)The plaintiff is a forty-five-year-old married man who is dominantly right-handed;

(b)The plaintiff is a qualified cabinetmaker, and commenced employment as a full-time cabinetmaker with the first defendant in or about November 2003.  At that time he also had some concurrent part-time employment with Bunnings;

(c)At the time of his injury, his work with the first defendant involved putting cabinets and the like together, which required him to use staple guns, a cordless drill to insert screws, and on occasions such hand tools as hammers, chisels, files, mallets and manual screwdrivers;

(d)Leading up to the injury, he was also working at Bunnings two days a week – on Wednesday nights for 3 hours, and on Sundays for 7½ hours – in the timber department.  His duties at that time involved him packing, unpacking and manoeuvring timber and PVC piping.  He also drive a forklift for storing concrete away;

(e)The plaintiff underwent surgery on 12 March 2005 for amputation of the tips of the right middle and right ring fingers, with debridement and nail bed repairs.  Such surgery involved a full-thickness skin graft from the volar aspect of the right wrist;

(f)The plaintiff resumed employment with the first defendant on 2 May 2005 on limited duties, but resumed normal duties from probably about 11 June 2005;

(g)He also returned to his employment with Bunnings, initially on light duties in the timber yard, and then was transferred to the plumbing department where he continues to work 10 hours a week.  His duties with Bunnings are “not protected at all” and involve serving customers and putting stock away.  The plaintiff considers, and I find, that the work in the plumbing department is a little bit easier and lighter, and he can involve his left hand more to put stock away, as generally the stock is smaller;

(h)The plaintiff continued employment with the first defendant to 2006 when the business of the first defendant closed down, after which the plaintiff commenced with ITV Cabinets as a cabinetmaker, with the work being “slightly different”, as he was involved with performing machinist work and some work with hand tools (but not as much as with the first defendant);

(i)The plaintiff then commenced work with Isola Kitchens in the second half of 2007 and his work involved the ordering of stock, occasionally performing on a workbench putting cabinets together, and driving a forklift to load and unload packs of board.  When working on benches at Isola Kitchens he continued to use tools such as drills, staple guns and computerised machines.  He left his employment with Isola Kitchens because he was told he was “too slow” in his work;

(j)The plaintiff then commenced employment with his present employer, Grand Kitchen Commercial Interiors, where he is employed full-time, where his employment duties involve making cupboard and benches for kitchens at the factory, and also placing such completed objects on site.  His work does involve the use of a lot of air tools involving drills and other hand tools;

(k)For the financial year ending 30 June 2004, he had gross earnings from personal exertion of $41,128 (made up of earnings from both the first defendant and Bunnings), for the financial year ending 30 June 2010 his gross income from both jobs was $70,863, and for the financial year ending 30 June 2011 his gross earnings from both jobs was $69,492;

(l)In particular, I do find:

(i)     That although the plaintiff is capable of performing cabinetmaking work, as demonstrated over the years since the injury, he works in a slower fashion reflecting his diminished feel in the damaged fingers and his attempts to protect his fingers from being knocked or further damaged;

(ii)    When using vibration-type tools such as a buzzing saw or jig saw, such vibration causes him discomfort which he finds “annoying”;

(iii)   When he strikes the pulp of either damaged finger or on cold mornings (or when exposed to cold air by one of the tools) he feels sharp pain and discomfort in the fingers.  I accept that he uses other equipment at his workplace to warm up the damaged fingers and so relieve the pain in the fingers when they are exposed to coldness.  It may take anything from a couple of hours to half a day for the pain to be relieved;

(iv)   That he suffers a loss of sensation in the tips of the damaged fingers which impacts on how he goes about his work, and that he may cause damage to such tips of the fingers without realising that such damage has occurred;

(v)    When carrying any particular object which involves the use of the right hand, he tends to use either his palm or his three non-damaged fingers.

(m)The plaintiff has difficulty performing certain cooking activities, such as kneading dough, performing some aspects of fishing such as threading lines etc, and is only capable of holding a tenpin bowling ball in his palm, without placing fingers in the bowling ball.  Furthermore, I accept that the plaintiff would be inhibited in riding his bike on cold mornings;

(n)The plaintiff has had no treatment in relation to his right hand for many years, and does not take any medication to control any pain that he may suffer in the fingers.  He is able to drive a car with little or not difficulty, hold cigarettes and keys in his right hand, open doors with his right hand, and is now capable of using cutlery in his right hand in a virtually normal way.  Furthermore, he accepts that he can nearly make a full right fist with his right hand (as he demonstrated to the court);

(o)I accept the evidence of Mr Ireland that the amputation of the fingers has resulted in a loss of length of the middle finger of 11 millimetres and of the ring finger of 7 millimetres.

47      After a consideration of all the evidence, I consider this matter a borderline case, but am ultimately persuaded that the “pain and suffering consequences” suffered by the plaintiff, “when judged by comparison with other cases in the range of possible impairments, can be fairly described as more than significant or marked, and as being at least very considerable”.

48      I have reached this conclusion for the following reasons:

(a)Although I have found that the plaintiff is capable of performing cabinetmaking work (as demonstrated since the occurrence of the injury), the plaintiff is now slower in performing such work, has lost the sense of feel in the two damaged fingers when performing such work, has difficulty in fine and manipulative work using the right hand, and difficulty carrying various objects where the right hand is required;

(b)If he knocks his two damaged fingers either at work or in any other activity, he experiences sharp pain in the damaged fingers which can last up to half a day.  Because of the lack of feeling in the pulp of the fingers, and the type of work that he is performing, such fingers are knocked on a reasonably regular basis;

(c)On cold mornings and also when using tools involving cold air (as he does in his present employment), the plaintiff also experiences pain in the damaged fingers to the extent that he requires to use hot-air tools to alleviate the pain in the fingers;

(d)In day-to-day activities, he has to be mindful how he employs his right hand to avoid knocking the fingers, lifting objects or using objects in his right hand such as a shaver;

(e)There is no dispute that he suffers such symptoms, and it is to be remembered that such symptoms and consequences will continue in the foreseeable future.  In this respect I note he is relatively young at forty-five years of age.

49      Some of the consequences referred to above, taken individually, may not satisfy the narrative test.  However, viewed collectively, the consequences, in particular pertaining to the pain in the fingers when exposed to cold air or being knocked, satisfy, in my view, the narrative test.

50      Again, although I consider it may well be a consequence of the damage to the fingers that the plaintiff has difficulty with tenpin bowling, fishing, or riding a bicycle, such consequences, although being part of the overall “picture”, do not in themselves constitute a serious injury.

51      Although put as a “lesser option”, I find that although there clearly has been some degree of disfigurement in the right hand which may be described as “marked”, given the clear loss of length of the fingers, I am not satisfied that such disfigurement can be fairly described as more than significant or marked and as being at least very considerable.  In making such a finding, I am conscious of the unchallenged evidence that the plaintiff does feel “self-conscious about the appearance of the hand and/or fingers”.

52      Clearly enough, there is shortening of the two fingers and an unattractive nail attached to one of the fingers.  However, the amputations are limited to the tips of the fingers.

Conclusions

53      Accordingly, I grant leave to the plaintiff to bring common law proceedings in relation to his right-hand injury suffered by him during the course of his employment on or about 11 March 2005.

54      I will hear the parties on the question of costs.

ANNEXURE ‘A’

1       The plaintiff tendered the following material:

(a)Exhibit 1 – Affidavits of the plaintiff sworn 21 February 2011, 20 January 2012 and 24 October 2012, and an affidavit of Maryanne Porto (the wife of the plaintiff) sworn 20 January 2012.  All such documents are found at pages 10-20 of the Plaintiff’s Court Book (“PCB”).

(b)Exhibit 2 – Medical report from the Northern Hospital dated 23 April 2007, medical report from the plastic surgeon Mr J Anstee dated 7 September 2007, and report from the hand specialist Mr D Ireland dated 19 September 2012.  All such documents are found at pages 29-40 of PCB.

2       The defendants tendered the following material:

Exhibit A – Certificate of Capacity dated 24 May 2006, found at page 6 of the Defendants’ Court Book (“DCB”).

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