Pretty, Brett v PMP Print Pty Ltd

[2009] VCC 1497

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-08-04844

BRETT PRETTY	Plaintiff
v
PMP PRINT PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2009
DATE OF JUDGMENT:	11 September 2009
CASE MAY BE CITED AS:	Pretty, Brett v PMP Print Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 1497

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 –s.134 AB serious injury – whether hand injury constitutes permanent serious disfigurement and/or permanent serious impairment – credit of plaintiff in issue.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Philbrick SC with	Slater & Gordon Ltd
Mr G Chancellor
For the Defendant	Mr R Meldrum QC with	Thompson Playford Cutlers
Ms P A Cefai
HIS HONOUR:

1          In this application, the plaintiff seeks leave to commence proceedings claiming damages for the pain and suffering consequences suffered by him as a result of an incident which occurred in the course of his employment with the defendant on 26 June 2002 in which his right hand was caught in a printing press. As a result of the incident the plaintiff suffered a crush injury to his hand involving his middle, ring and little fingers.

2          In bringing the application, the plaintiff asserts that the injury he has suffered to his right hand constitutes both a permanent serious impairment or loss of the function of his right hand, together with a permanent serious disfigurement as defined by the provisions of the Accident Compensation Act 1985 (“the Act”).

3          In support of this application, the plaintiff relies upon two affidavits. In his first affidavit, sworn 25 June 2008, the plaintiff deposes:

•  That he was born on 3 March 1965 and that he was then employed as a storeman, driving forklifts;

•  That he was injured on 26 June 2002 when his right hand was caught between rollers of a printing unit. Although the unit was shortly thereafter stopped, the plaintiff said that all of the flesh was torn from his right middle, ring and little fingers;

• That in treatment of his injuries the plaintiff underwent an initial debridement which was undertaken by Mr S Tham. Thereafter, further procedures were undertaken by Mr Tham on 28 February 2003, 24 July 2003 and 4 September 2003;

•  That prior to injury the plaintiff enjoyed a number of sports which included tennis, football, basketball, golf and fishing. The plaintiff said that by reason of his injuries, he could no longer grip a tennis racquet properly as it slipped in his hand, he was unable to play football or basketball anymore, and that when playing golf he tended to “lose the golf club out of his hand” in the course his swing. He said that he had lost all confidence in his grip. The plaintiff said that since the incident he had taken up smoking up to 25 cigarettes a day, that he had become depressed, had commenced consuming alcohol in excessive quantities and had engaged in risk taking behaviour which had resulted in him being charged with assault and losing his licence for drunk driving. He described himself as being short tempered and angry;

•  That the effect of the injury upon his hand was that:

ƒ	he no longer had feeling in the tips of his right middle and ring finger or his little finger;
ƒ	his little finger was permanently clawed;
ƒ	he had difficulty holding onto things, particularly in cold weather;
ƒ	he suffered from cramps in his hand and intense pain in cold weather;
ƒ	he had general impaired grip strength; and
ƒ	he was confined to employment involving light forms of manual work.

4          In a further affidavit sworn 23 July 2009, the plaintiff said that:

• He had lost his position with Toy Kingdom when that organisation closed down. Whilst he had thereafter sought lighter labouring work, following the death of his father in September 2008 he had spent a considerable amount of time on the family dairy farm assisting his mother;

• He did as much farm work as he could manage but that his right hand tended to cramp and become sore with increased activity. He described the impaired sensation in his three fingers as causing problems which included often sustaining cuts of which he was unaware until he observed the presence of blood. He described problems gripping things such as saws and hammers and having to work in short bursts because of cramping and tiredness in his hand. He said that he could only trust the thumb and index fingers in his right hand as his other fingers might give way when lifting or gripping;

• He had particular problems with his little finger which was permanently bent and in this position it often became caught on objects or got in the way. He described his little finger as being a constant nuisance, and said that it was his intention to have it amputated. Activities of normal life as simple as putting his hand in his pocket were made difficult by the position of his finger. He said that when cutting firewood there was a risk that he would lose his grip on his axe and that he had lost confidence in his grip which had resulted in him abandoning his tennis and golf.

5          In the course of the proceeding, the plaintiff gave evidence and was cross- examined.

6          In evidence-in-chief, the plaintiff denied an allegation made by his estranged wife[1] that before the accident he consumed large quantities of alcohol and that he was prone to angry outbursts. He said that before the accident he smoked “when I was having a couple of beers with friends”.[2]

[1]             In an affidavit filed on behalf of the defendant – Defendant’s Court Book (“DCB”) 4a

[2]             Transcript (“T”) 10

7          In cross-examination, the plaintiff conceded that he ceased his employment with the defendant when he was dismissed following his unauthorised use of a company car whilst he was unlicensed. He accepted that the statement which he had made in his first affidavit that he had ceased working as a print assistant as he was unable to work with the machines and printing presses was untrue. When taken to an affidavit of Mr James McCulkin,[3] the plaintiff described Mr McCulkin’s statement, that he had returned to his pre-injury duties following his accident, as a lie. He said that a statement made by Shane Lawson,[4] that shortly after he returned to work the plaintiff was able to perform all his pre-injury tasks, was wrong. He said that at the time of the accident he was employed as a reel man and that his injury claim form dated 9 July 2002, which described him as being a printer’s assistant, was a lie.[5] He accepted that before the accident he smoked cigarettes and marijuana and that his affidavit in which he deposed that he had taken up smoking after the accident was not accurate.[6] He accepted that he may have exaggerated a statement made to Dr Botvinik[7] as to how much alcohol he was consuming in 2004, however he conceded that in 2006 he may have been consuming between twelve and twenty-four cans of mixed drinks each day. The plaintiff was unable to explain histories contained in the reports of Mr Kaplan and Mr Pretty that he commenced smoking after the accident.

[3]             DCB 1

[4]             DCB 3

[5]             T 18-19 – the plaintiff said that the only section of this document which he had completed was the section which contained his signature.

[6]             T 26

[7]             A consulting psychiatrist who examined the plaintiff on behalf of the defendant on 20 February 2004.

8          The plaintiff said that:

• Before the accident he would play golf three or four times a year and that he had not played football in a formal match since 1998. He conceded that in the year of the accident, golf played a very small part in his life;

• He went down to his mother’s property at Yarram three or four days each week and that he did whatever work he could while he was there. This included operating a 16 cow milking stall.[8] He said that he engaged in feeding silage which was done via a tractor which was fitted with power steering. He did not accept that this was a two-handed job;

• At the present time he was involved in erecting new fences on the farm in the course of which he might work for eight hours a day with breaks in between. This activity involved a great deal of hammering of staples into fence posts, which activity the plaintiff mainly performed with his right hand. The plaintiff conceded that other activities which he would perform included using an axe, which might involve half an hour of chopping, and the use of a chainsaw. The plaintiff conceded that in the course of everyday work around the farm he made a great deal of use of his damaged right hand and that sometimes he worked seven days a week on the farm;

• Since the accident he had been able to work forty hours a week on a regular basis and that his right hand did not keep him out of the workforce. He accepted that at the present time he was not working because he chose not to.

[8]             The plaintiff demonstrated the way he would attach the milking teats which he did predominantly with his left hand.

9          The plaintiff agreed that when seeing Mr Stapleton in 2009 he misled Mr Stapleton by giving him a history that he was at that stage working for Ready Force Recruitment (“Ready Force”). He accepted that this history, together with the history that he had not told Ready Force of his injury because if he did he would not have been employed, were both untrue. He said that he made these statements because he did not want Mr Stapleton to know that he had won Tattslotto.[9]

[9]             The fact that the plaintiff had been successful in Tattslotto is not in issue.

10        In re-examination, the plaintiff said:

• That he was now unable to perform farm work as easily and as readily as he could before the accident;

• That he had difficulty gripping a hammer and that his hand had a tendency to throb, that he could use a hammer for an hour to an hour and twenty minutes and then he would have to have an half hour break;

• The tractor which he drove on the farm was fitted with the special knob on the steering wheel and that he was able to drive the tractor using power steering;

• That most aspects of his work involving milking did not require significant manual work performed by his right hand. He described cold weather as causing him particular problems in his hand which became cold by reason of reduced circulation, so he said that the flexed position of his little finger always got in the way whilst he was working on the farm and that injuries were often an occasion to his finger. He described being embarrassed by the appearance of his hand and having particular difficulty shaking hands.

The Medical Evidence

11        The medical evidence relied upon by the parties is of short compass. There is no issue that the plaintiff suffers from an anxiety and depressive condition.

12        Mr Albert Kaplan, in a report dated 29 November 2006, described the plaintiff as suffering from an adjustment disorder with symptoms of low frustration tolerance, impaired memory and concentration and damaged self-esteem.[10]

[10]           Plaintiff’s Court Book (“PCB”) 33-34

13        Dr Victor Botvinik, in a report dated 20 February 2004, described the plaintiff as suffering from a personality disorder.

14        In a report dated 27 October 2005, Dr Stephen Tham described the plaintiff as having suffered a crush injury to his right hand resulting in skin avulsion to his right little and ring fingers on the palmar aspect and a burst laceration on the radial aspect of his left long finger. The injury was treated by debridement on 26 June 2002. Subsequently a surgical exploration was undertaken on 28 February 2003 and the first stage of a two-stage tendon graft procedure was undertaken. Following intensive therapy an attempt to undertake the second stage of the graft procedure was commenced on 24 April 2003 but was unsuccessful. A further procedure was undertaken on 31 July 2003 and the tendon graft was completed on 4 September 2003. Mr Tham expressed the opinion that it was unlikely that the plaintiff would re-gain full mobility in his injured little finger due to residual flexion contracture and that he may require further surgery in order to improve his flexibility.

15        The plaintiff was examined by Murray Stapleton on 30 June 2003, at which time Mr Stapleton expressed the opinion that the plaintiff’s condition had not stabilised.

16        Mr Stapleton reviewed the plaintiff on 11 December 2003, at which time he obtained a history from the plaintiff that although he had returned to work, involving two eight-hour shifts and two twelve-hour shifts, he was suffering from weakness of grip, the absence of sensation in his ring and middle fingers, and regular cramping pain in his right hand. Whilst Mr Stapleton expressed the opinion that the plaintiff continued to recover from his injuries, he was of the view that the plaintiff would suffer from a permanent impairment by reason of his injury.

17        The plaintiff was further reviewed by Mr Stapleton on 4 August 2008, at which time he obtained a history that the plaintiff suffered from pain, particularly when gripping objects, that he had no sensation in the three fingers which had been crushed, that the power of his grip was diminished and that his symptoms of pain were exacerbated by cold weather. Mr Stapleton accepted that the plaintiff had no appreciable sensation in the middle and ring fingers of his left hand. He commented that having regard to the flexion present in the plaintiff’s little finger, he was a candidate for amputation of the finger at and including the proximal interphalangeal joint. He expressed the opinion that the plaintiff’s capacity for pre-injury work was “significantly minimised” and that he would have to rely on more sedentary type occupations, such as store work or office work.

18        In a further report dated 6 May 2009, Mr Stapleton accepted that the plaintiff did not have protective sensation in the distal 50 per cent of the middle and ring fingers and that this sensation was totally absent in the plaintiff’s little finger. He expressed the opinion that both the function and appearance of the plaintiff’s right little finger would be improved if it were to be amputated through the proximal interphalangeal joint.

19        In a report dated 31 May 2005, Mr Frank Ham essentially agreed with the opinions expressed by Mr Stapleton. Finally, although I was provided with a number of reports from Mr Chris Baker, the opinions in those reports did not add anything of substance to the case.

The Plaintiff’s Credit

20        The defendant takes issue with the plaintiff’s credit. It was submitted by Mr Meldrum QC, on behalf of the defendant, that both in his affidavits and in the histories given to doctors, the plaintiff has manipulated the truth and, further, that he was an unsatisfactory and unreliable witness.

21        I consider that there is some substance in the position taken on behalf of the defendant in this regard. Generally the plaintiff was an unsatisfactory witness. The plaintiff’s demeanour in giving evidence was unusual. He had a tendency towards being argumentative and was reluctant to make appropriate concessions. He accepted that his affidavit contained a number of inaccuracies and that histories given by him to a number of doctors contained some statements which were misleading or untrue. Whilst generally these misstatements and inaccuracies did not, in my view, involve matters of great moment to the plaintiff’s case,[11] this was not always so and it was clear that the effect of the misstatements was generally to magnify the consequences of the plaintiff’s injury upon him. In these circumstances, it is difficult to accept that these misstatements and inaccuracies should be categorised as innocent mistakes.[12]

[11]           For example, the false assertion that the plaintiff had taken up smoking after his accident.

[12]           Neither was it contended by the plaintiff that this was always the case – see, for example, his evidence that he deliberately misled Mr Stapleton as to the fact that he was working - T41

22        Whilst I accept that, having regard to the matters to which I have referred I should carefully scrutinize the plaintiff’s evidence before accepting it; I do not accept the proposition that the plaintiff’s credit was so damaged that I should not accept any of the evidence which he gave as to the problems which he encounters on a day-to-day basis by reason the injury he has suffered to his hand for the following reasons:

•  Most of the plaintiff’s evidence as to the daily problems he encountered by reason of his injury accorded with the medical opinions to which I have previously referred as to the effect of his injury

•  The matters which are adverse to the plaintiff’s credit are inconsistent with, and balanced to some extent by the fact that:

(i)    within a short time after the occurrence of his injury the plaintiff returned to work with the defendant; and

(ii)    upon being dismissed by the defendant, the plaintiff found alternative employment.[13]

[13]           I interpret these actions as being consistent with the behaviour of someone who is seeking to minimize the impact of his injury upon his life

• Further, there was no suggestion by Mr Stapleton, who reviewed the plaintiff on a number of occasions, or Mr Ham, that the plaintiff in any way exaggerated the symptoms or the disability caused by his injury;

• Finally, I take into account the undisputed evidence that the plaintiff is suffering from a psychiatric condition of some moment.[14] I am satisfied that this condition would effect the way in which the plaintiff coped with the pressures associated with attending medico-legal examinations, giving oral evidence and being cross-examined, and may well account for the plaintiff’s unusual demeanour about which I have previously commented.

[14]           I refer in this regard to the opinions of Dr Botvinik and Mr Kaplan to which I have previously referred.

23        It was put by Mr Philbrick SC that the plaintiff’s exaggeration and unreliability related to matters which were remote from the real issues which I am required to consider in assessing this application and that I should ignore it. Whilst I do not accept this submission entirely, for the reasons described above, I accept substantially the evidence given by the plaintiff as to the incapacity and consequences associated with his injury.

Does the Plaintiff’s Injury Constitute a Permanent Serious Disfigurement?

24        In considering this issue I am required to take into account the consequences of the plaintiff’s disfigurement, including its effect upon his lifestyle. I should however quarantine as being irrelevant, any depressive reaction which the plaintiff might have suffered by reason of the presence of the scar, as such a depressive reaction is more properly considered under sub-paragraph (c) of the definition of “serious injury” within s.134AB(37) rather than sub-paragraph (b) of that definition.[15]

[15]           Ingram v Ingram and Transport Accident Commission [1996] 2 VR 435

25        In assessing this issue it is accepted that I should take account of the plaintiff’s evidence that he intends to undergo an amputation of his little finger as recommended by Mr Stapleton.

26        The plaintiff said that he was most embarrassed by the fact that his little finger was fixed in its flexed position and that in these circumstances shaking hands with someone was a serious issue for him. Whilst I consider this to be a matter of some significance, I expect that the amputation of the finger will, to some extent, diminish the problem the plaintiff encounters when shaking hands.

27        Taking into account the appearance of the plaintiff’s hand at the present time, together with the alteration in the appearance of the hand which will be effected by the proposed partial amputation of his little finger, whilst I am satisfied that the plaintiff’s disfigurement is reasonably described as “significant”, I am not satisfied that, when judged by comparison with other cases in the range of possible disfigurements, it can be fairly described as being more than “significant” or “marked” and at least “very considerable”.

Does the Plaintiff Suffer from a Permanent Serious Impairment or Loss of a
Body Function?

28        In assessing this issue it is accepted that I should adopt the approach which I took in assessing the level of disfigurement associated with the plaintiff’s injury, namely that the plaintiff intends to undergo an amputation of his little finger as recommended by Mr Stapleton. It is submitted by the defendant that I should, in these circumstances, bear in mind the comments made by Mr Stapleton that the surgery should enhance the function of the plaintiff’s right little finger. I do so, however I am satisfied that, whilst the nuisance associated with the flexed position of the little finger will largely be abated, the proposed surgery is unlikely to make a significant difference to the other problems which the plaintiff encounters by reason of his injury.

29        I have listed in considerable detail the concessions made by the plaintiff in cross-examination as to the activities he is capable of performing whilst working on his mother’s farm as it was put on behalf of the defendant that the ability to undertake these activities demonstrated a capacity which was inconsistent with the description of an impairment which was more than “significant” or “marked” and as being at least “very considerable”.

30        When I balance against this evidence the plaintiff’s evidence, which I accept, that:

• the plaintiff’s injury involves the function of his dominant right hand;[16]

• the plaintiff has undergone a number of surgical procedures and that he faces further surgery, at the conclusion of which he will be left with a significant and obvious cosmetic injury;

• the plaintiff has no sensation in his little finger and significantly impaired sensation in his ring and middle fingers;

• the plaintiff’s grip strength and tolerance to work and general activity in his dominant right hand is greatly diminished by reason of his injury;

• the plaintiff’s right hand is extremely sensitive to cold weather;

• the plaintiff is suffering from symptoms of anxiety and depression which, although not sufficient to constitute a severe emotional disturbance as characterised by the Act, are relevant in assessing the consequences of the plaintiff’s injury in terms of his pain and suffering and enjoyment of life;

• the range of employment opportunities which the plaintiff is fit to undertake has been restricted and will continue to be restricted for the balance of the plaintiff’s working life;

[16]           Although the plaintiff said he was to some extent ambidextrous, it is clear that the plaintiff performs the functions of daily life with his right hand.

and further, take account of the fact there is scarcely any activity undertaken in the course of daily life which to some extent does not involve the function of a dominant right hand, with the result that the symptoms and disabilities from which the plaintiff suffers in his right hand would present as a constantly reoccurring feature of his life, I am satisfied that the consequences to the plaintiff with respect to pain and suffering by reason of the impairment of function of his right hand may be fairly described as being more than “significant” or “marked” and at least “very considerable” when judged in comparison with other cases in the range of possible impairments or losses of body function .

31        For these reasons I consider it appropriate to make an order granting the plaintiff leave to commence proceedings seeking damages with respect to the pain and suffering consequences of the injury sustained in the course of his employment with the defendant on 26 June 2002.

32        I will hear counsel as to the precise form of the orders sought and also as to costs.

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