Rajic v Tyco Electronics Pty Ltd
[2010] VCC 1810
•7 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-03545
| MICA RAJIC | Plaintiff |
| v | |
| TYCO ELECTRONICS PTY LTD | Defendant |
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| JUDGE: | Her Honour Judge Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 and 7 December 2010 |
| DATE OF JUDGMENT (with oral | 7 December 2010 |
| reasons) | |
| CASE MAY BE CITED AS: | Rajic v Tyco Electronics Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1810 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s134AB(16)(b) – injury to the right hand- permanent serious impairment of the function of the right upper limb – pain and suffering
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L.R. Paine | Zaparas Lawyers |
| For the Defendant | Ms A.C. Ryan | Thomsons Lawyers |
| HER HONOUR: |
1 The plaintiff applies for leave under s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to issue proceedings for the recovery of damages for pain and suffering only in respect of a permanent impairment to the right hand sustained during the course of her employment with the defendant on 7 February 2001 when the tips of her right forefinger and middle finger were severed in a cutting machine.
2 The defendant concedes that the plaintiff suffered a compensable injury to her right hand in the incident and that liability for the claim was accepted, but says that the consequences of her right-hand impairment are not more than considerable when compared with other cases in the range of similar impairments.
The hearing
3 The plaintiff relied on: her affidavits; the reports of treating doctors Dr Ristevski and Dr Song; the report of treating physiotherapist Justin McGrath; radiological reports concerning the cervical spine and right shoulder; and the medico-legal reports of Mr Flanc and Dr Blombery. The plaintiff, Dr Ristevski and Dr Skrodic-Hadzimahmutovic gave evidence and were cross-examined.
4 The defendant relied on the medico-legal reports of Mr Sherburn, Mr Stapleton and Dr Elder. The defendant also relied on two letters of Dr Skodric- Hadzimahmutovic and a series of photographs showing the scars on the plaintiff’s affected fingers of the right hand.
The plaintiff’s evidence
5 The plaintiff is now 55 years old. She is right-handed. She was born in Macedonia and had eight years schooling there but did not work before marrying and having two sons. She migrated to Australia with her family in 1977. She worked as a packer for about 10 years before commencing employment at a company which was bought out by the defendant in around 2000. Her job involved five different tasks on the assembly line which made transmission lumes for the car industry. One of the tasks involved using a cutting machine to cut length of plastic tubing. When the machine jammed it needed to be freed manually. On 7 February 2001, while attempting to pull some tubing free from the cutting blade, the blade started to operate and cut the tips of the right forefinger and the right middle finger.
6 The plaintiff was taken by ambulance to the Royal Melbourne Hospital where she had immediate surgery. Although the tips of the amputated fingers were saved they were not reimplanted. Instead, the plaintiff had a graft on one finger and a flap on the other. She was released home later that evening, with a referral to desensitisation therapy, which is a form of physiotherapy, which continued until 2006 when the plaintiff says she believed payments for it ceased. The physiotherapy involved massage and squeezing a ball. Dr Ristevski added that it involved some attempt to train the patient not to feel timid in touching objects and not to worry about whether or not it could cause adverse consequences.
7 The plaintiff continued to see her treating general practitioner Dr Ristevski for her right-hand problems until about 2004 when she started seeing Dr Skodric. She continued to have pain in the two affected fingers. In May 2001 she returned to work on reduced hours and light duties and by June 2001 she was working full-time in restricted duties which she continued to perform until she was made redundant in February 2007. In June 2008, she commenced casual employment part-time at St Vincent's Private Hospital, working five to six hours, three to four days a week. She makes sandwiches and delivers trays to patients. She is able to avoid any heavy lifting or gripping of the right hand. However, she has to support trays without involving the affected fingers and says this is difficult for her.
8 According to the plaintiff’s affidavits sworn on 26 March 2009 and on 6 December 2010, and her viva voce evidence, she suffers numbness and pins and needles in the tips of the affected fingers. She has cold feelings in the fingers for one to two hours each day, more commonly in the cold weather. The sensation can be soothed by putting her fingers in hot water. She usually wears a glove on her right hand on winter mornings and at night. She continues to have restricted movement in the end joint of the middle finger, and her right hand is weaker because she does not have full sensation and movement. If she knocks the tips of her affected fingers she experiences deep pain in the finger. This also happens if she grips with the middle finger. Sometimes the tips of the affected fingers go blue. She has changed the way she drives to avoid turning the wheel with her right hand, she now mainly uses her left hand. At night she has to avoid rolling onto the right hand because pressure could cause increased discomfort. Her discomfort wakes her once or twice a week.
9 She can no longer write normally and has to hold the pen between her thumb and ring finger. This method only permits her to sign her name or fill out basic forms, and she can no longer write to her siblings in Serbia.
10 At home she can still cook but needs more help from her husband; and no longer cooks as much as before, or the dishes she used to cook. She avoids any prolonged gripping with the right hand and gets help with opening jars or bottles. She no longer bakes because she is unable to knead or roll the dough. She now vacuums with her left hand but finds this difficult and has to take breaks. She can hang small things on the line using her thumb and ring finger of her right hand, but her husband has to hang anything heavy. She used to enjoy gardening but can no longer dig flower beds or do any tasks that require prolonged use of both hands. She can no longer knit scarves, socks and jumpers for her family and can no longer make tapestries or crochet. She used to spend five to ten hours a week doing these activities, and has lost the sense of relaxation that they afforded her, as well as the sense of achievement from completing them.
11 She has an unpleasant feeling in her affected fingers all the time, with some numbness, and experiences sharp pain at least two to three times a day brought on accidentally by putting pressure on the fingers when gripping or knocking them. When she gets the pain she puts her hand under her left armpit to warm it up and after ten minutes the pain eases. If the pain persists she takes a Panadol Osteo. She takes one of these tablets each day and takes the tablets to work with her.
12 In cross-examination she agreed that she has had shoulder problems since 1999 also and that she has seen a specialist for this. She denied that she takes Panadol mainly for the shoulder pain and said she takes it for the fingers. She said she told Dr Skodric, whom she has been seeing since 2004 but who has not been treating her for her WorkCover injury, about her ongoing problems with her fingers. She said that she has difficulty doing her work due to the pressure on the fingers and the pain that it causes.
Medical reports
13 Turning briefly to consider the medical reports. The plaintiff's general practitioner until 2006, Dr Ristevski, reported on 20 February 2003 that several months after her surgery the plaintiff complained of weakness in her right hand and a cold sensation in her fingertips, and that her fingers would turn bluish. She was still complaining of these symptoms when he last saw her in February 2003. He thought she was likely to suffer a permanent impairment of right-hand function. He gave evidence at the hearing. He examined his clinical notes and said he began treating the plaintiff for general matters in 1995 and in fact last saw her in August 2004. On the last three visits in July and August 2004 she continued to complain of right-hand pain in the two affected fingers with a cold sensation and some trouble handling objects at work. Otherwise he noted she was coping with her work duties.
14 The Royal Melbourne Hospital provided a report dated 11 November 2010, by Dr Song, which outlined the plaintiff's surgical treatment and follow-up, particularly in relation to hypersensitivity in the affected fingertips, as well as stiffness of the middle finger joint. It noted that she was referred to desensitisation therapy but the symptoms continued at least until her last review in June 2004 at the hospital. She was told by the hospital that there was no further surgical treatment and that her symptoms would remain permanent.
15 Mr Charles Flanc, vascular surgeon, reported on 10 May 2010 that the plaintiff reported pain in the affected fingers, occasionally affecting the whole hand, with altered sensation over the tips and tenderness. Symptoms were exacerbated by any activity using the right hand. On the examination he found that the right index finger felt slightly cooler than the adjacent finger, sensation to light touch was affected; there was diffuse tenderness; the right middle finger was oblique and the digital nail was abnormal and hooked; flexion of the distal interphalangeal joint was severely restricted; sensation to light touch was altered. He felt the finger was a little cooler than the others; her hand grip using thumb against the affected fingers was very weak because of pain. He found that the tenderness symptoms were due to scarring of the sensory nerve. He felt that the slight decrease in temperature suggested the features of a complex regional pain syndrome type 1 and recommended referral to Dr Blombery. He concluded that she had a permanent disability in the right hand and would be unable to work full-time as a sandwich maker.
16 Dr Peter Blombery reported on 16 August 2010 finding that the affected hand was cooler than the left hand. He diagnosed an amputation injury, leaving the plaintiff with ongoing finger pain. He also diagnosed complex regional pain syndrome type 1, an organic disorder of pain nerve pathways. The only treatment available is the combination of analgesic, antidepressant and anticonvulsant medications, together with physiotherapy and psychological support which she could get at a pain clinic, but he felt that because she was managing her pain none of this would be necessary. He said that she would require pain-killing medication permanently and other treatments if the symptoms worsened, that she would be permanently restricted to light duties and that there would be no change to her level of disability in the future.
17 Mr Jonathan Hooper examined the plaintiff in 2002. He diagnosed injury to the index finger and lower finger of the right hand, noted the altered sensation and minor lack of movement in the joints there. He also noted:
"This is quite a disabling injury, even though it appears to be fairly minimal, as it
is her dominant hand and interferes with fine activities."[1][1] Defendant’s Court Book (DCB) 2.
In a further report of February 2003 he reached the same conclusion and found that she has a permanent impairment in the right hand and a permanent incapacity for employment.
18 Mr Neil Sherbourne, physiotherapist, reported in September 2002 that the hypersensitivity in her fingers was the real problem and noted her complaint that she could no longer crochet. He felt that the hypersensitivity problem should improve over time, but as the physiotherapy was apparently no longer providing any benefit and it should cease.
19 Mr Murray Stapleton, plastic surgeon, reported in June 2004 that the amputation injury resulted in an incapacity for pre-injury employment. He thought that no medical treatment was necessary, nor would it be helpful, and there was no likelihood of future surgery. He thought she did not need outside help with activities at home. In May 2009 he concluded that she could not work in repetitive activities due to lack of sensation in the affected fingers, although he felt that she might be able to work full-time at St Vincent's Hospital.
20 Dr David Elder reported in May 2007 that she was taking Panadol or Panadeine mainly for her shoulder. I note the plaintiff's denial that this was the case and her assertion that she was taking it for the finger problems, and I accept her sworn evidence in this regard. Dr Elder concluded there was a minimal neurological dysfunction of loss of sensation in the right middle finger and he performed a whole person impairment assessment.
21 I note that the Medical Panel found on 5 September 2007 that the plaintiff had a 13 per cent permanent whole person impairment resulting from the accepted amputation injuries to the right index and middle fingers.
22 Justin McGrath, physiotherapist, reported on 6 February 2003 that physiotherapy treatment was effective in improving the strength and mobility of the right hand and reducing right shoulder pain. He felt that the plaintiff could not return to her pre-injury duties and would be permanently partially incapacitated in that she would not have full use of her right hand. He also thought that the numbness and stiffness would be permanent.
Legal principles
23 In order to make out the serious injury within paragraph (a) of the definition in s.134AB(37) of the Act, the plaintiff must establish that she has suffered a permanent serious impairment or loss of a body function, and that the consequences to her in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[2] The court must consider the impairment of a body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[3]
[2] See sub-section 38(c) of s.134AB of the Act.[3] Vladimir Sabo v George Weston Foods [2009] VSCA 242 at [66]; Maro Stijepic v One Force Group Aust Pty
24 On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[4] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[5] The proper analysis involves establishing that the plaintiff suffered compensable injury after 20 October 1999, establishing what that injury was, determining the consequences which the plaintiff alleges have resulted and determining that those consequences were materially contributed to by the compensable injury and finally, determining whether those consequences meet the very considerable level in terms of pain and suffering.[6]
[4] Fleming v Hutchinson (1991) 66 ALJR 211.
[5] Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58].
[6] Ibid at [80].25 Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable to the adverb "very".[7] Each case has to be determined in the light of its own facts.[8]
[7] TAC v Dennis [1998] 1 VR 702 at 703 per Callinan J.[8] Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181.26 In determining the application the whole of the evidence is to be considered, and a successful return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering.[9] What matters is the extent to which an area of work which the plaintiff enjoyed has been closed off to her or him. In relation to the experience of pain, the court must assess the intensity and frequency of pain in the light of the plaintiff's evidence in court and to doctors as to what she says and does about the pain, the doctors' evidence about the extent and intensity of the plaintiff's pain and the objective evidence about the disabling effect of the pain.[10]
[9] Dwyer v Calco Timbers (No.2) [2008] VSCA 60; Stijepic v One Force Group Australia Pty Ltd & Anor [2009]
[10] Haden Engineerings Pty Ltd v McKinnon [2010] VSCA 69 at [11].27 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[11]
[11] Ibid at [16].28 Overall the court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what she has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[12]
[12] Dwyer v Calco Timbers (No.2) [2008] VSCA 60 at [27].29 I am entitled to take into account that the plaintiff is 55 years old and that compared with other persons with impairments of the fingers of the right hand she will experience these pain and suffering consequences for a slightly shorter period of time.[13]
Findings and reasons
[13] Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181 per Ashley J at [44].
30 No significant credit issues were raised by the defendant, I found the plaintiff to be a very straightforward witness who gave evidence in an understated yet emphatic way. There was complete unanimity in the medical evidence to the effect that she has been left with a permanent impairment or the right upper limb as a result of the amputation injury to the two affected fingers of the right hand. There is consensus that in light of ongoing pain and sensitivity and reduced function she can never return to her pre-injury employment. I accept the plaintiff's evidence as to the pain and restrictions she suffers in relation the fingers and in relation to the impact that this permanent impairment has had on her domestic, recreational and occupational activities, as well as on her enjoyment of life. I consider the plaintiff to be a very stoic person and very matter of fact in accepting the medical consensus that nothing more can be done for her and that she must manage as best she can, which she is doing.
31 However, while I acknowledge that she has retained the capacity to manage her activities of daily living and her capacity to work, she has lost a great deal as a result of the permanent impairment to her two fingers of her right hand, which is her dominant hand. The impairment has resulted in a permanent compromise of the function of the dominant right hand and of the function of two critical fingers of the dominant right hand. The impairment has resulted in constant discomfort, altered sensation and a feeling of cold. The impairment prevents her from gripping normally and exposes her to sudden severe pain from every knock and any pressure applied to the fingertips. These episodes of sudden pain can occur two to three times a day, and can take ten minutes or so to pass, which happens when she puts her hand in her other armpit or puts her hand in hot water. She can no longer write properly. She has had to modify every gripping activity for which she uses her dominant right hand in order to avoid undue pressure on the fingertips. She can no longer garden properly, knit or crochet at all, or make tapestries. She cannot clean the way she used to or to the extent that she used to. She has to drive differently. She will have to deal with these consequences permanently.
32 Notwithstanding therefore her admirable adaptation to her circumstances, I consider on all the evidence before me that the pain and suffering consequences of her right-hand impairment are fairly described as being more than significant or marked, and as being at least very considerable when compared with other cases in the range of possible impairments or losses of body function.
Conclusion
33 It follows that leave is granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering in respect of the injury to the right hand suffered during the course of her employment with the defendant on 7 February 2001.
Ltd and VWA [2009] VSCA 181 per Ashley J at [42].
VSCA 181.
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7
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