Reading v TBT SMS Pty Ltd
[2019] VCC 1863
•18 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-01741
| SCOTT LAWRENCE READING | Plaintiff |
| v | |
| TTB SMS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 October 2019 | |
DATE OF JUDGMENT: | 18 November 2019 | |
CASE MAY BE CITED AS: | Reading v TBT SMS Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1863 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment to the right little finger/hand – pain and suffering only – range case
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N R Bird | Slater & Gordon Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 5 September 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the right hand, involving mainly the right little finger (“the finger”).
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9 Section 134AB(38)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
12 The plaintiff relied upon two affidavits and was cross-examined. He also relied on an affidavit sworn by his partner, Jennifer Sharp, on 16 October 2019. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff was born in June 1969 and is currently fifty. He is right handed. Since leaving technical school, having completed Year 10, he has always worked in manual work or in supervisory jobs involving hands-on work.
14 The plaintiff’s work history prior to commencing with the defendant can be summarised as follows:
· Labourer for a brick company – eight months
· Welder for Prock, a mining engineering equipment company – five years
· Spray painter for Nissan Australia – approximately two years
· Spray painter for Vawdrey Truck Bodies in Mordialloc - two years
· Welder for Apple Fabrication making furniture products - one year
· Fitter and builder for Prestige Truck Bodies in Carrum Downs - two years.[3]
[3]Transcript (“T”) 10-11
15 In 2006, the plaintiff began working as a spray painter for the defendant in Dandenong. He then worked as a leading hand, before being made a foreman.
The incident
16 On the said date, the plaintiff was standing on scaffold beside a Tautliner trailer on which other workers were attempting to replace rubber pelmet. To do this, the workers had attached a metal plate to the rubber, and a rope was tied to the metal plate at one end and a forklift at the other end. The rope was then being pulled on by the forklift to try and pull the rubber pelmet along.
17 The plaintiff thought this was unsafe so directed the forklift driver to move forward to stop pulling on the rope/rubber. The forklift driver however moved the forklift further backwards and this caused the metal plate to fly off the rubber. When this happened, the plaintiff instantly put his hands up to protect his face, and the metal plate struck his right hand (“the incident’)
Treatment
18 After the incident, the plaintiff was taken to the Dandenong Hospital, where the dislocated middle joint on his right middle finger was relocated.
19 The plaintiff was cross-examined at length as to the precise injury suffered in the incident, it being put to him that no hospital records or doctors’ notes recorded any injury other than to the little finger.
20 The plaintiff explained he saw his general practitioner, Dr Chia, on the day of the incident and all she said to him was his hand was a mess and he should be on his way to the hospital.[4]
[4]T7
21 The plaintiff described that in the incident, his three fingers were “mucked up”. He recalled going to Dandenong Hospital and they straightened the middle and ring fingers. They told him they could not do anything with the little finger and asked him to come back the next morning to Outpatients. He was then told he would be going the next day to Blackburn Private.[5]
[5]T6
22 At Dandenong Emergency, the plaintiff was given a needle to take away the pain. A lady hand surgeon crunched his other two fingers.[6] She straightened the middle finger and the one next to it.[7]
[6]T7
[7]T8
23 The plaintiff no longer has any problems with his middle finger, and agreed his problems were restricted to his little and ring fingers.[8]
[8]T8
24 In his Claim for Compensation signed on 8 October 2007, the plaintiff described his injury as “stuffed right hand”. In his Claim for Impairments Benefits form signed by him on 29 April 2016, he described his injury as “3 broken fingers on right hand, 2 fingers fused”.
25 Three days after the incident the plaintiff’s fractured right little finger was operated on at the Waverley Private Hospital, with a plate and screws being inserted in it (“the operation”). The metal has remained in his right little finger since then.
26 Following the operation, the plaintiff had hand therapy for six months. Since that time, he has not sought medical attention for his finger injury.[9]
[9]T5
27 The plaintiff returned to work four days after the operation, but struggled with hands-on work. He had problems with tasks such as properly holding a spray gun. He continued work with the defendant for another six months.
28 The plaintiff was sacked because he was not up to scratch as a supervisor. He had trouble writing; however, he did not believe it was true that his work was not up to scratch. The defendant suggested he be put back in the spray booth and taken off being a supervisor, but the plaintiff could not do that, and he was sacked. The defendant was “restructuring”.[10]
[10]T9
29 After the incident but before he was sacked, the plaintiff did not do any spray painting. He gave advice to tradesmen when they were building their trucks and he supervised fitters and organised for deliveries to be taken off trucks. However, before the incident, he was a spray painter and welder. He was actually hands‑on.[11] He was paid the same as a supervisor as when working as a spray painter.[12]
[11]T9
[12]T10
Post-incident work
30 The plaintiff stopped working with the defendant in March 2008 and then was out of work for approximately eight months. He had never been off work for this amount of time previously. As a result of that time off –
“[I] lost my family pretty much over it because I didn’t exactly have the same status or the same money … I didn’t have the company cars and things anymore … There was a lot of things in my pay packet besides money at times. But I suffered, you know. But I have also overcome. I lost my marriage, I lost my children for a little while. I’m now very lucky to have my children back and I’ve found a new partner and I love her dearly and I’m doing my best to get myself through life.”[13]
[13]T37
31 The plaintiff next obtained a job painting tankers for Dawsons in Chelsea for approximately five months. He struggled with that job, because he kept dropping the spray gun due to his right hand pain and spasms. He painted with his left hand.[14]
[14]T11
32 The plaintiff then went onto sickness benefits for about eight months. At around that time, he became depressed because of the pain and restrictions in his right hand and his difficulties working. The lack of a secure income also compounded his problems. His marriage suffered and it broke down in 2010.
33 In approximately 2009, the plaintiff had started work at AMF Bowling Centres Australia (“AMF”). He was employed there for approximately seven to eight years in total. He initially started working for a few hours a week and, over time, built up to working full time as a facilities manager.[15]
[15]T12
34 The plaintiff worked at AMF until the centre at which he was working closed down in 2015 or 2016. Whilst he could carry out most aspects of that job, he struggled sometimes due to problems with his right hand – for example when he had to carry out repairs on bowling equipment or on the arcade machines.
35 After his work with AMF ceased, the plaintiff soon obtained a job doing spray painting work at STR Truck Bodies (“STR”) in Dandenong South. To be able to do that work, he taught himself to use the spray gun with both his right and left hands. He had to do so because he could not hold the spray gun for too long with his right hand because of pain, cramping sensations in the injured fingers and decreased grip strength.
36 After approximately eight months at STR, the plaintiff then worked at the Truck Painter in Carrum Downs for about one year. There, he carried out spray painting work about thirty per cent of the time and panel beating work about sixty per cent of the time. In the end, he had to leave this job because his right-hand pain and decreased strength made the job difficult, as too did the decreased sensitivity in his injured fingers.
37 Since approximately August 2018, the plaintiff has worked as a leading hand at Austruck Bodies in Seaford (“Austruck”). This business builds truck bodies for a variety of trucks such as furniture vans, vehicle recovery trucks and flat tray trucks. There, he carries out some hands-on spray-painting work but is able to limit the amount of hands-on work. Due to his right-hand problems, he also alternates hand usage and uses his left hand if possible.
Treatment
38 As of November 2018, the plaintiff attended the Young Street Medical Centre, and occasionally attended the Carrum Downs Medical Centre. He was not taking prescription medication for pain relief but took over-the-counter painkilling medication. He still used some codeine-based medication which he still had; however, he tried to avoid taking medication if he could.
39 The plaintiff had been told he might benefit from surgery on his right hand, but he did not want to have it. He had a poor result from the earlier surgery and also could not afford to be off work. Since the incident, he had had difficulty obtaining stable work and did not want to jeopardise his work prospects by having further time off.
40 Because it is closer to home, the plaintiff now mainly attends the Pro Health Family Medical Centre in Cranbourne. He is not prescribed medication for pain relief, although he does sometimes take prescription painkilling medication left over from when it was prescribed for both teeth and right knee pain. About twice a week, and when getting more aching and pain than normal in his right hand and the injured fingers, he takes a couple of over-the-counter painkillers.
41 The plaintiff gets pains every now and then in his hand. He generally gets painkillers from the chemist.[16] His current medication is Brufen and Panadol, which he takes maybe once or twice a week if he aggravates his hand pain.[17]
[16]T25
[17]T36
42 The plaintiff initially said he had not seen his general practitioner for his right hand for a little while. He agreed he goes to the doctor for other common complaints. He had regularly seen his doctor following his right knee injury.[18]
[18]T26
43 All the doctors who have seen the plaintiff have examined him, and one tried to squeeze his hand. They all checked his hand out. He could not particularly recall seeing Mr Thomas. When asked whether he gave his best effort when he was examined by Mr Ireland, the plaintiff said “Yes, always”.[19]
[19]T28
44 Mr Ireland was pushing down on his hand and the plaintiff asked him to stop because it was hurting. The plaintiff recalled Mr Ireland saying he thought the plaintiff could move his hand a bit more if he concentrated “or something”.[20]
[20]T29
45 The plaintiff got the callouses Mr Ireland observed, from working. He had old callouses from the job at AMF.[21]
[21]T34
Medical history
46 In 2002, when the plaintiff briefly worked at Jayco Caravans, he had sore eyes and headaches for about a month, resulting from some paint thinners going into his face.
47 In 2006, the plaintiff’s left knee cap was fractured. Thereafter, his knee was in a cast for a few months. His left knee now gets a bit sore at times, but it does not restrict him in doing things. It is pretty good now.[22]
[22]T34
48 In 2015, when the plaintiff was working for AMF, he received facial burns after being electrocuted; however, he suffered no significant injury in that incident.
49 In late 2018, the plaintiff began to get a sore right knee at work. He had a few injections in the knee and came to arthroscopic surgery in mid 2019. After the surgery, he was off work for approximately seven weeks. He has made a reasonably good recovery from his surgery and his right knee does not limit him in general activities.
50 The plaintiff worked right up until the day before his knee surgery. He only took one week off at one time because he could not stand and he “could not walk out the door”. He was keen to return to work after the surgery.[23]
[23]T35
51 The plaintiff is still having physiotherapy for his right knee. There is no review organised with his surgeon. His knee is very good, and he has had no complaints with it when back at work.
52 The plaintiff denied that his right knee would have affected his ability to play golf. He walks everywhere. The Austruck factory is large, and he probably does about 50 laps of it a day between all the workers. He only had a week off with his knee and he “limped himself back to work.”[24]
[24]T35
Pain
53 As of November 2018, the plaintiff often experienced pain and cramps in his right hand, including in the 3rd, 4th and 5th fingers. He also sometimes experienced spasms and a numbness feeling on the back of his right hand and in the 4th and 5th fingers.
54 The pain and symptoms in the plaintiff’s right hand worsened with use and also in cooler weather.
55 The plaintiff’s right 4th and 5th fingers were permanently curled in, and in the middle finger, he had to sort of crunch it to get in moving. The joints in his 5th finger did not move because of the metal plate. He was unable flatten the fingers or make a fist properly with his right hand and had less dexterity and grip strength.
56 Due to the injured fingers not curling in properly, they sometimes caught when the plaintiff put things in his pocket or in a drawer. Many everyday tasks such as writing and doing up shoelaces were now more difficult. Because of the right-hand problems, he used his left hand far more in everyday tasks such as opening doors and carrying shopping.
57 Because his right hand was painful when gripped, upon meeting someone, the plaintiff normally shook their hand with his left hand.
58 As of October 2019, the plaintiff continues to suffer pain and cramping in the right middle, ring and little fingers. He sometimes gets numbness sensations, spasms and pins and needles’ sensations in his ring and little fingers, as well as on the little finger side of his right hand. Those feelings are worse in cooler weather. If he uses his right hand too much, he gets a general ache in it.
59 The ring and little fingers are permanently curled; the little finger far more so. Whilst he has a little movement in the first and second joints of his ring finger, the plaintiff cannot move that finger properly. Beyond some movement in the first joint of his little finger (the joint closest to his hand), the other joints do not move.
60 The plaintiff now has less ability with finer movements and also less strength in his right hand. Many everyday tasks are affected by the injuries, for example doing up shoelaces and indeed, eating, as he cannot hold cutlery properly in his right hand. When doing these sorts of tasks, he tries to avoid using his ring and little fingers as they do not function properly and using them too much causes pain. These fingers still catch when putting things in his pocket.
61 The plaintiff, in the normal day, is affected by his injury from the time he gets up in the morning until the time he goes to bed “so every hour”.[25]
[25]T2
62 The plaintiff’s little finger was viewed while he was in the witness box. The finger sort of bent up a little bit. He was not able to normally wiggle the finger and bring it in. He could move it slightly. The movement of his other three fingers was normal. The finger next to his little finger did not bend fully.
63 When the plaintiff tried to do a fist, his little finger stuck out and the finger next to it, was bent over a bit. He explained, “that is as good as it gets”. When he picks up a cup, his little finger sticks out, as does the one next to it.
64 There is no pain or different sensation when the plaintiff’s little finger is at rest – “most of the time it is just there, until [he] aggravates it”.[26] His hand itself gets sore, which he thought sometimes was because he tried to do something just using three fingers – “maybe it is just overuse”. He could not put his right hand down flat on the front of the witness box. His little finger stuck out and his ring finger was a bit raised.
[26]T3
65 The plaintiff denied that pins and needles happened only in winter, as Mr Ireland recorded. The plaintiff has more trouble during winter, but he has pins and needles all the time. He could be sitting watching television and get pins and needles, and he finds himself “rubbing the hell out of his hand” – the top of his hand and his fingers.[27]
[27]T29
66 The plaintiff denied he was exaggerating HIS degree of disability sitting in the witness box with his hand in a claw-like manner. It was the way he presented his hand at work. His hand was always like that all the time.[28]
[28]T33
Consequences
67 As of October 2018, many everyday household tasks were affected by the plaintiff’s right-hand injury. Cutting up food caused right hand pain and he was less able to do this as it involved a degree of dexterity in his right hand that he did not have. He still sometimes mowed the lawns but mainly relied on his left hand as the vibration of the mower and the pushing and pulling caused right hand pain and aching.
68 The plaintiff lives with his partner and three children from his former marriage. His partner carries out most of the household tasks and does the cooking. Because of HIS finger injuries, he is limited in his ability to help.
69 Cutting up food continues to cause pain in the plaintiff’s right hand. Problems mowing the lawn continue and he obtains family help in this regard. There is not really any maintenance work around the house because it is a rented property. The maintenance is really only lawnmowing.[29]
[29]T30
70 Although the plaintiff’s partner deposed he had problems when he cut up food in preparation, the plaintiff said he did some food preparation, but very rarely, and his cooking was “pretty much baked beans”.[30]
[30]T25
71 The plaintiff helps with the children but does not generally do a great deal around the house;[31] however, he is now quite settled domestically.[32]
[31]T30
[32]T33
72 In terms of grooming and toileting, the plaintiff had adapted and learnt. He wiped his bottom with his left hand when he went to the toilet and did most things now with his left hand. He still used his right hand, but he adjusts and overcomes things.[33]
[33]T35
Recreational activities
73 As of October 2018, the plaintiff’s right-hand injury had affected his recreational activities significantly.
74 Since approximately 2005, the plaintiff had owned a boat which he previously used a lot – at least once a fortnight, going fishing even in the winter months. Whilst he still went fishing, post-incident he went far less often. This was mainly because he did not have the necessary dexterity to hook tackle and bait hooks and relied on his sons to do this. He cast the line mainly using his left hand. When casting, he avoids gripping the rod with his fingers. He goes fishing when he has someone to fish with him. He goes fishing quite often; his son takes him out and he enjoys it.[34]
[34]T30
75 Pre incident, the plaintiff also often used his boat for water-skiing. Post incident, he tried water skiing, but it was too difficult because of pain and the lack of grip strength in his right hand.
76 Last Christmas, the plaintiff camped with his family at Lake Eildon. He tried being pulled by the speed boat on a boogie board. He could only hold onto the towrope for barely a few feet because he could not properly grip it due to the decreased grip strength in his right hand.
77 When the plaintiff was younger, he went water skiing.[35] He has had boats all his life.[36] He has not been on skis since the incident. He was last on skis not a long time before. He knows for a fact he now cannot do it. Having tried on a boogie board and failed, “there is no point trying to do it on skis as it takes a bit to get up on your feet”.[37]
[35]T31
[36]T36
[37]T31
78 Before the incident, the plaintiff also used to enjoy playing golf every couple of months at Carrum Downs. He had tried playing golf a few times not long after the incident, but it was too difficult with his right-hand injury. He could not grip the clubs properly and had right-hand pain.
79 In January 2019, the plaintiff tried playing golf but could only play one hole. That was because he could not get enough grip strength in his right hand, and also the jolting when he struck the club caused a lot of pain in his injured fingers. His right knee would not stop him walking 9 or 18 holes.
80 Pre incident, the plaintiff was not a member of a golf course and he did not have a handicap. It was a relaxing activity to be alone with his thoughts. He had a reasonable set of golf clubs. He now could not lift a golf club because it hurt. He disagreed that if he was able to operate a spray gun, he could swing a golf club, as it differed in the way he gripped.[38] He cannot grip a golf club now, “not like a normal person”.[39]
[38]T32
[39]T33
Current work
81 The plaintiff continues to work as a leading hand/supervisor for Austruck which employs about forty people. He works on a full-time basis and sometimes does overtime – on average, about five to ten hours a week.[40] He continues to carry out some hands-on spray painting work.
[40]T14
82 Each day at work, the plaintiff would probably spray paint for about two hours. He mainly uses his left hand when spray painting as he cannot firmly grip the handle on the spray gun due to the decreased flexion and grip strength in the ring and little fingers. Also, when holding the spray gun with his right hand, even while they are not gripping the handle, he starts to get aching in his right ring and little fingers, as well as in his hand generally. Because of the injuries, he is now limited in the more physical aspects of work he can carry out.
83 When the plaintiff went for his pre-employment medical for this job, he told the employer about his hand injury and that he had required four days off work. Whilst the pre-employment medical documentation set out the job applied for was spray painter, the plaintiff actually went there for work as a supervisor spray painter. All spray painters have to have a medical.[41]
[41]T12
84 The plaintiff’s current duties involve building truck bodies – “and anything you can imagine that is usually on the back of a truck”.[42]
[42]T13
85 As a supervisor, the plaintiff is generally only out in the fitting section, so he does scratches and dents.[43] There would be days he does not paint at all and he has “boys” who do most of the painting. The plaintiff does “little repair sort of things”. He pretty much stays away from spray painting as best he can, but he can use his left hand, doing small repairs, using it for up to about two hours a day. That is not holding a spray constantly, of course.[44] He can hold a gun with his right hand, using two fingers and his thumb, and he can paint very well now with his left hand.[45]
[43]T18
[44]T14
[45]T15
86 Every day at work, the plaintiff uses either hand for some sort of task. Due to his right hand not being too good, he has learned to use his left very well.[46]
[46]T29
87 The plaintiff can hold the spray gun for an hour and is able to use both hands. He could probably paint for about 40 minutes doing scratches and dents.[47] After he does a bit of work, his right hand aches. He finds he cannot get a steady flow sometimes because his hand just gets sore, or he has to go from hand to hand.[48] The plaintiff cannot use a sander in his right hand because of the vibration.[49] He uses a palm sander with his left hand.[50] He is not required to use other tools.[51]
[47]T36
[48]T37
[49]T37
[50]T19
[51]T20
88 The plaintiff very rarely works underneath a truck. Whilst in his WorkCover Claim Form regarding his knee injury in November 2018 he described him being on his knees in spray booths under mezz decks, the plaintiff was not actually under the truck painting, he was there checking all the paint and then touching up the area when he sustained an injury to his right knee.[52]
[52]T24
89 In response to the suggestion he had been exaggerating the injury to his hand, the plaintiff said he was annoyed because he had not:
“I think my hand being hurt, I’ve been a good man, I’ve adapted. When I couldn’t do my job I went and done another job that wasn’t much pay until I could adapt and get on with my life”.[53]
[53]T37
90 The plaintiff agreed that, of recent years, he has been earning more than ever before.[54]
[54]T15
91 The plaintiff confirmed a series of photographs taken of his hand in April this year which showed they were paint-stained and dirty.[55]
[55]T21
Statement of the Plaintiff’s gross earnings
Tax Return Year Gross Income Gross Weekly Earnings 2003 N/A N/A 2004 N/A N/A 2005 $31,145.00 $598.93 2006 $9,852.00 $189.45 2007 $18,041.00 $346.93 2008 $48,695.00 $936.43 2009 $1,315.00 $25.29 2010 $48,184.00 $926.62 2011 $41,991.00 $807.52 2012 $43,340.00 $833.45 2013 $49,248.00 $947.08 2014 $44,740.00 $860.37 2015 $47,694.00 $917.18 2016 $66,578.00 $1,280.35 2017 $65,324.00 $1,256.22 2018 $73,283.00 $1,409.29 2019 $69,126.00 $1,329.35
Lay evidence
92 The plaintiff’s partner, Jennifer Sharp, swore an affidavit in 2019. They met approximately two years ago. They began living together after approximately three to four months with the plaintiff’s three children from his previous marriage.
93 Jennifer corroborated the contents of the plaintiff’s affidavits. I have not taken into account the limited hearsay evidence contained in her affidavit.
The Plaintiff’s medical evidence
Treaters
94 A right hand x-ray taken on 5 September 2007 was reported to show a mildly displaced, markedly dorsally angulated fracture through the midshaft of the proximal phalanx of the right 5th finger. No other bony injury was seen.
95 On 11 September 2007, at Waverley Private Hospital, the plaintiff underwent an open reduction and internal fixation with the insertion of a plate and screws into the proximal phalanx of the right little finger.
Medico-legal evidence
96 The plaintiff was assessed by Dr David Fish, consultant occupation and environmental physician, on 4 July 2017.
97 Dr Fish noted the plaintiff attended Dandenong Hospital after the incident, where they found he had suffered a dislocation of the PIP joint of the right middle finger. This was relocated.[56] He was subsequently transferred to Waverley Hospital where his little finger was operated upon.
[56]The source of this information is unclear in this report
98 On examination in July 2019, the plaintiff complained of cramps over the dorsum of the right hand with restricted movement in the ring and little fingers. He told Dr Fish that he suffered numbness over the dorsum of the hand at times, particularly over the 4th and 5th metacarpals.
99 Dr Fish found reduced grip strength, and that with some coaxing, it was apparent that the plaintiff was suffering locking of the middle and ring fingers, as he woke up with curled fingers and must force them open. The plaintiff reported increased clumsiness in his right hand due to loss of grip with the ring and little fingers.
100 On examination of the right hand, Dr Fish noted a 2.5-centimetre longitudinal pale, fine and well healed scar over the proximal phalanx of the right little finger. There was clawing of the little and ring fingers and restricted motion in extension and flexion of both of these fingers principally at the PIP and DIP joints. There was no abnormal motion in the middle and ring fingers. There was normal sensation and normal 2-point discrimination.
101 On further examination, there were tender nodules in the flexor tendons of the ring and little fingers of the right hand with triggering, tenderness, and pain on passive flexion. Dr Fish considered that there was probably flexor tenosynovitis of the long flexors of both of the ring and little fingers.
102 Dr Fish thought the plaintiff presented with a fairly simple fracture of the proximal phalanx treated by open reduction and internal fixation. He had gone on to develop significant clawing and shortening with constrictive tenosynovitis involving the little and ring fingers of the right hand. In Dr Fish’s opinion, this represented nodule formation and triggering secondary to the injury and could well be managed by appropriate surgical treatment by a hand surgeon.
103 Dr Fish considered treatment was required and the plaintiff needed to see a hand surgeon for appropriate investigation and treatment before he could be regarded as stabilised. In the interim, Dr Fish performed an impairment assessment, but his strong recommendation was that the plaintiff was not stabilised until he had at least been seen by a hand surgeon and advised on appropriate treatment.
104 Mr Damon Thomas, plastic and reconstructive surgeon, examined the plaintiff in January 2019.
105 Mr Thomas noted the plaintiff sustained a crush injury to the right hand with a documented fracture of the right ring finger proximal phalanx. He had gone on to undergo open reduction internal fixation with a plate and screw fixation. He had secondary reduced range of motion with the little and ring fingers, presumably due to a combination of joint adhesions and tethering of the extensor tendons.
106 Mr Thomas was unclear as to what was causing the plaintiff’s paraesthesia over the ulnar aspect of the hand. He thought it might be that the plaintiff had ulnar neuropathy as well, and may well benefit from nerve conduction studies.
107 On examination, the plaintiff complained of reduced flexion of the little and ring fingers, reduced strength, reduced dexterity and cramping and pins and needles over the ulnar side of the hand, which was worse at night.
108 In terms of physical restrictions, Mr Thomas noted the plaintiff had reduced function of the right hand due to the injury. He had reduced movement, reduced strength, reduced dexterity and overall reduced function of the right hand. This affected him with manual and fine motor tasks.
109 Mr Thomas thought the impairment was permanent and would continue; however, he would not expect any deterioration. He thought further surgery would be of no benefit to the plaintiff, and nor would further hand surgery, when the injury occurred over twelve years ago. He considered the plaintiff would require intermittent analgesics, noting he currently took Brufen for pain on as needs basis.
110 The only outstanding issue was the paraesthesia over the ulnar side of the plaintiff’s hand and Mr Thomas thought he would benefit from a cessation of smoking and a review by a hand specialist for consideration of nerve conduction studies; however, overall, Mr Thomas thought it unlikely that there would be any interventional treatment that would be of benefit to the plaintiff.
111 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff in September 2019.
112 The plaintiff told Mr O’Brien he currently experiences pain, particularly on the medial aspect of the right hand, extending to, particularly, the 4th and 5th right fingers when he overuses the right hand, such as using a spray gun. The plaintiff stated that this resulted in what he described as “spasms”. He stated he could not make a full fist, and holding anything in the hand for any period caused pain.
113 The plaintiff reported he was unable to flex the fifth ring finger, as that caused difficulty when trying to put his hand in his pocket or reach into a drawer, and the fifth finger often got caught.
114 The plaintiff stated he also experienced some persistent pins and needles affecting the ulnar side of the right hand, extending into the 4th and, in particular, 5th fingers, which he stated occurred particularly at night if he rested his right arm on a chair. He advised that this could sometimes cause sleep disturbance.
115 The plaintiff reported he did take Panadeine tablets, but now painkilling medication was confined to Nurofen, which he generally took two a day. He had occasionally seen his local doctor concerning his hand and been prescribed Voltaren which, the plaintiff indicated, had not been particularly helpful.
116 The plaintiff reported some difficulty using his right hand doing household tasks because he was right-hand dominant. He advised he had not been able to undertake any further sporting activities, such as golf, due to his hand symptoms, and was now quite limited with fishing, as he was not able to tie a knot. If he went fishing, he needed assistance.
117 On examination, with the hand at rest, the right 5th finger was held in extension at the metacarpophalangeal joint, with some flexion of the proximal and DIP joint. There did appear to be a normal range of movement in relationship to the right index finger and middle fingers.
118 Metacarpophalangeal flexion of the 4th finger was from 0 to 30 degrees. Flexion of the PIP joint was 0 to 70 degrees. There was 20 degrees of flexion of the DIP joint. The 5th finger metacarpophalangeal joint was held in some 15 degrees of extension with no active flexion. Passive movement was resisted.
119 There was some 30 degrees of fixed flexion of the PIP joint, with flexion of 10 per cent of the DIP joint. The plaintiff reported moderate tenderness to pressure over the fifth metacarpophalangeal joint and the PIP joint. There was reported some very vague sensory change to light touch on the medial side of the 5th finger.
120 Mr O’Brien noted an x-ray of the right hand of 5 September 2007 described a mildly displaced markedly dorsally angulated fracture through the mid-shift of the proximal phalanx of the right 5th finger. He could find no documentation relating to a dislocation of the middle finger.
121 Mr O’Brien thought the plaintiff’s right hand remained symptomatic with, in particular, significant loss of function of the right 5th finger. There would now appear to be fixed extension of the right fifth MCP joint, with fixed flexion of both the proximal and distal IP joints. That was accompanied by adhesions of the extensor tendon mechanism, particularly over the dorsum of the proximal phalanx, this combination resulting in the 5th finger remaining extended and prominent. In addition, there was noted some restriction of movement of the right 4th finger, particularly in relationship to the metacarpophalangeal joint.
122 Actual sensory change, currently, was minimal, and Mr O’Brien could not find any specific neurological dysfunction to explain the reported distribution of paraesthesia in the right hand.
123 Mr O’Brien thought the clinical condition clearly was stable and any treatment now would be purely associated with the use of analgesic medication. Thus, the prognosis could be regarded as poor, in that the plaintiff will continue to experience limited function of the right dominant hand.
124 Mr O’Brien noted the plaintiff certainly described moderate disability in relationship to the limited right-hand function. The plaintiff did remain fully employed, although it was obvious he could not undertake totally unrestricted manual duties. He required some modification in relationship to his ongoing employment and that allowed him to continue with full-time duties. Thus, Mr O’Brien would consider all further employment would require some modification of duties. He concluded, overall, the plaintiff, now, is mildly limited in relationship to his general, social, domestic and recreational activities, and that restriction would be ongoing.
The Defendant’s medical evidence
125 Records from Southern Health of the plaintiff’s attendance following the incident referred largely to an injury to the proximal phalanx of the fifth right finger.
126 However, an Emergency note of 5 September at 7.30, read as follows:
“Ring block ® straightened finger buddy taped to ring finger and put in ulna splint.”
Medico-legal evidence
127 The plaintiff was examined by Mr Damian Ireland, hand surgeon, April 2019.
128 On examination, the plaintiff complained of pins and needles affecting the ulnar side of the right hand, which had been present for six years and only occurred at winter, and did not worry him in summer. He complained of stiffness of the ring and little fingers, which caused him awkwardness, because he was not able to make a fist. He also described occasional aching in the hand, which was global, which occurred now and again.
129 Mr Ireland noted the plaintiff attended to all the normal activities of daily living and normal household chores and maintenance.
130 On examination, the plaintiff’s right hand was heavily work stained and work calloused, which was symmetrical, with the non-dominant left hand indicative of heavy ongoing manual work.
131 There was no swelling or deformity; however, the plaintiff continuously held the ring and little fingers in an extended position, even with the initial handshake. He claimed he was not able to flex the ring and little fingers, but on distraction, he was able to demonstrate a full motion with the ringer finger and normal motion at the MPC joint of the injured little finger.
132 At best, Mr Ireland could estimate the only restricted motion in the plaintiff’s hand was at the PIP joint of the right finger, which he measured at 20 degrees extension to 40 degrees flexion.
133 There was no evidence of motor or sensory compromise of either the median or ulnar nerve in the right hand, with full opposition of the thumb to all finger pulps. The provocative tests for flexor tenosynovitis, de Quervain’s tenosynovitis, basal thumb joint pathology and wrist pathology were negative. There was a full range of wrist motion.
134 Mr Ireland diagnosed dysfunction of the right little finger following open fracture of the PIP, treated surgically.
135 Mr Ireland found the plaintiff had restricted motion at the right little ring finger following an open fracture of the proximal phalanx, treated surgically. He noted the examination was difficult, but he suspected the plaintiff had restricted motion of both the proximal and DIP joints of the little finger of the right hand, with normal metacarpophalangeal joint motion. He was not able to detect any abnormality of the adjacent ring finger, which the plaintiff alleged was injured in the same work injury.
136 Mr Ireland noted there was a significant discrepancy between the severity of the subjective symptoms of which the plaintiff complained and the presence of corresponding objective physical findings, including the histrionic reaction to handshaking and active examination of the hand.
137 Mr Ireland thought the plaintiff had lost motion at the interphalangeal joints of the little finger of the right hand which imparted a minor impairment and disability, which were insufficient to prevent him returning to his pre-injury job description, and which he is currently engaged.
Submissions on behalf of the Defendant
138 There was no report from any treater apart from the operation report.[57]
[57]T38
139 Whilst Dr Fish diagnosed flexor tenosynovitis, he is an occupational physician. That diagnosis was disputed by hand surgeon, Mr Ireland.[58]
[58]T39
140 Although there is a complaint of paraesthesia, no doctor, including Mr Thomas, could find any organic reason for it.[59]
[59]T41
141 Mr Thomas described the plaintiff as a poor historian and was wrong in his note that the plaintiff did not return to work with the defendant.[60] Significantly, no part of Mr Thomas’ report refers to any examination finding which is a necessary matter in a medico-legal report. It was submitted any mention by Mr Thomas was simply a repetition of what he had been told by the plaintiff. This was to be contrasted with Mr Ireland’s careful examination, and if it was seen to be one hand surgeon against another, it was submitted Mr Ireland should prevail.[61]
[60]T39
[61]T41
142 Mr O’Brien’s examination findings were confined to some limitations with respect to the little finger and vague sensory changes to light touch. He concluded the plaintiff, at forty-nine, was mildly limited in general activities.[62]
[62]T42
143 It was submitted Mr Ireland’s findings were careful and his examination findings should be accepted in terms of the plaintiff having a full range of movement on distraction and his ultimate diagnosis related only to the little finger.[63] Also relied on were Mr Ireland’s comments that there was a significant discrepancy between the severity of the subjective signs and the objective examination findings, ultimately concluding a minor impairment.[64]
[63]T42
[64]T43
144 In general terms, it was submitted the only documented injury was to the right little finger. The plaintiff now is essentially doing his pre-injury work. There is no relevant loss of earnings. His work does involve activities of the hands. There is no pain medication prescribed and there are only the plaintiff’s subjective complaints which no treater can verify.[65]
[65]T43
145 Further, the plaintiff still goes fishing and enjoys it. Water skiing seems to be much less important to him than fishing. It was submitted the plaintiff “either ticked none of or grazed one or two of the boxes” in Haden Engineering.[66]
[66]T43 - Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [16]
146 It was submitted it made no sense the plaintiff could work as a hands-on spray painter supervisor and cannot hold a golf club – “the plaintiff just does not get there”.[67]
[67]T44
147 Counsel for the plaintiff relied on the AMA assessment of 49 per cent impairment of the right ring finger. Although Dr Fish is an occupational physician, he was chosen by the insurer to carry out the impairment assessment, following which a benefit was paid to the plaintiff.[68]
[68]T45
148 It was submitted that whilst Chernov J in Sumbul[69] had difficulty accepting a serious injury when a worker had resumed work post injury, each case must be considered on its own facts.[70]
[69]Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraph [24]
[70]T46
149 Counsel for the plaintiff submitted - “you might think the plaintiff did not miss a beat in cross-examination. Where there were concessions to be made, he made them. But basically, the case is that he is working but he does not know any different.” One week after knee surgery in June, he was saying to his doctor that he wanted to go back to work – “that has been his whole life”.[71]
[71]T46
150 If the plaintiff is accepted as a witness of truth, and it was submitted he should be, then it should be accepted his injury affects a whole range of activities of daily living. As he described “from the moment I get out of bed in the morning and every hour of the day”.[72]
[72]T46
151 It was submitted the plaintiff had deposed to an extensive list of consequences in his affidavit; simply getting something out of his pocket, his finger gets caught.[73] The plaintiff has a current job, but there is a big “but”. His injury has been affecting him for twelve years now and there is no operation that it going to change that situation.[74]
[73]T47
[74]T48
Overview
152 It is not in dispute that the plaintiff suffered fracture of the right little finger – the right proximal phalanx – requiring open reduction and internal fixation. The surgical hardware remains in situ.
153 The plaintiff also claims to have injured his middle and ring finger in the incident and had conservative treatment in relation thereto at Dandenong Hospital on the said date. Whilst counsel for the defendant submitted there was no mention in the Hospital records or any other treatment records of any injury to other than the right little finger,[75] the Southern Health Emergency Department note seems to suggest otherwise.[76]
[75]T39
[76]See paragraph [131] of my Judgment
154 The plaintiff’s claim in relation to a “stuffed right hand” was accepted and weekly payments were made. Impairment benefits were paid pursuant to s98 for a permanent impairment of the little finger and ring finger of the right hand.
155 Beyond this issue, the question is largely one of range.
Credit
156 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[77]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[77](supra) at paragraphs [11] and [12]
157 When counsel for the defendant put to the plaintiff he was exaggerating, based on Mr Ireland’s examination findings, the plaintiff responded that he was annoyed by this comment as he “[has] always tried to get on with things”.[78]
[78]T37
158 I accept the submission by plaintiff’s counsel that this is the case. The plaintiff was quick to return to work after the initial injury. He tried but could not continue. He stuck it out in his trade for years until he could cope no longer. He then “regrouped” in the bowling managerial role and is now back to a largely supervisory role.[79]
[79]T45
159 Further, I accept the plaintiff is somewhat of a stoic, as his counsel submitted, continuing to work with a significant disability in his right hand.
160 As Nettle JA noted in Dwyer v Calco Timbers Pty Ltd (No 2),[80] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[80][2008] VSCA 260
161 I found the plaintiff to be a very credible witness and accept his evidence of his level of pain and restriction.
162 Mr Ireland is the only medical practitioner who thought the plaintiff displayed avoidant behaviour, possibly somewhat over limiting the use of his hand. The plaintiff explained however, he co-operated in what was a painful examination by this practitioner.
Treatment
163 Counsel for the defendant submitted there was a very conspicuous absence of medical evidence from any treater. There is no report from a treating hand surgeon, a hand therapist or any general practitioner.[81] There is no record of any attendance on a general practitioner for some years.[82]
[81]T43
[82]T25
164 Whilst there was this comment about the lack of recent medical attendances, the plaintiff cannot be criticised for not having further treatment, because none has been suggested.[83]
[83]Other than by medico-legal examiner, Dr Fish, whose opinion was not shared by any other examiner
165 The plaintiff’s treatment to date has, after the initial operation, involved hand therapy and then medication, and, of more recent times, over-the-counter Panadol.
Pain
166 The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about his pain both in court and to doctors.[84]
[84]Haden Engineering Pty Ltd v McKinnon (supra) per Maxwell P
167 The plaintiff continues to suffer pain and cramping in his right hand, mainly in the ring and little fingers. He sometimes gets numbness on the back of this hand – which has not been explained organically – spasms and pins and needles’ sensations in his ring and little fingers, as well as on the little finger side of his right hand. These feelings are worse in cooler weather. If he uses his right hand too much, he experiences general aching.
168 Whilst the plaintiff’s pain is not constant or excruciating, I accept the plaintiff’s incident injury continues to cause the problems he has described. Such problems are unlikely to improve and are permanent.
169 The ring and little fingers are permanently curled, the little finger far more so. Whilst he has a little movement in the first and second joints of that finger, the plaintiff still cannot move that finger properly. Beyond some movement in the first joint of his little finger, the joint closest to his hand, the other joints do not move.
170 Dr Fish found significant clawing and constrictive shortening, and Mr O’Brien both found evidence of the curling of the fingers which was apparent to me when the plaintiff was in the witness box. Mr Ireland is the only practitioner who did not find this clawing.
171 Joint adhesions were also noted by Mr O’Brien and Mr Thomas.
172 All medical examiners found restricted movement of the right little finger.
173 The plaintiff now has less ability with finer movements and also less strength in his right hand. Many everyday tasks are affected by his injuries, for example doing up shoelaces and indeed, eating, as he cannot hold cutlery properly in his right hand. When doing these sorts of tasks, he tries to avoid using his ring and little fingers as they do not function properly and using them too much causes pain. These fingers still catch when putting things in his pocket.
174 As the plaintiff described, his finger injury affects him from the time he gets up every day. It is a particular problem for him as he is right-hand dominant.
175 The plaintiff’s partner confirmed the plaintiff’s various problems with domestic activities in her affidavit. Her evidence was not challenged.
176 Whilst the plaintiff has worked since the incident, the injury has impacted on his work capacity in a number of ways. He was unable to continue work with the defendant post incident despite his attempts to do so. After eight months off work, he obtained work with Dawsons but had to cease after five months because of problems using the spray gun with his right hand. He then changed to what ultimately became a management role with AMF for eight years. His return to spray painting work at STR was short-lived with right-hand difficulties and he is currently restricted to less hands-on work with Austruck in his current role as a leading hand.
177 Whilst counsel for the defendant submitted it would have been helpful to have had a report from the plaintiff’s knee surgeon,[85] I am satisfied the plaintiff has made a good recovery from that surgery and any ongoing knee problems do not affect the activities the plaintiff claims are restricted by his hand complaint.
[85]T43
178 Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s right-hand impairment, as a result of his problems principally with his little finger, are more than significant or marked and satisfy the statutory test of “serious”. Those consequences are permanent.
179 Accordingly, I grant leave to bring proceedings for damages for pain and suffering.
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