Reeve v Jelena Hall Pty Ltd and VWA

[2010] VCC 1471

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. Cl-09-02804

STEPHEN REEVE	Plaintiff
v
JELENA HALL PTY LTD	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2010
DATE OF JUDGMENT:	8 October 2010
CASE MAY BE CITED AS:	Reeve v Jelena Hall Pty Ltd and VWA
MEDIUM NEUTRAL CITATION:	[2010] VCC 1471

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – assessment of consequences associated with injury to non-dominant left hand – application with respect to pain and suffering only.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R P Gorton QC with	Arnold Thomas & Becker
Mr S A Smith
For the Defendants	Mr B R McKenzie	Lander & Rogers
HIS HONOUR:

1          In this application, the plaintiff seeks leave to commence a proceeding seeking damages for the pain and suffering consequences of an injury suffered by him in the course of his employment with the first defendant on 21 June 2003. On that date, whilst working as a scaffolding labourer, the plaintiff suffered a crush injury in the form of traumatic fractures of three fingers of his left hand.

2          The impairment of function relied upon by the plaintiff is that of the left hand.

3          In the course of the application, the plaintiff gave viva voce evidence and was cross-examined. Otherwise the parties rely upon material tendered by them which included two affidavits sworn by the plaintiff, the first dated 17 February 2009 and the second dated 15 February 2010, a number of medical reports which were tendered by both parties and a number of medical files which were tendered by the defendants.

The Plaintiff’s Evidence

4          In his first affidavit, the plaintiff deposed as follows.

• On 24 June 2003, he injured his non-dominant left hand in the course of his employment with the first defendant when the tips of the index, middle and ring fingers of his hand were crushed by falling bricks. As the result of the injury, he was immediately taken to the Sandringham Hospital, where his hand was x-rayed, cleaned and strapped, and he was then discharged.

• The plaintiff subsequently attended his general practitioner, who arranged a referral to a hand surgeon, Mr Stephen Tham. Mr Tham initially arranged treatment in the form of physiotherapy for the plaintiff and eventually undertook a fusion operation upon the ring finger of the plaintiff’s left hand. The plaintiff underwent a complicated recovery associated with his surgery, as his finger became infected.

• Eventually the plaintiff returned to work with the first defendant, initially undertaking light office duties, but subsequently being referred for heavier tasks which included the use of a heavy jack hammer. The plaintiff described this task as “disturbing the fusion undertaken by Mr Tham”, with the result that he was referred back to Mr Tham, who undertook a re-exploration of the surgical site, but did not undertake any additional procedure to the ring finger.

• Following the second surgical procedure undertaken by Mr Tham, the plaintiff returned to work with the first defendant and undertook light office duties. He said that he did not like this work, and that his employer made him feel uncomfortable as he performed that work, with the result that he eventually negotiated a redundancy agreement.

• After he was made redundant, the plaintiff attempted sales type work on two occasions with two separate employers. He described himself as being unsuccessful in each of those jobs. In February 2008, he obtained work with a landscaping contractor and he continued in that work until June 2008, when he underwent an operation on his knee. He said that he returned to work in approximately October 2008, but was then laid off due to a lack of work.

5          At the time of swearing his first affidavit, the plaintiff described the following symptoms associated with the injury to his left hand:

(i)	his left fourth finger was crooked, flattened and shortened. He was unable to bend the distal joint of that finger and could only partly bend the joint below the distal joint. He described his index finger as being “the same as his left fourth finger”;
(ii)	whilst there were occasions when his hand and fingers were pain-free, he had pain in his hand most of the time, which pain was exacerbated by using his hand to lift or grip things;
(iii)	he was unable to make a proper fist with his left hand;
(iv)	his fourth left finger was very tender “at a point where a piece of brick went right through it “;[1]
(v)	his work as a labourer aggravated the symptoms in his hand, with the result that “I take a great deal of over-the-counter painkilling medication”;
(vi)	he had effectively given up playing golf, which prior to the injury he played “two or three times a month”; he had difficulty playing ball sports and encountered difficulty driving a manual car. In this respect, the plaintiff described difficulty in manipulating manual gears or driving a car which did not have power steering;
(vii)	he had been unable to return to his work as a scaffolder and was required to undertake work which was “not my normal and preferred occupation of actual scaffolding”.[2]

[1]             Plaintiff’s Court Book (“PCB”) 16

[2]             PCB 17

6          In his second affidavit, the plaintiff deposed to the fact:

(i)	that he was currently employed by a landscaping company and that his work involved activities in the nature of pushing wheelbarrows, shifting soil and planting plants;
(ii)	that he continued to have trouble with his left hand, which involved pain which was present in the hand every day, and which was aggravated by physical activity;
(iii)	that he employed over-the-counter medication in the form of Panadol to manage his pain and that he was required to “take something most days”;[3]
(iv)	that his injury prevented him from returning to his pre-injury recreational activity of golf and from returning to his previous employment as a scaffolder.

[3]             PCB 19

The Plaintiff’s Viva Voce Evidence

7          The plaintiff described a loss of sensation, together with hypersensitivity as being present in the fingers of his left hand. He said that if he tapped or knocked his fourth finger, “I get like that needle effect every time”.

8          The plaintiff said that he was in the process of establishing a fencing and gate business and that until that business had expanded sufficiently so as to generate an appropriate level of income, he proposed to undertake garden maintenance for an employer known as “Miracle Garden Men”. He described his work as a fencing contractor as requiring him to erect fences and gates which would involve him digging post holes approximately 600-millimetres deep and 200-millimetres round, and that he would undertake this activity either with the use of an auger or a shovel.

9          The plaintiff described himself as being right handed. He said that he possessed a “medium rigid truck licence”[4] and that after the accident he had undertaken work which had involved truck driving for the purpose of delivering a bobcat on to various sites. He said he had on occasions driven a bobcat on domestic sites and that he had undertaken work which involved pushing wheelbarrows, shifting soil, and planting plants. The plaintiff said that he experienced difficulty in the course of his landscaping work when handling paving stones, because they were awkward and heavy, and that when he was required to handle those stones, the needle sensation present in his fingers could be initiated.

[4]             Transcript (“T”) 20

10        The plaintiff said that his treatment had been administered substantially by Mr Tham, who had told him after the completion of his surgery, that nothing further could be done for him.

11        The plaintiff agreed that he had not mentioned problems with his hand to his general practitioners at the Dromana Medical Centre, or to a consultant physician, to whom he had been referred. Nor had he sought any treatment for his left hand from an orthopaedic surgeon, Mr Young, to whom he had been referred by reason of an injury suffered to his left knee.

12        The plaintiff said that he had continued to play football with his children, that he was capable of playing beach cricket which involved “just having a little hit and catch”; that the only medication which he presently used was over-the-counter analgesia and that he would take one or two Panadol tablets three or four times a week, for the purpose of managing his pain.

13        The plaintiff said that he had not discussed surgery with any other doctors and that:

“Mr Tham told me there was no further things that he could do, so I virtually just took him for his word, he just said that was – you know, that was all he could do and I moved on and went on, and I’ve never done anything about it, so – because there was nothing that he said – and he was the surgeon, so I never thought there was anything else to be done”. [sic]

14        It was put to the plaintiff that he exercised by making use of a boxing bag. The plaintiff described the exercise involved in this activity as being “for the cardio side of things” and that it involved just light tapping, with his hands protected by boxing gloves, such that although he suffered some pain in this activity, he continued to pursue it.

15        The plaintiff described driving a motor vehicle as causing him pain and whilst he accepted that he had the ability to operate vibrating power equipment, he said:

“Well I can do them but I do it with – pain, yes, when I do them. It’s like

anything that I do, but I just do it.”

The Medical Evidence

16        Mr Stephen Tham, a specialist hand surgeon, in a report dated 26 February 2010, describes the plaintiff consulting him some eight weeks after the accident. Mr Tham describes the plaintiff as presenting with a complaint of stiffness of his three fingers, particularly at the interphalangeal joints. On examination, Mr Tham detected a range of motion of between nought and five degrees of the index finger; nought degrees at the long finger; and nought degrees at the ring finger. At the proximal interphalangeal joint, Mr Tham described the presence of a mild degree of stiffness, with a range of motion of between nought and ninety degrees in the left index and ring fingers, and between five and ninety degrees at the long finger. He described the presence of marked tenderness of the distal interphalangeal joints of all three digits.

17        Mr Tham recommended treatment in the form of physiotherapy; however when he reviewed the plaintiff on 12 March 2004, given the presence of marked tenderness and irritability of the left long finger, a joint fusion was undertaken of that finger.

18        Mr Tham describes reviewing the plaintiff irregularly until October 2004, during which time he continued to complain of activity-related discomfort, particularly to the distal interphalangeal joint of his left ring finger. Mr Tham described the plaintiff’s grip strength at 50 kilograms in his right hand and 18 kilograms in the left.

19        Mr Tham opined that the plaintiff had suffered crush injuries to his left index, long and ring finger tips, with fractures involving the distal phalanx of each of those digits, with the presence of an intra-articular fracture to the distal interphalangeal joint of his left long finger and ring finger. At the time he last reviewed the plaintiff in October 2004, Mr Tham expressed the opinion:

• that his symptoms of pain at distal interphalangeal joints, particularly of the index and the long finger, may worsen with time;

• that the plaintiff should avoid activities which precipitate his symptoms;

• that the plaintiff should undergo job retraining so as to avoid lifting weights or using a jack hammer.

20        Mr John Hart, a surgeon, examined the plaintiff on 9 January 2007. He found the plaintiff to present with limited motion at the distal interphalangeal joints and proximal interphalangeal joints of the index and little fingers in his left hand, but noted that the metacarpal phalangeal joints of the fingers moved normally. He described the distal interphalangeal joint of the ring finger as being ankylosed in ten degrees of flexion with the presence of slightly limited motion of the proximal interphalangeal joint of that finger. Mr Hart expressed the opinion that the plaintiff was presenting with osteoarthritis of the distal interphalangeal joints of the index and middle fingers of the left hand and with an ankylosis of the distal interphalangeal joint of the ring finger. He also described the presence of limited motion of the proximal interphalangeal joints of his three injured fingers.

21        Dr Philip Slattery, a hand surgeon, examined the plaintiff on 18 January 2010. On examination of the plaintiff’s left fingers, Dr Slattery found that the proximal interphalangeal joints had full movement, but there was considerable stiffness of the distal interphalangeal joints. He described the plaintiff’s left ring finger as being fused and as being approximately eight millimetres shorter than the right ring finger, and noted that the plaintiff had a “very sensitive palmar scar”. He observed the presence of a positive Tinel’s sign over the ulnar aspect of the scar and the presence of very impaired sensation, which was an indication of the presence of a nerve injury. Mr Slattery opined that the plaintiff was fit to continue his pre-injury manual work but that due to the stiffness of the joints of the injured fingers of his left hand, he would always have difficulty with fine manipulative tasks. He further opined that the plaintiff’s ongoing pain in his left ring finger was due to the presence of a neuroma of the digital nerve, and that consideration could be given to the exploration of the digital nerve. He observed, however, that a successful outcome associated with that procedure could not be guaranteed.

22        Dr Charles Castle, an occupational physician, examined the plaintiff on 19 January 2010. In a report dated 1 March 2010, Mr Castle expressed the opinion that the plaintiff was likely to develop osteoarthritis of his left index, middle and ring fingers at an earlier age than he otherwise would have expected to do, with the result that it was:

“… likely that this will mean he will be unable to continue to do forceful work with his left hand, work (sic) earlier than might otherwise be the case.”

23        He opined that the plaintiff would be unable to return to employment as a scaffolder, and further, that his injury was likely to restrict his ability to find work in the open labour market.

24        Mr Peter Battlay, orthopaedic surgeon, examined the plaintiff on three occasions between 25 September 2003 and 19 October 2004. When he last reviewed the plaintiff, he opined:

• That the plaintiff suffered from degenerative changes in the index and middle finger at the interphalangeal joint and has a sound arthrodesis of the ring finger at the distal interphalangeal joint.

• That the plaintiff was fit for moderate work, but perhaps not working as a builder’s labourer.

25        Mr Damian Ireland, a hand surgeon, examined the plaintiff on 8 July 2009. He found the plaintiff to present with a grip strength of 38 kilograms in the right hand and between 14 to 18 in kilograms in the left hand. He noted an inability in the plaintiff to flex the distal joints of the index, long and ring fingers, but that the little finger flexed normally. He described the presence of moderate discomfort in the distal joints of the index and long fingers and queried whether the plaintiff was fully co-operating in the tests designed to measure his grip strength. Mr Ireland opined that the plaintiff should not engage in employment in which he was required to lift weights in excess of 15 kilograms or in work which required sustained power gripping, such as would be required for the use of a sledge hammer, shovel or a crowbar.

26        In a further report dated 1 September 2010, Mr Ireland said that he had obtained a history from the plaintiff in the course of an examination conducted on that date, of the presence of tenderness over the distal joint of the ring finger which felt like “a pin going through my finger” and that this sensation was a daily occurrence and presented itself with either light or firm pressure. Mr Ireland took no issue with the accuracy of the plaintiff’s description in this regard and opined that the plaintiff’s complaint of tenderness over the distal joint of the left ring finger and the compromise of sensation within that finger was likely to be caused by a discontinuity of the distal nerve at the flexion crease of the distal joint. Whilst he opined that surgery could be undertaken to reduce the symptoms associated with the neuroma which was present in the left ring finger, he observed that there was every possibility that surgical treatment to address the neuroma may not lead to any significant improvement. Finally, Mr Ireland opined that the plaintiff did not present with any “evidence of any non-organic component”.

Finding

27 In deciding the issue which arises in this case, namely, whether the plaintiff’s pain and suffering consequences, when judged by a comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than significant or marked and as being at least very considerable, I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury has occasioned to him, and determine where the facts of this case sit in the broad spectrum of cases. The task which I am required to undertake has been described as involving “a value judgment in which matters of fact and degree, and of impression, are operative”,[5] and one in which I am required to take into account –

“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of the consequences, may be informed, to some extent, by what is retained.”[6]

[5]             Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181

[6]             Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260

28        In an application of this nature, I am required to exercise a value judgment as to whether the consequences to the plaintiff of the injury suffered by him are appropriately described as being “more than significant or marked and as being at least very considerable” when considered within the broad range of accident-related impairment and disability.

29        My impression of the plaintiff as he gave evidence was that he was a stoic person who was doing his best to limit the effect of his injury upon his life and lifestyle. In my opinion, the fact that the plaintiff had returned to heavy physical work is indicative of this, as is the fact that he has not let his fragile emotional state or the injury which he suffered to his knee stand in the way of commencing his own business, and at the same time working on a full-time basis.

30        I accept the plaintiff’s evidence that he has not sought medical treatment after having been discharged from the care of Mr Tham by reason of the fact that at the time of discharge he had been advised by Mr Tham that there was nothing further that could be done for him. In these circumstances, I do not consider that the failure by the plaintiff to avail himself of any treatment which might be available to him provides any indication as to the level of his incapacity.

31        In the course of the proceeding, it was put on behalf of the defendants that the fact that the plaintiff had not complained of any pain or restriction of movement in his left hand when he had attended medical practitioners for treatment for conditions which included, amongst other things, a knee injury involving a bucket handle tear of the meniscus and an eye injury which had been occasioned when a stick had made contact with the plaintiff’s eye, should be used by me to make a finding either adverse to the plaintiff’s credit, or to the effect that the symptoms of which the plaintiff complained in his left hand were not so severe that they warranted treatment.

32        Given:

(i)	the circumstances which generally gave rise to those presentations, namely, the occasioning of an acute injury;
(ii)	the plaintiff’s evidence, which I accept, that in the context of the advice given to him by Dr Tham, he considered he had no further treatment options;

I do not find this submission to be at all persuasive.

33        I am satisfied that:

(i)	it is appropriate to regard the plaintiff as being a manual worker given his employment history;
(ii)	the plaintiff’s injuries are stabilised;
(iii)	the plaintiff experiences pain which is present in his hand every day and which is aggravated by physical activity;
(ii)	given Mr Ireland’s assessment as to the prospects of successful surgery, the plaintiff’s decision not to undergo surgery is reasonable and is unlikely to change;
(iii)	the presence of osteoarthritis in the plaintiff’s fingers is likely to have a negative influence upon his prognosis. (In this regard, I note the opinion of Mr Castle that this condition makes it likely that the plaintiff “will be

unable to continue to do forceful work with his left hand work

(sic) earlier than might otherwise be the case”.[7]);

(iv)    the plaintiff suffers from diminished grip strength in his left hand to a very significant degree; and given the long period of time during which this diminution in grip strength has been present, I am satisfied that it is appropriate to regard that symptom as being permanent;

(v)     the plaintiff, on a permanent basis, will have difficulty performing fine manipulative tasks;

(vi)    the frequent sharp pains which the plaintiff experiences in his left hand are caused by the nerve injury described by Mr Ireland and Mr Slattery, and that these symptoms are likely to be permanent;

(vii)   the plaintiff’s injuries will permanently prevent him returning to his trade as a scaffolder and from engaging in work of an unrestricted heavy physical nature;[8]

(viii)  the plaintiff’s injuries preclude him from playing golf; they cause him some difficulty whilst driving a car; and have an adverse impact upon any activity involving the use of his left hand.

[7]            I note however, the necessary imprecision involved in expressing this opinion as to the time at which the incapacity will occur and consider that this should, to some extent, diminish its force as a factor to be taken into account, as should the fact that Mr Castle is largely alone in expressing the opinion.

[8]            In July 2009, Mr Ireland opined that that the plaintiff should not engage in employment in which he was required to lift weights in excess of 15 kilograms or in work which required sustained power gripping, such as would be required for the use of a sledge hammer, shovel or a crowbar. The plaintiff has however, undertaken work of that type. Mr Slattery has opined that the plaintiff remains fit for his pre-injury work. This, in my opinion, is unrealistic given the nature of the plaintiff’s injury. Given the variance in medical opinion on this issue, but taking into account the plaintiff’s post-accident work history, I am satisfied that this finding is justified.

34        Whilst I accept the plaintiff’s evidence that the injury to his left hand did not interfere in his ability to undertake physical exercise in the form of boxing with the use of a punching bag, because the boxing gloves he wore largely protected the sensitive areas of his left hand, the plaintiff’s activity in this regard tends to confirm the impression I formed that his symptoms generally exposed him to tolerable levels of discomfort in his left hand, which symptoms, when exacerbated by heavy physical work, were managed with the ingestion of modest of non-prescription analgesia.

35        In assessing the consequences of the injury that the plaintiff suffers, I regard it as significant:

• that the plaintiff’s injury has been occasioned to his non-dominant left hand, and that, in these circumstances, it has marginally less impact upon his day-to-day life than an injury to a dominant hand.;

• that the plaintiff has been able to manage, albeit with some pain, the physical work involved in landscape gardening;

• that the plaintiff is able to manage the physical demands to which he is presently exposed in working full-time in his garden maintenance job and after-hours and on weekends as he seeks to establish his fencing business, and that each of these occupations involve, at the very least, moderate levels of physical labour;

• that the plaintiff has not for many years needed to consult a doctor to assist him in managing his pain levels and that notwithstanding the relatively strenuous nature of his work, he is able to manage his symptoms with resort only to modest amounts of over-the-counter analgesia.

36        In my opinion, each of these matters provides a sound basis upon which to assess both the level of the plaintiff’s pain and the consequences of his injury to him, and in combination they militate against a finding that the plaintiff suffers from a serious injury as defined by the Act.[9]

[9]             The Accident Compensation Act 1985 (as amended).

37        Further, I note that:

• the plaintiff is able to manage the physical activity required of him in his work, with resort only to over-the-counter analgesics which he employs at a rate which has recently reduced to one or two tablets taken three or four times a week;

• the plaintiff accepted that he was not generally restricted in undertaking the activities associated with day-to-day life.

38        Each of these facts do not, in my opinion, speak in support of the presence of high levels of pain.

39        Notwithstanding the presence of the numerous effects of the plaintiff’s injury which influence his lifestyle in a negative way, when I consider the definition of serious injury as employed by the Act, I am persuaded that the plaintiff’s impairment is appropriately described as being significant or considerable, but I am not satisfied that it is such that it is appropriately described as being more than “significant” or “marked”, and as being at least “very considerable”.

40        In the circumstances, I am not satisfied that the plaintiff has established his entitlement to the leave which he seeks.

41        I will hear the parties as to the orders they seek and as to the question of costs.

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