Sasalu v Coburg Services Pty Ltd and Worksafe Victoria
[2009] VCC 1283
•31 July 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-03240
| PANAPASA ROKOBIAU ("ROCKY") SASALU | Plaintiff |
| V | |
| COBURG SERVICES PTY LTD | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 May 2009 |
| DATE OF JUDGMENT: | 31 July 2009 |
| CASE MAY BE CITED AS: | Sasalu v Coburg Services Pty Ltd & Worksafe Victoria |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1283 |
REASONS FOR JUDGMENT
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Catchwords: s.134AB Accident Compensation Act 1985 – serious injury – injury to left
index finger – pain and suffering consequences
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Riordan | Nowicki Carbone |
| For the Defendants | Mr A. Middleton | Minter Ellison |
| COUNTY COURT OF VICTORIA | !Undefined Bookmark, I |
| 250 William Street, Melbourne | |
| HER HONOUR: |
Introduction
1 The first defendant operates a meat packaging and distribution company at which from 2000 the plaintiff was employed as a store person, labourer and meatpacker. By originating motion filed 11 August 2008 pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”) the plaintiff seeks leave to commence proceedings for damages in respect to injury to his left index finger resulting from a crushing injury as he operated a Cryovac machine on 25 January 2002.
2 The application is made under paragraph (a) of the definition of “serious injury”, that is serious permanent impairment or loss of function of the left index finger.
3 The application is for leave in respect to pain and suffering damages only. To succeed the plaintiff must prove a compensable injury and that the pain and suffering consequence of injury-related impairment, when judged by comparison with other cases in the range of possible impairments of his hand, is more than “significant” or “marked” and at least “very considerable”.
4 The decision of the Court of Appeal in Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 explains the correct approach to the statutory formulation for determining an application for leave to commence proceedings for damages. In summary, the plaintiff must establish:
(a)
a compensable injury after 20 October 1999 which, by definition, includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease;
(b) the nature of the injury; (c)
the consequences at the date of hearing, in this case confined to pain and suffering, to which compensable injury materially contributes; and
(d)
that those consequences are serious in the sense that they are permanent and “very considerable”.
The Areas of Dispute
5 The defendants admit compensable injury to the plaintiff’s left index finger, the only contest being whether the pain and suffering consequence, when judged by comparison with other cases in the range of possible impairments or loss of function of the left hand, meets the test of “serious” under the Act.
6 During submissions, plaintiff’s counsel referred to the judgment of Her Honour Judge Lawson in Laverty v F D & K R Pizzini (T/As Pizzini Wines) [2005] VCC 1402, a case involving a crushing injury to a worker’s non-dominant hand in which the worker was granted a serious injury certificate under paragraph (a) only in respect to the pain and suffering consequences.
The Evidence Called and Tendered
7 The plaintiff deposed to the accuracy of his affidavits sworn on 14 March 2008 and 18 February 2009 respectively. He gave limited evidence and was cross- examined.
8 The material tendered by the plaintiff, from his Court Book, consisted of:
(a) Particulars of Injury and a Statement of Issues; (b) the unchallenged affidavits of: (i) his wife, Sonia Sasalu, whose evidence generally corroborated the plaintiff’s reports of injury-related pain and ongoing restrictions in his social, domestic, sporting, relationship and work activities;
(ii) a current work colleague, Sam Chirkop, whose evidence generally confirms reports of pain and corroborates the plaintiff’s evidence that his disability impacts on his work activities and his access to overtime;
(iii) a friend and former work colleague at the first defendant’s factory, Andrew Backhouse, whose evidence generally corroborates the plaintiff’s evidence that his disability impacts on his sporting activities and on his ability to play games with his children;
(iv) former training and running partner, Paul Torini, whose evidence corroborates the plaintiff’s claim that difficulties caused by his injury-related impairment cut short their running training, an activity the plaintiff had resumed from 2000; and
(v) Tony Kilty, who in 1999 or 2000, along with the plaintiff, played Australian Rules Football in the over 35s Super Rules competition. His evidence indicates that during the one season they played together he viewed the plaintiff as a fit and talented footballer;
(c)
radiological reports of x-rays of the left index finger, dated 25 January 2002, and 19 September 2008, and a radiological report of an x-ray of the left finger and wrist, dated 25 January 2002;
(d)
report of treating Hand Therapist, Megan Fitzgerald, dated 31 October 2008;
(e) undated report from General Practitioner, Dr John Haddad; (f)
medico-legal reports obtained by the plaintiff’s solicitor from Plastic Reconstructive and Hand Surgeon, Mr Felix Behan, dated 30 March 2009, and obtained by the defendant’s solicitors from Plastic and Hand Surgeon, Mr Murray Stapleton, dated 7 August 2008;
(g) four pages extracted from the clinical file of St Vincent’s Hospital; and (h)
a document titled “Plaintiff’s Summary of Tax Returns”, dated 29 April 2009.
9 The defendants tendered, from their Court Book, a medico-legal report from General Surgeon, Mr Peter Battlay, dated 24 January 2003. The defendants also relied on the report of Mr Stapleton, dated 7 August 2008, tendered by the plaintiff.
10 At hearing, apart from noting the photographs tendered as part of the report of Mr Behan, together with counsel, I viewed the plaintiff’s injured left index finger and he demonstrated for the Court some of the functional deficits associated with this injury.
11 Insofar as any challenge to the plaintiff’s credit was mounted by the defendants, in the main it was directed to establishing the extent to which (if any) the plaintiff exaggerated his disability and any pain and suffering consequence. Whilst cross-examination exposed some likely exaggeration of the impact the impairment of the plaintiff’s index finger had on his ability to perform overtime at work, as my discussion below reveals, having regard to all of the evidence, I was nevertheless satisfied that the pain and suffering consequence described by the plaintiff met the test of “serious” under the Act.
The Plaintiff’s Background and Employment
12 This information was principally contained in the plaintiff’s first affidavit and updated in his second affidavit. In these reasons for judgment I have necessarily summarised this evidence.
13 The plaintiff is 45 years of age having been born in Fiji on 10 February 1964. He now has a wife and three children. According to his first affidavit, having completed Year 7 at school, the plaintiff worked as farmhand before spending about two years in the Fijian army working as a peacekeeper in the Middle East. In any event, by 1990 the plaintiff migrated to Australia and in the ten years or so prior to 2000, the plaintiff worked, firstly, as a brick cleaner and then for many years thereafter with the same employer as a general labourer.
14 Based on the evidence prior to his injury, the plaintiff was a very fit and active man, as well as a talented sportsperson. For instance, he said that to keep fit he regularly attended gym and boxed, he played rugby union until 2000, and in 2001 he played Super Rules football, a sport for which he had considered registering to play (but did not bother to) for the 2002 season. However, having competed in 1992 in the Stawell Gift, and in keeping with Mr Torini’s evidence, shortly prior to his injury the plaintiff had returned to running as a sporting activity.
15 In the years between 1993 and 1995 it appears that the plaintiff suffered sports or work-related injuries to his left knee and to his left and right wrists from which, according to his affidavits and, subject to taking glucosamine tablets for occasional pain in his left knee, with treatment he had made a good recovery.
16 Nevertheless, allowing for Mr Stapleton’s report, I think it clear that there were some residual issues associated with the left wrist injury suffered in 1993, that is the fracture and surgical repair of the plaintiff’s scaphoid and capitate bone, because this had apparently reduced the range of movement in the plaintiff’s wrist which Mr Stapleton said the plaintiff also reported as painful. This evidence, and the plaintiff’s concession in cross-examination that in the days preceding the injury to his left index finger “occasional” soreness in his left wrist led to a referral for review at the St Vincent’s Hospital, suggests that even if this was limited, pain from the wrist injury continued to impact on the plaintiff.
17 In any event, having eventually returned to full-time work with the first defendant, (and allowing for the discrepancies in the evidence on the timing of this) by either mid-2002 or 2004 the plaintiff left this employment after which he performed various labouring jobs until mid 2006 when he commenced employment with Chep Australia, where he continues to work, (he said and this was corroborated by his work colleague, Mr Chirkop) with difficulty as a pallet hand.
The Circumstances of the Injury and Treatment Thereafter
18 As I have already said, on 25 January 2002 the plaintiff, who is right-handed, suffered a crushing injury to his left index finger. In paragraph 13 of his first affidavit he described this occurrence in the following words:
“On the day of the accident, I had lined up four pieces of mean (sic) on the Cryovac machine. I was setting up the last piece of meat whilst the conveyor belt moved it towards the hydraulic seal. My finger was at the end of the conveyor belt, repositioning the meat, when the hydraulic sensor came down to seal the meat. It crushed my finger (sic) left index finger between the metal plates and I screamed. I removed my finger and saw that there was blood everywhere. I noticed that the end of my left index finger was hanging by its skin. I was in shock for about half an hour before I began to feel a terrible pain in my left index finger. A co- worker, Peter Richardson, and I hit the emergency after approximately 5 seconds of my finger being under the hydraulic sealer. The hydraulic sealer went up immediately.”
19 After reporting the injury the plaintiff was conveyed by ambulance to the Royal Melbourne Hospital. Apart from the x-ray results, in the absence of this hospital’s records, I have relied on the unchallenged summary provided by the Hand Therapist, Ms Fitzgerald, who said that she administered hand therapy between early April 2002 and June 2003. According to her report dated 31 October 2008 (and the plaintiff’s affidavit evidence) it appears that he underwent four operations. The first on 26 January 2002 involved, “Articular
component fixed with lag screw. Transverse fracture held with crossed Kwire, bone graft, pulley reconstruction, radial digital nerve repair and split thickness
skin graft”.
20 After the plaintiff’s finger became infected, on 21 February 2002 a further procedure was performed involving “Excisional debridement of left index
finger volar proximal interphalangeal joint wound and removal of non-viable
bone. Full thickness skin graft”.
21 On the following day the third operation was performed joining the plaintiff’s index finger to his middle finger which were separated in a fourth operation in March 2002.
22 As to ongoing treatment it appears that, despite regular therapy and compliance with a home exercise program, the proximal interphalangeal joint arthrodised and whilst the plaintiff claims to continue the daily rehabilitation program recommended by Ms Fitzgerald, as well as exercise recommended by Dr Haddad, the therapy sessions (which until March 2003 Ms Fitzgerald said were also designed to manage left wrist pain) had ceased by June 2003.
23 I note that during this period of therapy the plaintiff also suffered a work- related injury to his right wrist, which together with the injury to his finger led to the insurance agent seeking a report from Mr Battlay who examined the plaintiff in January 2003. In this report, amongst other things, Mr Battlay noted a stabilised but significant and permanent impairment of the plaintiff’s left index finger which in his opinion had not prevented a return to pre- accident duties and did not call for a change in the plaintiff’s employment.
24 However, if I accept, as I do, the plaintiff’s evidence (corroborated as it was by the other affidavit evidence and, in particular, the affidavit of Mr Chirkop), pain, sensitivity, stiffness, restriction of movement and loss of sensation have had a significant impact on the plaintiff’s capacity to perform unskilled manual work and to drive a forklift.
25 In these circumstances, I am unable to accept as currently relevant Mr Battlay’s further conclusion that the plaintiff’s disability causes minimal incapacity in occupations to which he is suited by his education and training.
26 Clearly, until September 2008, when his general practitioner said that the plaintiff first mentioned that his finger was painful, the plaintiff had not sought active treatment for his injured finger. This, he explained, was because Ms Fitzgerald had given him to believe (as it turns out correctly) that his finger would not improve and that he should, as he said he had, maintain his daily exercise regime.
27 As the materials before me show, the complaint to his doctor in 2008 generated further x-ray examination confirming, as it did, ankylosis of the joint and “associated mild fixed flexion deformity”. These results and the plaintiff’s complaint of pain, stiffness and his disability apparently prompted Dr Haddad to seek surgical opinion from the St Vincent’s Hospital which had not been received by the time he submitted his undated report. Because of its content this report was probably written in early 2009.
28 In any event, the hospital’s clinical notes indicate that in April 2009 the only treatment recommended was referral for further therapy by Ms Fitzgerald to help with the hypersensitivity the plaintiff continued to report.
29 Having re-examined the plaintiff in 2008 Ms Fitzgerald’s report pre-dates this referral, although, along with Mr Behan and Mr Stapleton, the treating hand therapist clearly accepted as genuine the plaintiff’s complaints of ongoing pain and sensitivity and the likely permanent impact of his disability in all spheres of his previously very physically active life where he required the use of his left hand.
30 Accordingly, apart from his daily exercises, until his recent referral to St Vincent’s Hospital there was no further formal treatment of the plaintiff’s injured finger, although in cross-examination the plaintiff also pointed out that during the day he put up with the pain generated by using his left hand but added that sometimes (that is two to three times per week and, particularly, towards the end of the week when his finger was sore from work) he takes Panadol before going to bed.
The Pain and Suffering Consequences Alleged to Constitute “Serious Injury”
31 As a result of his injury and ongoing impairment the plaintiff has a very obviously deformed left index finger with loss of dexterity, hypersensitivity to
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cold and contact (particularly at the tip of the finger), an inability to form a full power grip, and an inability to perform fine oppositional movements or a functional pincer movement. At hearing the plaintiff conceded that he could pick up a pen. Nevertheless, allowing for the evidence of deformity and sensitivity in his finger, I consider that even if he could grasp objects such as a pen or cutlery in a pincer movement, it is unlikely that he would have the function to properly employ these objects.
32 The pain and suffering consequence explained at length by the plaintiff in both affidavits, reported to the medical experts, and largely corroborated in the other affidavit evidence, was also commented on by the plaintiff during the hearing.
33 Central to the plaintiff’s case is his allegation that the impairment of his finger gives rise to pain “all the time”. By this evidence I understood the plaintiff to mean that activities, whether domestic, in the workplace, or recreational, all cause varying levels of pain if, for instance:
(a) he knocks his finger whilst performing his labouring duties, or whilst trying to mark a football when playing with his children; or (b) his finger is exposed to cold conditions either at work or when swimming with his family. 34 Therefore, accepting as I do that by the time the plaintiff injured his index finger he had reduced or stopped some of his sporting activities, I also accept as generally accurate his description (particularly that contained in paragraphs 21 to 47 inclusive of his second affidavit) of the restrictions his ongoing impairment places on his work, social and domestic activities, as well as on his relationship with his wife and children.
35 I also accept as probably accurate the plaintiff’s explanation that he can
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“literally do everything but it comes with pain”. For example, as the plaintiff noted during cross-examination, he can tie his and his children’s shoelaces although this is difficult and causes pain, no doubt a very frustrating consequence of this type of impairment.
36 Insofar as it is alleged that the impairment of the plaintiff’s hand impacts on his earning capacity, allowing for the plaintiff’s responses in cross-examination and the material before me, it is unlikely that as previously claimed his injury prevented him from working his pre-injury hours or more than 38 hours per week.
37 Relevantly, the plaintiff’s salary for the year ending 2008 contradicts this assertion, as does his concession (subject to the qualification that the plaintiff said that nearly every week he refused some of the overtime offered because after working “on the table all day” his hand is sore) that he performed overtime fairly consistently and “mostly” on Saturdays.
38 Nevertheless, this and Mr Chirkop’s evidence indicate that the pain and injury- related impairment of the plaintiff’s hand has probably slowed him in his work activities and has impacted on his availability to perform all of the overtime offered to him in the course of his employment.
The Recent Medico-Legal Evidence
39 As I have already said both the specialists, Mr Behan and Mr Stapleton, have accepted that the plaintiff’s complaints of pain and restriction are genuine. Arthroplasty, joint replacement or amputation, were not mentioned in the report from the hospital, although Mr Behan and Mr Stapleton both entertained the possibility of further surgical intervention. In Mr Behan’s case he clearly believes that amputation could address the vulnerability of the plaintiff’s finger to further workplace injury, as well as his complaints of sensitivity and pain in the damaged digit.
40 So far as Mr Stapleton is concerned, he believes that the plaintiff would be better off having the finger amputated at the proximal interphalangeal joint. However, because of the passage of time, and allowing for the responses given by the plaintiff at hearing, in assessing the consequences to the plaintiff of this work-related impairment, I have treated further surgical intervention as a possibility rather than a probability.
41 Moreover, in assessing this plaintiff I have accepted as likely, as Mr Stapleton did, that the plaintiff has been stoical in his approach to the ongoing limitations and discomfort he suffers as a consequence of this impairment.
Serious Injury
42 I have read the decision to which I was referred by the plaintiff’s counsel and I have considered other cases in the range of possible impairments. It does not necessarily follow from the fact that the plaintiff has not received active medical treatment since 2003 or taken strong painkilling medication or any painkilling medication during the day that, as submitted by the defendants, the consequences described by him fall short of the test. Clearly, each case must be decided on its own and all of the facts.
43 Despite the discrepancy in the plaintiff’s evidence as to the overtime performed, he has satisfied me that, as a result of traumatic injury to his left index finger, he suffers permanent (that is, likely to last into the foreseeable future) impairment of the function of his left hand, and allowing for the evidence and the pain and suffering consequence to which he referred (which includes the possibility of further surgical intervention) I am satisfied that the consequences for this plaintiff, when judged by comparison with other cases in the range of possible impairments or losses of body function, are fairly described as being more than significant or marked and as being at least very considerable.
44 In these circumstances I propose to make an order granting leave to the plaintiff to commence proceedings for damages in respect to pain and suffering consequences of serious injury.
Orders 45 I will hear from the parties as to the making of appropriate orders. - - -
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