Sasalu v Victorian WorkCover Authority
[2021] VCC 166
•25 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-01024
| PANAPASA ROKOBIAU SASALU | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2021 | |
DATE OF JUDGMENT: | 25 February 2021 | |
CASE MAY BE CITED AS: | Sasalu v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 166 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment to the left thumb/hand ꟷ pain and suffering – range – aggravation
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Sasalu v Coburg Services Pty Ltd & WorkSafe Victoria (unreported) VCC; Haden Engineering Pty Ltd v McKinnon 2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Peak Engineering & Anor v McKenzie [2014] VSCA 67; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr B Johnson | Arnold Thomas & Becker |
| For the Defendant | Ms C Spitaleri | Lander & Rogers |
HER HONOUR:
1This 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 JBS Australia Pty Ltd (“the employer”) on 21 February 2013 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3The 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.”
4The body function relied upon in this case is the left thumb/left hand (“the injury”).
5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By 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”.
9Section 134AB(38)(h) of the Act requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I 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.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Petkovski v Galletti[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2][1994] 1 VR 436 approved in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
12The plaintiff relied upon two affidavits and was cross-examined. He also relied on an affidavit sworn by his wife, Sonia, on 4 January 2021. 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
13The plaintiff is presently fifty-seven, having been born in February 1964 in Fiji. He lives with his wife and three teenage children.
14Not having completed secondary school, the plaintiff joined the Fijian army. In 1990, he left the army and came to Australia, and worked in a variety of physical roles, mostly in the meat industry. He worked at a meatworks “Case Ready” for about ten years and with Coburg Services Pty Ltd, known as Coburg Meats, for two years. He then worked at a pallet company for seven years and had other minor jobs before starting work with the employer in 2012.
15The plaintiff has suffered various injuries to his left hand and wrist while working in Australia. In 1993, he had a crush injury to his left wrist while working for Case Ready. In early 2001, he injured his left index finger working at Coburg Meats and subsequently, underwent a fusion.
16The plaintiff continued to experience mild pain on occasion as a result of these injuries, although he had learned to cope with them over many years and they did not restrict his ability to work as at the said date.
17The plaintiff also had some neck pain for a limited period of time following a transport accident in 2016, and right knee pain on occasion prior to the incident, which did not affect his work or daily activities.
The incident
18On the said date, the plaintiff had been operating a meat saw for about nine-and-half hours and was tired and exhausted. He was cutting lamb carcasses into quarters that were going to be supplied to various supermarkets.
19The plaintiff was approached at the end of the day by his supervisor and told that he was required to keep working. He advised his supervisor he was exhausted, but he felt compelled to keep working.
20The plaintiff’s left thumb made contact with the cutting saw (“the incident”).
21The plaintiff immediately experienced excruciating pain, with his thumb split down the middle. Fortunately, as he was wearing gloves, that held his thumb together.
22An ambulance took the plaintiff to hospital and he underwent emergency surgery. Following discharge, he underwent hand therapy. He returned to light duties after two-and-a-half months off work.
Pain and restrictions
23As at August 2019,[3] the plaintiff continued to experience significant pain, numbness and restrictions in his left thumb. He had no feeling beyond the middle joint of his thumb. He experienced constant jolts of pain when he inadvertently used his thumb. He experienced pain in the area of the extensive scar of his thumb when it was touched, or when he inadvertently bumped it on things, and the scar caused him constant discomfort.
[3]First affidavit
24The pain increased in colder weather and the plaintiff was constantly soaking his thumb in warm water to relieve the increase of symptoms that he experienced in colder months. He frequently wore gloves in an attempt to keep his thumb warm.
25The loss of dexterity and strength in his left thumb was particularly pronounced. He was more acutely aware of it as he had become more dependent on that thumb following the previous injuries he had suffered to his left upper limb, and he was now struggling to cope.
26The plaintiff had tried to rehabilitate himself as much as possible. He had undergone a significant amount of hand therapy and completed home exercises, but had ceased his treatment as he was not experiencing any lasting relief.
27The plaintiff relied on over-the-counter pain medication such as Panadol, as he did not want to become addicted to stronger medication and was worried about its effect on his ability to operate machinery at work. He then tried to limit the medication to twice a week to help him cope with work.
28While the plaintiff had returned to full-time work, he had never been able to return to work as a meat worker. The ongoing pain and restrictions in the left thumb prevented him from being able to use the tools and equipment required when cutting meat. He no longer had any strength in his left hand and his pincer grip was poor. He had lost a significant amount of dexterity in his left hand and could not make a fist.
29The plaintiff’s inability to work in that role was a significant loss, as this was the type of work he had been able to maintain in Australia. He enjoyed it and was very experienced, and had no problems finding work in that area.
30As of August 2019, the plaintiff’s duties with the employer were restricted to driving a forklift, although constantly using his left hand to operate it increased left thumb pain. He was not able to complete many of the duties associated with that role, such as manually stacking and unstacking pallets.
31The plaintiff then worried about the future and was aware that he was fortunate that his employer tolerated his restrictions, and he worried how he would cope if he had to obtain alternative employment, and was unsure what type of role would accommodate his restrictions in the future.
32In his second affidavit,[4] the plaintiff gave further details of his return to work.
[4]Sworn 1 January 2021
33After the incident, he did not continue to work in the boning area and requested a transfer to the storerooms as a forklift driver. He started in that role when he was able to return to light duties and then trained to work on a high-reach forklift in the cold store area.
34The plaintiff decided to change jobs because he wanted to get out of the cold. The cold was causing him too much pain in his thumb.[5] He agreed his resignation letter made no reference to left thumb or left hand pain.[6]
[5]Transcript (“T”) 10
[6]T11
35Working in the freezer for an hour at a time caused the plaintiff’s left hand and thumb to become extremely sore and painful. The ten-minute break after every hour was not enough for him and he generally took longer than that because of the pain in his left hand and thumb. Even though they wore gloves, he brought his own cotton gloves to wear underneath the company gloves to provide a double layer and let him stay in the cold store area for the required time.
36Several years ago, other workers complained about him taking longer breaks than them and he was spoken to by management about it; however, he continued to require taking longer breaks to be able to continue working.
37The plaintiff confirmed he had to take longer breaks than the other workers because of his problems with the cold. This was against his nature, because he was previously able to work without restriction when he was in the boning area.[7]
[7]T20
38Every day before work, he filled up a sink with warm water and let his hand sit in it to warm it up before he needed to go to work. He had been doing this since the first finger injury.[8] He massaged his left hand and thumb with this right thumb and still did that every day.
[8]T9
39Although the plaintiff continued working in the cool room, he had been wanting to move out of it for some time because he had struggled for seven years with daily pain from working there and took Panadol nearly every night as a result of the pain.[9]
[9]Second affidavit
40The plaintiff now worries a lot about the future. He is very aware that his left hand does not function properly, and he has a background in manual labouring. While he has an understanding employer presently, he is fearful about obtaining any ongoing employment after his probationary period, and he feels that his inability to find work in the general marketplace is going to remain restricted for the rest of his life.
41The plaintiff was cross-examined in relation to the affidavits from the employer’s employees.
42The plaintiff “probably” spoke to HR manager, Pauline Rhodes, and told her he was leaving because he had got a better job at the hospital. He “probably” did not tell her he was resigning because he was having difficulties at work because of his left thumb and the freezers.[10]
[10]T12
43The plaintiff did complain to his manager before he resigned. There were a few times the manager had to pull him out because he was taking too long when he came out of the freezer. He complained to the manager, Aiden, about his thumb being sore and told him it was going to take a while to get back into the freezer. He did not know whether the manager told Pauline or not. He also told the union delegate – Georgina.[11] So this has been an ongoing thing. He did not think he had to tell Pauline he was resigning because his thumb was sore. It was sore every day.[12]
[11]T23
[12]T12
44The plaintiff agreed he had an exit interview with Ryan Hodkinson before he left. Mr Hodkinson competed the exit form and ticked the box indicating the plaintiff was leaving the employer because of a career opportunity. The plaintiff never told HR where he was going.[13]
[13]T13
45Having given notice, the plaintiff caught COVID-19 and was quarantining at home when Ms Rhodes told him he had to come in and have a test. He refused to do so.[14]
[14]T14
46“Maybe” he told Pauline that he was going to work at a hospital. He could not remember. But he could seriously swear he never wanted to tell HR where he was going. He might have told one of his work friends, but he never intended to tell HR because he did not trust them, because Pauline had called him to come in and get a test when he was home self-quarantining.[15] “But if you want to trust a woman that’s telling someone to go when they have COVID, sitting home and you can trust her, go ahead.”[16]
[15]T18
[16]T19
47The plaintiff could not remember what he had said to a supervisor, Murray McKenzie, when it was suggested that he had complained to him about his feet. The plaintiff knew he complained about his thumb, but he always wrapped up his feet because when they were cold, his whole body was cold, and it made his thumb even worse. That was why the plaintiff always wrapped up his feet when he went into the freezer.[17]
[17]T21
48The plaintiff disagreed he was ever given permission for longer breaks. As a matter of fact, they wanted him to go back into the freezer.[18]
[18]T22
49The plaintiff agreed he was moved to another area, but it was still cold there. They moved him because obviously he was complaining about his thumb being sore.[19]
[19]T23
50The plaintiff could vaguely remember getting a warning about putting plastic bags for meat in the microwave in September 2014, but that was wrong. He remembered putting his socks in the heater to warm them up. He never put anything in the microwave. He was putting his socks in the heater, because if his feet got cold, his whole body got cold, and his thumb got even sorer. He then said gloves, not socks, were involved. He got into trouble for putting a woollen glove on the heater. He then “took back” this comment. He remembered putting gloves in the heater. He was not making it up. It was a woollen glove.[20]
[20]T26
51In about August 2020, the plaintiff started work as a clinical support assistant for Thomas Embling Hospital in Fairfield. He is getting paid a little bit more than he was paid with the employer.[21]
[21]T10
52This is essentially a security role in which the plaintiff talks to patients and engages in activities with them. If they are aggressive, he is required to passively constrain them. Recently, there was an incident where he grabbed an aggressive patient with his left hand, causing him pain and making him aware of his lack of strength.
53The plaintiff is still on a six-month probation period and is fearful he may not be able to adequately restrain a physically aggressive patient using his left hand, or may re-injure that limb, but he needs the job and has to work. If his right hand was busy with something else, he would not be able to restrain a patient with his left hand because of his injury.
54The plaintiff misses being able to use his skills as a saw man and feeling a sense of accomplishment from completing tasks using his hands.
Other consequences
55In his first affidavit, the plaintiff deposed he had always been an active person playing various forms of football, and his son was then playing AFL at a high level, and his daughter was playing representative netball. His ongoing pain and restrictions in his left hand prevented him from being able to practise those sports with his children without experiencing significant pain.
56The plaintiff had problems trying to catch a ball due to his inability to move his thumb and the pain when he tried to handball, catch or kick the ball due to the contact he made with his hand and his ball. Prior to the incident, he practised sport with his children most days, but now avoided it and experienced pain when he tried. That was a significant loss, as that was an important part of his life and a way of being active with his children.
57The plaintiff then required assistance from his family to complete simple tasks such as doing up his shoelaces or buttons on his shirt. When he put his socks on he felt pain. He struggled to use his keys to open the door because of lack of dexterity in both hands. He was constantly surprised and humiliated by his restrictions.
58When he cooked, the plaintiff struggled to use his left hand to carry pots or pans, and his wife got upset when he dropped them, and that caused friction in their relationship.
59His left thumb injuries then continued to have a significant impact on him.
60In his second affidavit,[22] he confirmed these consequences are ongoing.
[22]Sworn in January 2021
61Some nights, he does not have pain, but if he has been more physically active at work with his left hand and thumb it becomes more painful or when helping hanging out the washing. He still tries to assist with housework, like vacuuming and mowing the lawn, but he finds the vibration, particularly from mowing, causes pain. While washing the dishes, he finds picking up knives and forks more difficult, as they slip out of his left hand.
62The plaintiff recently assisted his wife sand a door. He tried using an electric sander but had to stop. He then had to use his right hand and use sandpaper instead. They also painted the ceiling and he found holding the painting pole caused pain in his left hand and left thumb, and he needed to break up the activity into smaller periods. That is the way he also copes with other household tasks.
63Simple activities like washing the car cause pain in his left hand and thumb because of the cold water, but he does it. He has to do it and puts up with the pain.
64The plaintiff still finds activities like gripping and grasping cause pain, such as doing up buttons on a shirt and pants, tying up shoelaces, cutting vegetables and meat or cleaning fish. He has dropped glasses from his left hand as recently as last week. That had happened about three or four times so he avoids using his left hand to pick up or hold glasses.
65Cutting his left thumb nail can cause pain because he lacks sensitivity in the tip of the thumb. He can overcut the nail and it causes it to bleed and become more painful.
66The plaintiff’s son, Oscar, aged nineteen, currently plays with the Western Bulldogs VFL team. Since his injury, the plaintiff only occasionally played football with him and is restricted in doing so. Sometimes he can mark the ball, but normally struggles to mark the kicks. He misses the interaction of being able to play football with his son in an unrestricted manner.
67The plaintiff’s daughter, Shaid, now sixteen, plays netball for City West Falcons in the Victorian Netball League. He likes to practise with her. He can to a greater extent than practising football with Oscar, but he has to be careful when doing so, and has more difficulty throwing the ball with his left hand and thumb.
68About last year when still working for the employer, the plaintiff attempted playing golf to try a new hobby and went to a driving range after work but found the action of gripping the club caused his left thumb and hand to become too sore. He had pain at night as a result. He bought a second-hand golf bag, but had stopped practising after several months.
69The plaintiff is concerned about developing osteoarthritis in his left hand and thumb and being more restricted in his activities.
70In cross-examination, the plaintiff was asked to compare the consequences of his 2002 left index finger injury, described in his 2009 affidavit, to the claimed consequences of his left thumb injury.
71The plaintiff agreed both affidavits referred to difficulty in gripping objects and exerting force with his left hand, causing him to drop things. Both mentioned problems with loss of flexibility and dexterity. Grip strength issues were mentioned in both, but this has got worse now, as his grip is worse. He gave the example of “literally nearing crying from pain” when he was kicking the football with Oscar.[23]
[23]T30
72Another of example of how it was worse was when even the other day he grabbed a glass with his left hand and dropped it. Dropping things continues to be “a big, big problem”.[24]
[24]T32
73The other day his wife asked him to nail something, and he could not even hold a nail properly. These were little things he did not really notice until he had to do things around the house. While he had problems earlier using a hammer and nails because of his finger, he thought it was even more difficult because of his thumb.[25]
[25]T31
74The plaintiff agreed it was a problem doing up his shoelaces in 2009, but it is worse now, because instead of one problem he has got two: he has got his index finger and he has got the thumb. He hurt the finger while ago, and the thumb now is worse, and, not only that, he has pain every day: “I’m the one experiencing it every day not my wife, not my kids, nobody else, I’m the one experiencing it and I’m telling you it’s getting worse.”[26]
[26]T33
75The other night, the plaintiff was woken when he lay on his thumb. He had to get up and take some medication. He was living with this pain every day. He has to get up at 5.00am to go to work, and his sleeping is so “stuffed up” because of this. He has now started taking Phenergan.[27]
[27]T33
76The plaintiff agreed left index finger pain woke him in 2009 and he was also then taking tablets for that. He agreed he had issues with chopping vegetables and fruit from the 2002 injury, and they had continued.[28] He had had issues with mowing the lawn since 2002, but “now it just doubled”. His thumb was even sore then in the witness box.[29]
[28]T34
[29]T35
77The plaintiff plays football with Oscar because he asks him to, but he is in excruciating pain, and sometimes he just stands there and looks at Oscar and says “Does this boy know I’m in so much pain?”, but he does not tell Oscar that.[30]
[30]T35
78The plaintiff confirmed he described problems with his index finger when attending Auskick with Oscar in 2009 and said: “Everything I do cause[s] me pain, everything I do.” In answer to my question, he said now he is feeling like it is worse. When he kicked the footy with Oscar in 2009, his finger was sore, but just recently when he did so, the plaintiff was literally nearly crying from the pain, and he is noticing the pain is getting worse.[31]
[31]T36
79The plaintiff agreed that consequences claimed in the current application had been experienced by him since he injured his left index finger.[32]
[32]T37
80The plaintiff agreed he could now lift shopping with his left hand, and he could lift up to 5 kilograms.[33]
[33]T38
81In re‑examination, the plaintiff confirmed that when he recently played football with Oscar, he was noticing his thumb was getting worse now: The pain was like “nine out of ten”. Even trying to just “fan” the ball, not mark it, gives the plaintiff excruciating pain in his thumb.[34] Compared to any finger pain, pain in his thumb is “very sore, like, it’s very sore, like, tingly and – yeah, like, when the football hits the thumb it’s, like, really sore. The finger is sore.”[35]
[34]T39
[35]T40
82Current left index finger pain is “not as worse as before”, but he has noticed that his thumb is getting much worse now. He does not have much pain in his left index finger now. The finger is fused. It only gets really sore when he marks the football and the football hits the finger and thumb at the same time.[36]
[36]T40
83Mowing the lawn, the plaintiff feels pain on the thumb mainly. When using a hammer and nail, the pain is on the bow of the thumb and the index finger. He drops things because, now that both his finger and thumb are injured, one is “as worse as the other”.[37]
[37]T41
84It is pain normally in his thumb that makes the plaintiff avoid housework. That pain generally wakes him at night, probably three or four times a week, because he sleeps on his thumb; he lies on it. It is very hard to get back to sleep straight away, and sometimes he cannot go back to sleep, and he is awake until he has to get up at 5.00am and go to work. He therefore gets really, really tired at work, three to four times a week.[38]
[38]T41
85The plaintiff has to do small tasks like do up buttons even though the pain is there, and every time he does something, he is reminded of this injury, even with a little thing like doing up his shoelace. Doing up buttons, he feels pain in his thumb. Manhandling patients at work, he feels pain in his thumb.[39] By the time he has decided to take Panadol, his pain is 8 out of 10.[40]
[39]T42
[40]T43
86The plaintiff is worried because he feels like his thumb is getting worse. He is worried about his job, because he is still on probation, and he is crossing his fingers they do not see any weakness in him, because the job requires him to hold people back so many times a day.[41]
[41]T44
87The thumb problems generally are worse now, and he has noticed it is getting worse. He is extremely worried about his work, considering he is fifty-seven, and it is going to be hard for him to get another job if he loses this one.[42]
[42]T45
Current pain and treatment
88The plaintiff’s left hand and thumb pain is significantly different to what he experienced after his earlier left upper limb injuries, following which he was able to return to full work duties. While he had some pain in his left hand and index finger, the pain as a result of this incident in his left thumb and left hand is excruciating in comparison.
89The plaintiff has continued to attend Dr Wong, general practitioner, at Moonee Ponds as required. The doctor has told him there is nothing more that can be done and that he will need to live with persistent pain.
90The plaintiff is not having any further hand therapy because he had previously been shown exercises and used a ball to strengthen the grip of his left hand and thumb.
91The plaintiff currently takes Panadol, two tablets before bed, three to four nights a week. He has recently started using Phenergan to help him sleep. He takes the Panadol at night before bed because of the pain he has in his left hand and thumb most nights.
Lay evidence
92The plaintiff’s wife, Sonia, swore an affidavit in December 2020. She has known the plaintiff since about 1992. They married in 1997.
93She confirmed, pre-incident, the plaintiff was exceptionally involved in his children’s activities. Since the incident, he has been restricted in a number of ways. He has decided to change jobs because he was coming home from work in pain quite frequently while working as a forklift driver, and has taken a job where she works.
94Mrs Sasalu confirmed the various matters deposed to by the plaintiff in his affidavit as to his difficulties and restrictions because of his left thumb injury.
95Mrs Sasalu made no mention of the plaintiff’s earlier left finger or wrist problems in her affidavit.
96She swore an affidavit in 2009 in support of the plaintiff’s left finger application. In that affidavit, she described many of the difficulties she now attributes to the thumb injury.
The Plaintiff’s medical evidence – Treaters
97The ambulance report of the said date set out:
“AT APPROX 1750 HOURS TODAY, PT USING A TIPPING (VERTICAL BAND) SAW TO CUT THROUGH LAMB PIECES AT MEATWORKS. PT WORKING AT FAST PACE WHEN REALISED HE HAD CUT THROUGH THE TOP OF HIS L) THUMB. PT SELF PRESENTED TO FIRST AID ROOM, WOUND WASHED AND DRESSED BY FIRST AIDER, PT HAD CHANGED CLOTHING AND GATHERED BELONGINGS PRIOR TO AV ARRIVAL.”
98The plaintiff was admitted to St Vincent’s Hospital on the plastics team on the said date following laceration to the thumb. On the following day, the wound was debrided and washed out and a screw was affixed to the bone.
99Investigations at that time purported to show an intraarticular fracture through the distal phalanx of the left thumb, with subsequent dislocation at the IP joint of the left thumb.
100The plaintiff was discharged following the surgery on 22 February 2013.
101A past history was noted of left wrist fracture and trauma – left hand caught in mincer 1993 and left index finger caught in machine 2002.
Medico-legal evidence
102Mr John Buntine, hand, plastic and reconstructive surgeon, examined the plaintiff on behalf of the defendant on 2 April 2019.
103The plaintiff then reported continuous discomfort in his left thumb and pain when the extremity of the thumb was pressed on. Because of that, he could not feel much with the extremity of the thumb, and said he usually avoided using it beyond the region of its interphalangeal joint, but he used the more proximal part of the thumb. He reported pinch grip between his left thumb and index finger was especially poor because of the pre-existing abnormality of his index finger.
104The plaintiff told Mr Buntine he warmed his left thumb in hot water after getting up every morning and also before going to bed, but took nothing because of the pain in his thumb.
105The plaintiff reported the appearance of his left thumb was quite acceptable, unlike his index and middle fingers from the previous injury.
106The plaintiff told Mr Buntine that working on a forklift in a chiller, his thumb got very cold and painful. He operated that vehicle using his left middle ring and little fingers. He wore gloves to protect his left thumb, but had to take them off after about an hour in the cold environment to warm up his thumb using water.
107The plaintiff reported difficulty playing sport with his son and daughter, who both played at a high level. He also had difficulty undertaking tasks requiring good control of both hands, such as doing up and undoing buttons.
108On testing of the two-point discrimination distal to the distal interphalangeal joint, there was total loss of sensation from the radial side of the terminal pulp of the thumb and partial loss of sensation of the ulnar side of the terminal pulp. There was also significant tenderness of the u-shaped scar and the whole of the terminal pulp of the thumb. The proximal interphalangeal joint of the left index finger was fused and sensation was poor distal to that joint.
109Mr Buntine noted no indication could be seen of the fine scar affecting the part of the thumb’s pulp. There was evidence of appreciably greater use of the terminal pulp of the right thumb than of that of the left thumb.
110Mr Buntine diagnosed scarring of the terminal pulp of the left thumb with tenderness and sensory loss because of which this part of the thumb is not used much. There was also some restriction of thumb movement.
111No change was expected in the condition of the thumb at that stage.
112By letter dated 18 April 2019, CGU advised the plaintiff that liability had been accepted in relation to his impairment benefits claim for his left thumb, following examination by Mr Buntine.
113Mr Murray Stapleton, plastic and hand surgeon, examined the plaintiff at the request of his solicitors via videolink on 4 June 2020.
114The plaintiff advised that he could hardly see the scar on the tip of his thumb.
115Mr Stapleton noted the difficulty the plaintiff had was a reduction in normal sensation of the thumb tip, starting at the interphalangeal joint to the tip. It was a partial transverse sensory loss on the basis that the skin is “protective”, such that the plaintiff can determine the difference between sharp and blunt, hot and cold, rough and smooth, but it is not normal, and that is the reason that manipulation of small objects is difficult for him.
116One of the plaintiff’s concerns about the tenderness of his left thumb which remains is that he could not mark a football, which was a problem, as his son constantly asked him to play football with him.
117The plaintiff had a slight reduction in flexion of the interphalangeal joint. At work, if he had to walk into a freezer in his role as a forklift driver, the very cold atmosphere caused his pain to be very much increased.
118Mr Stapleton noted on examination, the scar that ran around the thumb across the base of the tip back to the interphalangeal joint had settled almost completely. The only abnormality he could observe was that the plaintiff’s interphalangeal joint flexed from 0 to 40 degrees, whereas normal flexion was to 80 degrees. That added to the problem the plaintiff had with the slightly decreased level of grip.
119The diagnosed injury was a bandsaw deep laceration across the distal half of the plaintiff’s left thumb.
120Mr Stapleton noted, as far as restrictions were concerned, it was not surprising the plaintiff had no desire to go back to work using a bandsaw and it would be unsafe for him to do so. Currently, he is working without reduced hours, doing duties other than what was required, so far as fine manipulative movement was concerned. Restrictions required of him and his difficulties with his left thumb were now a permanent problem and the plaintiff’s condition had stabilised.
The Defendant’s evidence
Lay evidence
121Ms Pauline Rhodes, the defendant’s human resources manager, swore an affidavit on 18 January 2021. She knew the plaintiff, who was originally employed by the employer as a meat worker before being transferred to the role of a forklift driver.
122The employer received a letter from the plaintiff on 7 July 2020, notifying of his decision to resign from the position of high reach driver with the employer.
123The plaintiff informed Ms Rhodes he was leaving because he had secured a better job at a hospital. He did not tell her which hospital he would be working at, or the nature of his new job.
124At no stage did the plaintiff tell her he was resigning due to health reasons or due to the conditions of his employment causing him difficulties with his left thumb or hand.
125The plaintiff’s employment was formally terminated by letter on 30 July 2020 and an employee exit list completed by him.
126In his resignation letter, the plaintiff wrote:
“Please accept this letter as four weeks’ notice of my resignation from my position as a high reach driver at JBS Australia. My employment will end on 03/08/20, as I have been offered a new position.
I would like to take this opportunity to say thank you for giving me the opportunity work with JBS. I have been very fortunate to work with very good people.”[43]
[43]Defendant’s Court Book (“DCB”) 7
127Murray McKenzie, despatch supervisor of the employer’s cold store since 2013, swore an affidavit on 18 June 2020.
128Mr McKenzie first met the plaintiff in about 2013, when he began work as a forklift driver in the cold store room and was his supervisor from about 2015.
129Mr McKenzie was not aware why the plaintiff stopped working in the boning area and began to work as a forklift driver. He was not aware the plaintiff had suffered injury to his thumb until he was told he had lodged a serious injury application.
130Mr McKenzie described the activities required of a forklift driver. The plaintiff did not make him aware that he experienced any issues controlling the forklift.
131The plaintiff primarily worked in the freezer section of the cold store room, which registered temperatures about -30 degrees Celsius. Employees in that area were generally given a five to ten-minute break each hour they worked, given the extreme temperatures they were working in.
132In about 2017 or 2018, it was noted by some of the plaintiff’s colleagues that he was taking extended breaks of around half-an-hour. Following these concerns, Mr McKenzie approached the plaintiff about this issue and was informed the plaintiff found it difficult to work in the freezer room as his feet would get very cold, at times making it difficult for him to walk once leaving the forklift. As far as he was aware, that was the first time the plaintiff had made these complaints to anyone in management.
133Following this conversation, it was decided by management the plaintiff was permitted to take longer breaks in order to deal with the pain in his feet, given he might find it more difficult to cope with the conditions than younger workers.
134However, in about early 2019, management decided it was not suitable for the plaintiff to continue working in the freezer room given his need for these extended breaks, and following that decision, he was transferred to the chill section of the cold room, which registered temperatures of around 0 degrees Celsius. On that move, the plaintiff no longer required extended breaks.
135Mr McKenzie was not aware of the plaintiff making any further complaints of discomfort or pain in his feet, or any other part of his body, because of the temperature of the work environment.
136Throughout his supervision of the plaintiff, Mr McKenzie was also aware the plaintiff had made complaints about pain in his wrists and was reluctant to conduct any manual labour due to wrist pain. As such, he did not request the plaintiff undertake any heavy lifting.
137Mr McKenzie did not recall the plaintiff telling him he was suffering from any pain in his left thumb or of any physical issues or pain he experienced while working.
138He was aware that while working in 2020, the plaintiff resigned from his position with the employer after he obtained a better work opportunity. He had not seen or spoken to the plaintiff since he resigned.
139There was a Supervisor’s/Foreperson’s report of September 2014, where it was noted the plaintiff failed to comply with workplace policy, “putting plastic bags for feet in microwave”.
140The defendant tendered the plaintiff’s affidavits, and his wife’s affidavit, in support of a serious injury application in relation to the left index finger injury which occurred on 25 January 2002.
141The defendant also tendered the transcript of the hearing before Her Honour Judge Millane on 4 May 2009, and her judgment[44] granting the plaintiff a serious injury certificate in relation to the left index finger injury.
[44]Sasalu v Coburg Services Pty Ltd & WorkSafe Victoria (unreported) VCC
142Further, the defendant relied upon a report from the plaintiff’s treating hand therapist, Ms Megan Fitzgerald, dated 31 October 2008.
Overview
143There is no dispute that in the incident, the distal half of the plaintiff’s left thumb was split in the radioulnar plane by a bandsaw. This injury was surgically repaired at St Vincent’s Hospital on 22 February 2013 and hand therapy followed.[45]
[45]Hands-on physiotherapy treatment noted by Mr Buntine
144The issue in this case is one of range, with the defendant submitting a previous left index finger injury was responsible for most of the claimed consequences, and that it could not be established any aggravation of the left hand as a result of the incident was “serious”.[46]
[46]T54
145While counsel for the plaintiff conceded a number of consequences were present as the result of the left finger injury and these were readily accepted by the plaintiff, there were further pain and other consequences relating to the left thumb which of themselves are “serious”.[47]
[47]T54
146Thus, in relation to the left hand, the principles in Petkovski v Galletti[48] apply as there is an aggravation, but there is also a new injury and impairment in relation to the left thumb itself.[49]
[48]Supra
[49]T54
147In this case, where there is a pre-existing left hand condition, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether any additional impairment resulting from this incident is serious and permanent.
148In Petkovski v Galletti,[50] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[50]Ibid; followed in AG Staff Pty Ltd v Filipowicz (supra)
Credit
149As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[51]
“… 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.”
[51](2010) 31 VR 1 at paragraph [12]
150No submissions were made by counsel for the defendant as to the plaintiff’s credit.
151Counsel for the plaintiff submitted the plaintiff was a highly credible witness who made concessions against interest on numerous occasions. His evidence is that his current injuries have severely affected his capacity to enjoy his life, and that his left hand before the incident was largely pain-free with only mild symptoms.[52]
[52]T60
152I accept the plaintiff was a truthful witness who at times had difficulty understanding questions because of language issues; however, he was prepared to make appropriate concessions as to the significant problems he had after the left index finger injury in 2002, and volunteered information at times that was against his interest.[53]
[53]T9 - warming up his hand after the finger injury
New consequences- thumb pain and restrictions
153As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[54] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).[55]
[54]Supra
[55](ibid) at paragraph [11]
154As a result of the incident injury, the plaintiff continues to experience pain, sensory loss, tenderness and restricted movement in his left thumb as he described in his affidavits, confirmed in his viva voce evidence and noted by the two medico-legal examiners.
155Counsel for the plaintiff submitted the constant pain of itself, seeming to worsen for the plaintiff over time, is in itself a serious consequence.[56] It was submitted this was a high level of pain for a stoic man who had done army service and had played rugby. The plaintiff was worried, now on probation, if he lost his job, whether he would find another one.[57]
[56]T54
[57]T56
156The plaintiff’s dexterity and movement of his thumb is restricted. The pinch grip between his thumb and left index finger is especially poor because of the pre-existing abnormality of the left index finger.
157He has been unable to continue with his new hobby of golf because of difficulties gripping the club with his thumb.
158Limited flexion of the interphalangeal joint adds to the problem the plaintiff has with a slightly decreased level of grip and difficulty with manipulation of small objects as Mr Stapleton described.
159There is a reduction in the normal sensation of the thumb tip and resultant tenderness if the thumb/scarring is knocked. One recent example was 8 out of 10 pain experienced by the plaintiff when attempting to play football with his nineteen-year-old elite footballer son.
160Mr Buntine confirmed ongoing tenderness and sensory loss of the terminal pulp of the left thumb.
161The plaintiff continues to require over-the-counter painkilling medication, Panadol as he is concerned stronger medication will affect his work capacity.
Work consequences – loss of vocation
162In my view, the plaintiff is somewhat of a stoic.[58] Having had two-and-a-half months off work after the very traumatic incident, he was unable to resume his duties a sawman but has continued in full-time alternate employment since that time, during which he has had ongoing problems with his left thumb, requiring Panadol nearly every night for pain.
[58]Dwyer v CalcoTimbers Pty Ltd (No 2) [2008] VSCA 260
163While counsel for the defendant accepted that maybe the plaintiff cannot work as a sawman, and that may be a considerable consequence, it was submitted it was not a “very considerable” one, when you are looking at the range of possible impairments.[59]
[59]T50
164There was no challenge to the plaintiff’s evidence in this regard.
165As a result of that injury alone, the plaintiff had to cease work as a sawman, changing from a job he enjoyed and had done for many years. Working as a forklift driver, he had ongoing problems with the cold environment – requiring frequent breaks from cool room work. He also had some problems with lifting duties. There are also issues in his current role at Thomas Embling if he is required to physically handle patients.
166I accept the plaintiff had job satisfaction and enjoyment from his long-term role in the meat industry as a sawman but that has been taken from him as a result of his thumb injury.[60] Despite his earlier finger injury, he had been able to work unrestricted in this role until the incident injury.[61] Thus, this area of work which he previously enjoyed has now been closed off to him.[62]
[60]Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35], Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [38]
[61]T56
[62]Haden (supra) at paragraph [15], Dwyer (supra) at paragraph [25]
167As Mr Stapleton commented – it is not surprising the plaintiff has no desire to go back to using a bandsaw and it would be unsafe for him to do so.
168These are matters that may be properly taken into account in assessing the plaintiff’s pain and suffering and loss of enjoyment of life.
169However, in addition to losing his vocation, working as a forklift driver for years thereafter, the plaintiff could not do certain aspects of the work handling pallets. Further, as he described to Mr Buntine, he operated the control of the forklift using his left middle, ring and little finger. Significantly, driving a forklift in the freezer, his thumb became very cold and painful.
170As the plaintiff said candidly, the need to warm his hands up before working dated back to his earlier left index finger and did not commence after this incident. However, the need to take breaks from work in the freezer followed the incident injury.
171While supervisor, Mr McKenzie, deposed the plaintiff’s complaints working in the cool room related to his feet,[63] there is no evidence of the plaintiff having any problems with his feet. I accept his explanation that keeping his feet warm helped his thumb pain while working in the cold.
[63]T51
172The plaintiff clearly had difficulty working for extended periods in the cool room, and required longer breaks than his co-workers. The plaintiff says he took breaks without permission – the defendant says he was given permission to take breaks, but he needed them because of his feet.
173The plaintiff told his manager “Aiden” of the difficulties with his thumb while working in the cool room. The defendant did not provide any affidavit evidence from that employee.
174I accept that one of the reasons the plaintiff left his job was his ongoing problem working in the cold – even in the “warmer” area he was moved to. He left the employer in difficult circumstances, having contracted COVID-19 during his notice period and self-quarantined, refusing to come onsite for testing as requested by HR. In those circumstances, having lost trust in the employer as he described, it is not surprising he was not forthcoming as to the reasons for leaving the employer’s employ.
175There are also issues with his thumb in his current role. The plaintiff has to be “hands-on” at Thomas Embling Hospital. He described a flare up of pain – 8 out of 10 – when he recently had to restrain a patient.
Aggravation of left-hand condition
176Counsel for the defendant relied on the 2008 report of hand therapist, Ms Megan Fitzgerald, detailing the plaintiff’s complaints at that time about his left index finger, in particular, the lack of strength and poor grip.[64]
[64]T48
177Further, counsel compared the matters set out in the plaintiff’s 2009 affidavit with his affidavit in support of the present application. Tying shoelaces, cutting vegetables, mowing the lawn, playing football with his son, having to put his hand in warm water, and issues with sleep, were all found in both affidavits.[65]
[65]T49
178The plaintiff’s wife’s affidavit was also criticised on the same basis, in that what she had deposed to pre-incident and post-incident was very similar.[66] Further, her second affidavit was inaccurate, in that she said before the incident injury the plaintiff was unrestricted in playing football with his son.[67] In both affidavits she talked about the plaintiff’s difficulty with housework, using tools such as a hammer and nails, and mowing. Further, while her evidence does not advance the plaintiff’s case, it was submitted it serves to demonstrate that these were problems from the earlier injury.[68]
[66]T51
[67]T52
[68]T53
179Counsel for the plaintiff submitted that the fused left finger injury is no longer such a problem as it was when the plaintiff was being cross-examined in the earlier case. The left index finger is not that bad, and is less painful now fused, and has not been so noticeable since the date the left thumb became so painful with this shocking injury as the plaintiff described.[69]
[69]T57
180The plaintiff continues to take Panadol for the thumb injury and is woken at night because of pain. That is not to say the left index finger is not still playing some part in his current sleep difficulties as he described.[70] It was submitted two different injuries can give rise to the same serious injury.[71]
[70]T58
[71]T60
181It was submitted the plaintiff has emphasised constant pain at work, having to take Panadol, and his sleep is disturbed, all by his thumb.[72] That does not mean he could not have had a serious injury with his finger earlier on. However, it was submitted since 2013 the dominant cause of the serious injury consequences has been the plaintiff’s thumb injury, constant often severe pain in the thumb, and his incapacity for his usual work.[73]
[72]T58
[73]T59
182Further, the plaintiff had deposed in this matter to experiencing mild pain on occasion as a result of his earlier injuries, although he had learned to cope with them over many years. He acknowledged they were serious injuries back then, but they are now mild and did not affect his ability to work.[74]
[74]T59
183It is clear that there are a number of activities that the plaintiff had difficulties with before the incident as a result of his left finger/wrist injury. He admits he has ongoing left index finger pain, but his left thumb pain is much worse, constant and increasing.
184The left thumb injury alone causes ongoing pain, high-level at times. There is also tenderness, a loss of sensation and restricted movement of the thumb.
185There is also an increase in the difficulties he already experienced as a result of the left finger injury in a range of activities. I accept his evidence that there has been a worsening in relation to problems with his grip, dropping things, increased sensitivity on his left hand – evidenced by strong pain when playing football, using a hammer and nails, mowing, housework and sleep. Now, it is mainly his thumb that troubles him when involved in these activities.
186There is no suggestion that the plaintiff’s left thumb condition will improve. Therefore, I am satisfied that the impairment in relation thereto is permanent.
187Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s left thumb/hand impairment are “serious”. When judged by comparison with other cases in the range of possible impairments, they may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
188Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
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