Sharma v Chandler Personnel Services
[2018] VCC 1658
•30 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-00959
| ARISHMA RESHMA SHARMA | Plaintiff |
| v | |
| CHANDLER PERSONNEL SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 & 27 September 2018 | |
DATE OF JUDGMENT: | 30 October 2018 | |
CASE MAY BE CITED AS: | Sharma v Chandler Personnel Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1658 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – s335 – traumatic injury to the left hand – reliance only upon paragraph (a) of the definition of serious injury – leave sought in relation to pain and suffering and economic loss consequences – plaintiff under the age of 26 years – plaintiff effectively a process worker who claimed the day before hearing that she intended to study to be a nurse – credibility of plaintiff – method of calculation as to whether statutory requirements satisfied in relation to loss of earning capacity – whether burden of proof in relation to pain and suffering discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr A Hill | Shine Lawyers |
| For the Defendant | Mr B McKenzie | Wisewould Mahony |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013, hereinafter referred to as “the Act”. In bringing her application, the plaintiff seeks leave to commence proceedings for damages in respect of both pain and suffering and loss of earning capacity. In so doing, the plaintiff relies solely upon paragraph (a) of the definition of serious injury. Initially, she had been seeking such leave pursuant to paragraphs (a), (b) and (c). It was indicated by her counsel at the outset that reliance upon (c) was abandoned and it was also conceded that the requirements of (b) were probably not met – see Transcript (hereinafter referred to as “T”) 5. In fact, during closing addresses it was confirmed that reliance upon paragraph (b) was abandoned – see T107. Thus, the plaintiff bases her application solely upon paragraph (a).
2 The plaintiff’s injury is one to the left hand. It occurred in a single incident when that hand was caught in a machine known as a breadcrumb machine on 6 April 2016. This shall hereinafter be referred to as “the accident”. The occurrence and nature of the accident and the fact that the plaintiff suffered a compensable injury to the left hand is not denied – see T7 and T74. The plaintiff is essentially right hand dominant, although she does use her left hand in relation to some tasks.
3 Another feature of this application is that, at the time of the accident, the plaintiff was under the age of 26 years and was in fact 21 years of age. Accordingly, the operation of s325(2)(e) is to be borne in mind. The requirements of s325(2)(f) do not operate. A loss of earning capacity of 40 per cent or more must be established, but the “3 years before and 3 years after” calculations and provisions are not applicable.
4 Another issue relied upon by the defendant relates to permanence of consequences. This shall be discussed consequently and is primarily based upon evidence of the plaintiff that a possible referral back to a treating hand surgeon might be organised. I would refer, for example, to T51.
5 Mr J Richards QC with Mr A Hill of counsel appeared on behalf of the plaintiff. Mr B McKenzie of counsel appeared on behalf to the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
Factual background
(a) The plaintiff’s background, training and employment
6 The plaintiff is aged 24 years, she having been born in 1994 in Fiji. She speaks both Hindi and English. She was educated in Fiji, where she obtained her School Leaving Certificate. Thereafter, she worked as a cashier in a supermarket for approximately one year and then in an office administration job in a factory for approximately six months. In 2015, she married an Australian citizen, who had worked and lived in Australia for several years. After becoming married, she stayed at home and was a housewife, before obtaining a spousal visa and moving to Australia on 1 March 2016. In April 2018, the plaintiff gave birth to a daughter. Whilst it is far from certain, she may in the future have another child. This will depend upon how matters eventuate – see, for example, T40.
7 The plaintiff’s husband worked for an entity called Bakers & Co as an accountant, he having apparently obtained this position through the defendant, which is a labour hire or employment agency. With some assistance from him, the plaintiff was taken on by the defendant, which placed her with the same company (Bakers & Co). She commenced there on 1 April 2016 as a process operator dealing with pizza bases. This was the type of work which she was performing when injured on 6 April 2016.
(b) The plaintiff as a witness
8 The plaintiff’s credit was attacked and was the subject of closing submissions. In my opinion, some areas of the attack on credit did not succeed, whilst, in one important area, a considerable question mark did arise as to either the plaintiff’s credit or as to the preparation of the matter (or possibly both). I shall return to this issue shortly.
9 Turning to other matters of credit, an attack was made on the basis of the plaintiff swearing in her affidavit of 29 October 2017 that Hindi was her first language and English her second language. She reiterated in cross-examination that she could read and write in English without difficulty and had received education in English. I accept that there is no language barrier or problem in relation to her employability. However, that does not mean that she is being misleading in swearing that English is her second language. Hindi may well have been her original language. This issue was raised again during closing addresses, but to my mind nothing damaging to the plaintiff’s credit arises in relation to it.
10 Another attack on the plaintiff’s credit related to her very brief performance of some clerical work with the defendant, as opposed to Bakers & Co, after the accident. There is no reference to this in her affidavits. Given that such employment was with the defendant and was brief, I do not regard this as a major failing in relation to credit. It is apparent from the affidavit of Ms Nadia Madhanayake, operations manager of the defendant at the relevant time, that the plaintiff’s brief period of working for it is well-known. In any event, I accept that the failure of the plaintiff to continue performing that clerical work was to do with people at the defendant’s place of employment, as opposed to the actual duties – see T25, 26, 60 and 61. This may raise issues as to capacity, but I do not see it as a credit concern.
11 Similarly, I am not greatly impressed by the argument that the gap in the plaintiff’s treatment in the second half of 2017 is a credit issue and I am not convinced that her resumption of treatment of the hand in November 2017 related to, or was prompted by, the commencement of her serious injury application.
12 Another credit issue concerns a photograph which was put in evidence by the defendant. It had been downloaded from the plaintiff’s Facebook page and shows her at the snow, not wearing gloves, and putting her exposed left hand into the snow. Her explanation is that this was the first time that she had ever seen snow and that, if she was wearing a glove, it would have become wet. Whilst a first impression might be that this is damaging to the credit of someone who is claiming to have an injured left hand which is sensitive to the cold, in the circumstances I accept her explanation that this was a quick photograph taken on an occasion when she saw snow for the first time. I would refer to her evidence at T64-5 and find it credible.
13 I am also not greatly impressed by the submission that there has been some damage to her credit because she is asserting that she would not be a reliable worker, but in July 2017 applied for a position in relation to data entry. It was also argued that one of her general practitioners, Dr Deepak Nayak, had not been certifying her as unfit for work, but as being fit for suitable duties, commencing at 25 hours per week. It was submitted that her asserting that she had not returned to work because she would not be reliable is an indication of exaggeration, given her skills and the suggestions of her treating doctors. Again, it was submitted that she was exaggerating the constant nature of her symptoms. Obviously the views of those treating her impact upon the issue of her employability, but, if she does not happen to agree with such views, I am not persuaded that this is a credit issue in the true sense. The frequency of flare-ups and the medication that she has been taking are issues which relate more to the seriousness of consequences than to credit.
14 The significant issue relating to the plaintiff’s credibility assumes such importance because it concerns her working intentions had the accident not occurred. It is to be remembered that, at the time of the accident, the plaintiff was under the age of 26 years. Accordingly, the restrictions imposed in relation to earning capacity over the three years prior to the accident and the three years subsequent to the accident do not apply. As a result, a more long-term approach to future employment intentions and prospects can be taken. For example, this can be of considerable importance if a person under the age of 26 years was injured whilst in the course of an apprenticeship and the income that might be earned as a fully qualified tradesman is no longer available. In other words, the approach to be taken is more in accordance with common law principles, although it is to be remembered that the basic condition of the requirement of a 40 per cent loss of earning capacity must also be satisfied. There are a number of decisions, some of which shall be referred to subsequently, that have a bearing upon this issue.
15 In general, the possible opportunities, intentions and future employment prospects of and for the injured worker become highly relevant. It is against this particular background that the plaintiff’s credit is again to be considered.
16 The plaintiff claims that it was always her intention to qualify as a nurse and, indeed, salary details concerning nursing positions were put before me. However, I say now that I am not satisfied as to the evidence of her intentions in this regard and am of the view that she has not discharged the burden of proof in relation to it.
17 I have come to that conclusion for the following reasons. In the plaintiff’s affidavit of 29 October 2017, there is no reference to any such intention to engage in nursing. The plaintiff swore that she doubted that she could ever be employed in a factory again, working near, or with, heavy machinery. There is no reference to nursing. Nursing first arises in her supplementary affidavit of 25 September 2018, the day before the hearing. An affidavit by her husband to the same effect is similarly dated. There had been no earlier affidavit from him. A letter from Flexi Personnel setting out the wages for nurses bears the same date. In other words, there had been no material obtained from, or on behalf of, the plaintiff in relation to the issue of nursing until the day before the hearing.
18 A report has been provided from Dr Deepak Nayak of Your Family Health Clinic, this being dated as recently as 13 September 2018. Dr Nayak refers to the fact that the plaintiff has not been able to do her usual work, as she has not been able to get modified duties suiting her capability. There is no reference to anything to do with nursing. Clinical notes from that practice were tendered by the defendant. There is reference in these to such things as light duties, the recent birth of the plaintiff’s daughter, dealings with the plaintiff’s previous employer and the like. There is no reference to nursing or the plaintiff’s intention to engage in same.
19 On 21 February 2018, Mr Ash Chehata, orthopaedic upper limb surgeon, examined the plaintiff at the request of her solicitors. He took a quite detailed history. It is quite apparent that Mr Chehata has recorded nothing in relation to nursing. A list of specific questions patently had been forwarded to him. None concern possible or intended work as a nurse.
20 Importantly, a quite lengthy and detailed report was provided to the solicitors for the plaintiff by Dr Robyn Horsley, occupational physician. This report is dated 18 July 2018, and, as one would expect from such a medical examiner, specific attention is directed to issues of employment and capacity. In this report, there is discussion of computer skills, familiarity with programs and the like. There is discussion of such matters as difficulties which the plaintiff has in relation to the manual handling of her recently born baby. The conclusion of Dr Horsley is that the plaintiff ultimately will return to work in an office-based role. Nowhere in this detailed report is there any reference to the plaintiff having any interest in, or desire to work in, nursing.
21 The defendant also organised for the plaintiff to be seen by an occupational physician, namely Dr Michael Baynes. Dr Baynes examined the plaintiff on 14 December 2017. To Dr Baynes, the plaintiff described her occupational history and also indicated that she was presently looking for work. Apparently she indicated to Dr Baynes that she had good English language skills and good computer skills. She also described the type of work in which she had been engaged. Again, there is no reference to any interest in nursing or any ambition to engage in or train for that profession. Thus, we have reports from two physicians specifically examining in relation to matters of occupation and one examining only a little over three months ago. Both are comprehensive reports. Neither contains any mention of the plaintiff having an interest in nursing.
22 Dr Neil Berry, senior consultant surgeon, saw the plaintiff at the request of the defendant on 23 January 2017. Whilst he did not concentrate on employment aspects to the same degree as might be expected from occupational physicians, there is no reference in his report to the plaintiff having any plan to engage in nursing. He does comment upon pre-injury and post-injury employment.
23 Mr Damian Ireland, hand surgeon, saw the plaintiff at the request of the defendant on 28 February 2018. A work history was taken. No reference to a desire or plan to work in nursing appears to have been made by the plaintiff.
24 Mr John Anstee, plastic and reconstructive surgeon, saw the plaintiff at the request of the defendant on 1 March 2018. He obtained various details of the plaintiff’s activities after the injury, including her complaint that she was finding it hard to get a job involving light duties. Again, there is no reference to any nursing ambition. He considered various employment possibilities. As stated, the plaintiff does not seem to have told him of any ambition or plan to become a nurse. In a brief subsequent report, he commented upon her capacity for suitable work, such as an administration support officer, retail sales assistant and the like. Understandably, his attention was not directed towards the plaintiff’s capacity to be a nurse.
25 On 24 April 2018, the plaintiff attended upon the Broadmeadows Office of Nabenet for the purposes of a Vocational Assessment Report. That report was subsequently provided. It would be fair to describe it as a comprehensive report. Whilst it deals with specific areas of employment, there seems to have been no suggestion by the plaintiff that she had any plan or ambition to engage in nursing.
26 In September 2017, the plaintiff appears to have applied for a position as an Administration Assistant with an entity called Apec Electrical and Communication Services. Apparently nothing further was heard about this application. In it, the plaintiff set out her various qualifications and work history. The application was clearly directed towards working in the area of handling sales orders, checking production and the like. In her curriculum vitae, the plaintiff set out her work history and skills. As to be expected, this CV emphasised her work history and experience in relation to the type of occupation involved.
27 No evidence was led that, prior to the date before the hearing and either via an agency or otherwise, the plaintiff has ever engaged in, undertaken any studies in relation to, or had any ambition in regard to nursing. There is no evidence that, since the accident, the plaintiff has made any application or specific enquiries in relation to working as a nurse. There is no evidence as to her commencing any studies in this regard or even as to her having made inquiries concerning what would be required. There is nothing before me as to her suitability for such employment or the likelihood of her being able to obtain the required results in examinations. Further, there is no evidence, medical or otherwise, as to whether the injury that she has suffered would impact upon or prevent a career in nursing.
28 Thus, until the day before this hearing, there would appear to have been not the slightest evidence put forward that the plaintiff had any interest in becoming a nurse. She had sworn a quite lengthy affidavit, made many visits to general practitioners, been examined by various specialists and two occupational physicians, and had been interviewed at Nabenet, all without giving the slightest mention of an ambition to study nursing. On the day before the hearing, she swore an affidavit that, when coming to Australia, it was her intention to get a job straight away and start saving so that she would have enough money to study and that she wanted to study in order to become a nurse. There is reference to the fact that other family members are nurses and that it is a career with which she is familiar.
29 On the day before the case commenced, there was also sworn an affidavit by the plaintiff’s husband to the effect that she had told him, prior to the injury, “she wanted to pursue her career as a nurse”. According to her husband’s affidavit, it was planned that she would get a job and save up enough money for her to start studying on a part-time basis. In addition, on the day before the hearing, it is apparent that the plaintiff, via her solicitors, had obtained earning details in relation to the base salary of a full-time Registered Nurse Grade 2.
30 Anyone could be forgiven for having the suspicion that all of this has the appearance of a last-minute attempt to establish a claim for economic loss. That is particularly so when it is borne in mind that, because of the provisions of the Act and the age of the plaintiff, an assessment of future economic loss arguably is to be approached more on a common law basis, with the more demanding mathematical calculations, which operate in relation to injured workers over the age of 26 years, not operating. The plaintiff’s original affidavit was sworn on 29 October 2017, 11 months ago. Since then, there have been the medical examinations to which I have referred. It seems staggering that this pre-injury plan to study in order to enter into a career in nursing apparently received no mention until the day before the hearing. According to the plaintiff’s oral evidence, her becoming a nurse was a clearly formulated plan. At T15, she swore as follows:
“Because my aim was to be a nurse, I wanted to be a nurse, so I wanted to stay in Australia and earn up some money and be at somewhere, a good place.”
31 Additionally, when cross-examined further, the plaintiff agreed that it was in her affidavit that she could have been expected to tell the Court about her nursing ambitions, but she had not. She agreed that she had told no doctor about it and did not tell Nabenet. She stated that it was her aim to first earn the money for her fees and then start from there – see T19. Further, in re-examination, the plaintiff specifically stated the following:
“I want – I always wanted to be a nurse.” (See T69)
32 At T72 she again stated that, if she did not have the problem with her hand, she would have stayed in Melbourne and “completed my studies to become a nurse”.
33 I have gone into this issue in some detail because it is important in relation to both the plaintiff’s credit and as to one of her arguments in support of her claim for leave in respect of economic loss. I am not satisfied that, prior to the accident, she had any genuine plan to study in order to become a nurse. In his closing address, Mr Richards submitted that I need to view the prospect of the plaintiff doing nursing as a matter of possibility, rather than probability – see T95 and T100. Given the timing and manner in which the issue of nursing was introduced, however the situation is viewed and whatever test is applied, I am far from satisfied that the prospect of the plaintiff becoming a nurse should be given any meaningful weight.
34 What seems to me to be the last-minute introduction of such an alleged plan is detrimental to the plaintiff’s credit. That does not mean that her case generally fails. The injury is admitted. It is not a case which, even in part, has its basis in matters psychiatric or psychological. It is a clear and nasty physical injury and one which I have inspected. However, the fact remains that, in my opinion, there has been some damage to the credit of the plaintiff.
(c) The state of the plaintiff’s health prior to the accident
35 There is no evidence that the plaintiff was suffering from any relevant prior injury, either to the left hand or generally.
(d) The injury, its diagnosis and prognosis
36 As stated, the injury was suffered on 6 April 2016, when the plaintiff’s left hand became caught in a machine which had blades and which suddenly commenced operating. The blades sliced into the palm of the plaintiff’s left hand from the wrist to the bottom of the little finger. The plaintiff was conveyed by ambulance to the Royal Melbourne Hospital, where, after a night in the Emergency Department, she was an inpatient for 10 days. She underwent reconstructive surgery performed by Mr Rory Meagher. This involved a transfer of a tendon from her ring finger to her left little finger. However, the radial digital nerve to the little finger was avulsed and could not be repaired. It would appear that the radial digital artery was repaired.
37 The first operation does not seem to have been particularly successful, as repeated surgery was performed and the plaintiff spent another 10 days in the Royal Melbourne Hospital. The second surgical procedure was carried out on 4 May 2016, but it was unsuccessful in regaining motion of the left little finger.
38 Later, the plaintiff was referred to Mr James Thomas, specialist hand surgeon, for a second opinion. He reported back to the Royal Melbourne Hospital on 3 July 2017. He found that there was no active flexion of the left little finger, but a full passive range of movement, this being painful. The other digits were flexing well. Mr Thomas thought that, in order to restore active flexion in the finger, it was likely that the plaintiff would require a staged tendon reconstruction. However, he considered that there were problems associated with this, given the earlier surgery. He also referred to the non-repairable injury to the radial digital nerve as being a reason for caution in relation to further surgery. On balance, he recommended no further surgical management and thought it likely that the plaintiff would benefit from ongoing pain management review.
39 Thereafter, the plaintiff saw Dr Shaheen Begum at the Your Family Health Clinic in Airport West. In more recent times, she has seen other general practitioners at that practice, but particularly Dr Deepak Nayak. The plaintiff has been prescribed medication, such as Panadeine Forte and Lyrica. In a report of 13 September 2018, Dr Nayak referred to the plaintiff as having residual numbness in the left fifth finger, along with stiffness, residual flexion deformity and chronic intermittent pain. It is apparent that the plaintiff is seeing Dr Nayak monthly. Dr Nayak expressed the view that the plaintiff could try to return to modified work as tolerated, but not involving much use of the left hand.
40 Dr Begum referred the plaintiff to Ms Melissa Whitten, Practitioner in Hand Therapy, at Melbourne Hand Rehab. Ms Whitten reported to Dr Begum on 22 November 2017. (It is apparent from her report that the plaintiff had also had hand therapy at the Royal Melbourne Hospital.) The plaintiff was suffering from numbness, reduced strength and pain in her hand and was unable to perform her normal home duties. She was assessed as having sensitivity of the palmar scar, reduced grip strength of the left hand and reduced active range of movement of the left little finger. Ms Whitten made an appropriate splint and provided a silicone product to place on the scar in an attempt to soften it and increase extension of the little finger. She also suggested exercises to increase grip strength and strengthen the little finger. There is no report from her subsequent to that of 22 November 2017.
41 In a brief report of 19 August 2018, Dr Shalendra Nath, general practitioner, expressed the view that the plaintiff had suffered a left fourth and fifth finger nerve and tendon injury, resulting in pain, weakness and loss of sensation in those fingers. He thought that she would need life-long pain management. He considered that medical science would not be able to restore the full functions of the left little finger to its pre-injury condition. A certificate of his of 24 September 2018 indicated that the plaintiff should not lift or carry weights with her left hand, but was fit for modified duties for 25 hours per week. The treatment plan was for hand physiotherapy and painkillers as required. Neither the report nor the certificate make it clear as to the number of times that Dr Nath saw the plaintiff, but her affidavit of 25 September 2018 refers to Dr Nath as being the plaintiff’s “new GP” and to her having seen him over approximately the last three to four months.
42 The plaintiff’s earlier general practitioner, Dr Nayak, reported to the plaintiff’s solicitors on 13 September 2018. He recounted the history of the accident and referred to the fact that the plaintiff had been unable to do her usual work. As yet, she had not been able to get modified duties which suited her work capability. When last seen on 25 July 2018, the plaintiff informed Dr Nayak that she felt that she could trial modified work for 25 hours per week, provided that this did not involve the lifting and carrying of weights in her left hand or much use of it. Analgesics in the form of Panadeine Forte and Lyrica had been advised. The plaintiff had also been told to continue mobilisation of the hand and hand therapy. She could refer back to a plastic surgeon for further management. It was felt that a surgeon or plastic surgeon would be the best person to comment on the future course, whilst Dr Nayak or another general practitioner could still monitor the condition on a monthly basis and assist with her symptoms.
43 The plaintiff has also been examined for medico-legal purposes. At the request of her solicitors, she was examined by Mr Ash Chehata, to whom reference has been made earlier. The examination by Mr Chehata was on 6 February 2018. Mr Chehata noted that the plaintiff was currently 32 weeks pregnant. The plaintiff was complaining of ongoing pain on the ulnar side of the wrist, with no active range of movement of the little finger on the right side and ongoing numbness on the palm of the little finger. She was intermittently taking Panadol. She was complaining of swelling and a painful and weak palm, with an inability to perform a composite fist and with a significant loss of grip strength. Mr Chehata found widespread numbness across the entire little finger and that her active range of movement of the finger was zero. He also noted the large longitudinal palmar scar in a Y-shape, with obvious pain on passive motion and diminished feeling.
44 Mr Chehata diagnosed left digitorum profundus avulsion of the little finger, with radial digital nerve avulsion. The surgery which the plaintiff had undergone had not been successful. Mr Chehata thought her unable to perform pre-injury employment, due to the lack of strength in the hand and an inability to make a composite fist. She could perform light duties or office-based work with adequate rest breaks. The injury had impacted upon her domestic activity, as she is unable to perform most of the home maintenance duties. The condition is likely to be of a permanent nature, unless she underwent further reconstructive surgery, although the outcome of that is described by Mr Chehata as being certainly not guaranteed. The general prognosis is of a permanent loss of motion and permanent loss of sensation in the radial digital nerve.
45 Dr Robyn Horsley, occupational physician, examined the plaintiff at the request of her solicitors on 18 July 2018. Dr Horsley noted that the plaintiff’s current medication was up to two tablets of Panadol three times per day, with a similar dosage for Voltaren. The reason that the plaintiff gave for her failure to continue with the alternate duties provided at the defendant’s establishment was that she found the environment to be “intimidating”. Dr Horsley commented that the plaintiff has good computer skills, although now she essentially uses only her right hand on a computer. She does not like to force the left hand, because she is fearful of pain. There has been no psychologist or psychiatrist involved in her treatment. She found it difficult holding her baby and was fearful of dropping her. The diagnosis of Dr Horsley was of a significant injury to the left, non-dominant hand, being a complex injury to the fifth finger.
46 Dr Horsley thought that the plaintiff may be moderately depressed. She considered the plaintiff to be permanently unfit for her previous role as a process worker. She would be best suited to an office-based environment. The plaintiff should ensure that her computer-based skills are up to date, although retraining would have to be postponed, because of the arrival of her young baby. Dr Horsley also thought that there may be some benefit to the plaintiff from referral to a pain management program, where she could gain access to an occupational therapist. Dr Horsley also mentioned the possibility of referral to a psychologist.
47 The conclusion of Dr Horsley was that the plaintiff was currently being certified for 25 hours per week of office-based work and that this was appropriate. In the opinion of Dr Horsley, ultimately the plaintiff will return to work in an office-based role. Further surgical management was not indicated.
48 The defendant has also had the plaintiff examined. Dr Michael Baynes, occupational physician, originally saw her on 14 December 2017. In relation to the cessation of light duties with the defendant, the reason given by the plaintiff was that she did not like the work. She informed Dr Baynes that, as at the date of the examination, she was looking for office-type duties. In relation to her housework, she advised of an inability to lift heavy pots or pans. She also advised that she was unable to play tennis, an activity which she used to enjoy. Apparently, whilst she writes with her right hand, she is left-handed at tennis. Indeed, Dr Baynes took a history of the plaintiff being ambidextrous.
49 The diagnosis of Dr Baynes was that the plaintiff had suffered a laceration injury to the ulnar side of the palm of the left hand, sustaining avulsion of the tendon flexors of the little finger and ring finger. There was also injury to the digital nerves of those fingers and damage to the ulnar artery, requiring a surgical repair. However, this had been of limited benefit. He considered the plaintiff to have restrictions in terms of use of the left hand. There should be no forceful or repetitive gripping, exposure to vibration or extremes of temperature. The plaintiff should not work with machinery, but, in the opinion of Dr Baynes, was fit for full-time work, particularly if there was rotation of tasks. He considered the plaintiff to be fit to undertake office or retail roles where there was limited manual handling or to perform light machine operator work. The plaintiff would also be fit to work as a retail sales assistant, with some restrictions, or to work in an office environment. Dr Baynes considered that the plaintiff would be fit to work in a factory environment as a light machine operator, with restrictions.
50 Dr Baynes reported again on 11 July 2018, this being for the purposes of commentary upon a Recovre report of 24 January 2018. There is no indication that he saw the plaintiff again. He considered that two described positions of working in an order packer role represented work that was within the plaintiff’s physical capabilities. He had a similar observation concerning work as a warehouse transport clerk and as a pharmacy sales assistant.
51 Dr Neil Berry, senior consultant surgeon, saw the plaintiff at the request of the defendant on 23 January 2017. One observation of interest recorded by Dr Berry is that the plaintiff told him that the place where she had been working (presumably Bakers & Co) was due to cease functioning on 10 February 2017 due to continuing losses, and accordingly there had been no ability to increase her work hours. That is an apparent reference to her performing light duties for some 12 hours per week.
52 The diagnosis of Dr Berry was what might be expected, namely a lacerating injury to the left hand, which had damaged the ulnar artery and the flexor tendons of the little finger and ring finger and also the digital nerves of those fingers. He believed that the plaintiff would never return to her pre-injury duties, because of the limited use of the left hand. He believed that she was currently capable of performing the work which she had been allotted for 18 hours per week, but suggested a review after a further six months. This report is the earliest medico-legal assessment that was obtained.
53 Mr Damian Ireland, hand surgeon, saw the plaintiff at the request of the defendant on 28 February 2018, reporting on the same day. Mr Ireland took an appropriate history. He recorded that the plaintiff was attending to all her normal activities of daily living and household chores and could drive an automatic motor car without apparent difficulty. His physical examination included that, on the ring finger, there was no function of the sublimis tendon, it having been transferred to the little finger, but that there was full active profundus function of that finger overall. He thought that there had been excellent recovery of the little finger following microsurgical repair.
54 The diagnosis of Mr Ireland was of soft tissue injury to the left hand, including the flexor tendon of the little finger and neurovascular injury to the little finger and palm. The result was limited function of the left little finger, due to the loss of interphalangeal joint flexion function and diminished sensation of the radial digital nerve. The scar did not interfere with the normal activities of daily living. He considered the prognosis for any further improvement of left hand function to be poor, unless there was further surgery. Mr Ireland considered that further surgery in the form of two stage flexor tendon grafting was a worthwhile consideration. This was based on the fact that the plaintiff had near normal sensation in the little finger, but no effective function of the finger beyond the metacarpophalangeal joint.
55 Mr John Anstee, plastic and reconstructive surgeon, saw the plaintiff at the request of the defendant on 1 March 2018 and reported on that day. In relation to her recent employment, Mr Anstee recorded the plaintiff as saying that she had ceased work, referring to the fact that she did not like the anxiety associated with her last position. She was finding it hard to get a light duties job. Mr Anstee found the plaintiff to be a cooperative person, who did not seem to be exaggerating her problems. She had a reduced range of movement in the left ring finger, and particularly the left little finger. He found movement of the left wrist to be slightly reduced. He referred to the injury as being of the crushing and cutting type to the left palm, left ring and left little fingers. He also referred to neurological and tendon damage to the left little finger. Mr Anstee described that finger as being “severely impaired”. He did not feel that the plaintiff was unfit for work and thought that she would be able to return to work in modified pre-injury duties and performing the same hours.
56 Mr Anstee discussed a range of employment options, believing that work as an administrative assistant, receptionist, data entry officer, customer service representative and sale assistant would all be within the plaintiff’s physical capabilities. He also thought that, over a period of one month, the plaintiff could return to her pre-injury hours. She might permanently have a slightly slower rate of data entry. Mr Anstee anticipated that there would be no need for restrictions in relation to such things as hours worked, bending and lifting, pulling and pushing and the like. He thought that the plaintiff could return immediately to modified pre-injury duties or alternative duties.
57 On 24 May 2018, Mr Anstee provided a brief letter to the defendant. Essentially, he was commenting upon recommendations made in a vocational assessment report. He had not seen the plaintiff again. He expressed the opinion that work as a data entry operator might be a bit much for her, because of her left little finger problems. However, he expressed the belief that she could work as an administration support officer, receptionist, customer service representative or retail sales assistant. He was of the view that she could work full-time in those positions and could commence immediately. Given the timing of events, I would imagine that the report in question was the Nabenet Vocational Assessment Report of 2 May 2018.
58 The diagnosis is comparatively clear. The plaintiff suffered an injury to the left hand, namely a laceration from the wrist to the bottom of the little finger. As a result, surgery involving a transfer of a tendon from her ring finger to her left little finger was carried out, but the radial digital nerve to the little finger was damaged beyond repair. The surgery which was performed has not been successful. She has been left with a left little finger which has been described by Mr Anstee, examining on behalf of the defendant, as being severely impaired. It would seem that there have been some residual symptoms in the left ring finger. She also suffers from symptoms across the palm of the left hand. Along with counsel, I inspected the plaintiff’s left hand. The left little finger clearly is bent or hooked over almost to the palm and has all the appearance of being useless. There is obvious scarring across the palm of the plaintiff’s left hand, extending to the wrist. I accept that this was a nasty injury which has left the plaintiff with problems associated with gripping, restricted movement, restricted strength, numbness and the like.
59 I also accept that the consequences of the plaintiff’s injury are permanent within the meaning of the Act in that they will persist for the foreseeable future. Mr Chehata has stated that the general prognosis is for permanent loss of motion and loss of sensation in the radial digital nerve, and that the preclusions and restrictions from which the plaintiff suffers are likely to be permanent. He referred to the possibility of further staged reconstructive surgery, but also described this as being “certainly not guaranteed”.
60 Mr Ireland, examining on behalf of the defendant, has stated that the prognosis for any further improvement in left hand function without any surgical treatment is poor (there is no indication that the plaintiff will be undergoing any further surgical treatment). Dr Nath, general practitioner, has stated that the left hand will never be as it was before the work-related injury. Dr Nath also expressed the view that no surgery will be able to return the plaintiff’s hand to its pre-injury condition. Mr James Thomas, hand surgeon, who saw the plaintiff for the purposes of a second opinion, described the plaintiff as having been left with significant pain and reduced range of movement. He specifically recommended against further surgical management, at least for the present.
61 In relation to permanency, Mr McKenzie submitted that I should not be satisfied in this regard. He referred to an extract from the clinical notes of Dr Nayak, such entry being dated 25 July 2018. Those notes are Exhibit 2. The entry in question refers to a discussion about medications, referral to a plastic surgeon and to a psychologist. The plaintiff’s evidence was that she had no appointment with the doctor who performed the surgery, but she had wanted to see him because the scar tissue “… has been hard, and it’s annoying me”. In answer to a question as to whether she would have further surgery on the hand if this was suggested, effectively she stated that she did not believe that the surgeon could do anything and that it could get worse. The surgeon to whom she was referring is Mr Meagher.
62 Whilst the plaintiff agreed in cross-examination that she would follow advice given by her plastic surgeon, the clear impression which I gained was that she would not be having any further surgery of any major proportion and that the only reason that she wished to see the plastic surgeon again related to the fact that the scar tissue had become hard and was annoying her. As stated, the plastic surgeon who provided the second opinion in this matter, namely Mr Thomas, recommended no further surgical management as at 3 July 2017. Further, in re-examination, the plaintiff said that Mr Thomas had effectively advised against further surgery and that Mr Chehata had said that further surgery would make her hand worse. On balance, I am not persuaded that the plaintiff intends to have any further surgery or that the argument in relation to lack of permanence has been made out.
63 As earlier stated, there is no evidence that the plaintiff was suffering from any relevant prior injury. It would not appear that the injury suffered is in the nature of an aggravation.
64 Pursuant to s325(2)(h), psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition. I note that Dr Horsley has indicated that there has been no psychologist or psychiatrist involved in the treatment of the plaintiff. Nevertheless, Dr Horsley believed that there was some moderate depression existing. She thought that treatment from a psychologist might assist. In essence, other medical examiners have not commented upon this. It is quite understandable that the plaintiff would suffer from some depression or the like in relation to the condition of her hand, but, apart from the observations of Dr Horsley, there is no reference of any substance to any psychological or psychiatric condition. Any such condition that does exist shall not be taken into account, but neither the available medical material nor the behaviour of the plaintiff in the witness box leads me to the conclusion that any such condition of any magnitude exists.
Other developments since the injury
65 The plaintiff has not returned to work. As stated, she gave birth to a daughter in April of this year. In January of this year, her husband was appointed to a position as a financial controller in Lae, Papua New Guinea. He returns to Australia from time to time. The plaintiff’s parents have come from Fiji to look after her and she has been back to Fiji with them. Currently, her husband has returned from Papua New Guinea. The plaintiff is awaiting an entry on her passport which will enable her and the baby to go to Papua New Guinea. She claims that, had she not been injured, she would have stayed in Australia with the baby. She had intended to have two children, but seems to be now uncertain in this regard.
Ruling
(a) Pain and suffering
66 I find that the plaintiff has discharged the burden of proof in relation to pain and suffering. I have come to this conclusion for the following reasons, which are not listed in order of importance or significance.
(a) As stated, I inspected the plaintiff’s hand. The injury is a nasty one. Her left little finger curves in towards the palm of the hand, and the tip of the finger almost touches it. I readily accept that the finger is, for all intents and purposes, useless. In addition, there is a lengthy, crooked scar over the palm of the hand and extending to the wrist. I appreciate that there is no reliance upon paragraph (b) of the definition. However, I also accept that, apart from the permanent reduction in the range and motion of the little finger, it is painful and hypersensitive. I would refer, for example, to the reports of Dr Nayak, Mr Chehata, Dr Horsley and Mr Anstee, amongst others. I also note that to Mr Anstee, examining on behalf of the defendant, the plaintiff complained of pain in the left hand, particularly the palm, ring and little fingers. She referred to the hand as being painful for most of the time. Mr Anstee expressed the view that the plaintiff did not seem to be exaggerating her problems. He regarded her as having a severely impaired left little finger.
(b) I am also satisfied that the plaintiff suffers from such pain in her hand for most of the time, as she outlined to Mr Anstee. The experience of ongoing pain for lengthy periods is a factor of considerable significance in applications of this nature. For example, I would refer to the observations of Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 and to subsequent decisions of the Court of Appeal. I also note that, in the plaintiff’s affidavit of 29 October 2017, she refers to the pain as being “really bad” in winter, when her hand hurts terribly and “becomes really stiff, swollen and numb”. In her most recent affidavit of 25 September 2018, she has sworn that she suffers from pain in her hand nearly all the time. Further, approximately once a week it reaches a level of severity which requires her to rest and take Panadol and Voltaren, although she has tried to limit the amount of medication which she takes whilst she is breastfeeding her baby.
(c) The plaintiff now has problems relating to the performance of her housework. She has sworn that, without the use of her left hand, she cannot pick up things such as pots of food or carry bags of shopping. She can drive, but has problems gripping the steering wheel. Effectively, she has been forced to obtain the assistance of her parents and in-laws in relation to some domestic tasks. She finds it very difficult to hold her baby and is fearful of dropping her. In short, the condition of her left hand is such that it is both painful and interferes with her daily life.
(d) The age of the plaintiff is to be remembered. She is only 24 years. There is nothing to suggest that she has anything other than a normal life expectancy. Accordingly, she is likely to have to endure the pain and restrictions resulting from the injury for many decades to come.
(e) The injury to the plaintiff’s hand and the resultant pain interferes with her ability to look after her recently born baby. She has concerns that she is going to drop the baby and prefers to have someone else lift her, if this is possible. It is easy to imagine that there will be further difficulties, inconvenience and episodes of pain specifically relating to child management, as her daughter grows. Further, she now seems to be having some reservations as to whether or not she will have a second child, although this was the plaintiff’s original intention. In addition, the plaintiff has become partially dependent upon assistance from others, such as her parents and in-laws.
(f) In summary, the consequences of the injury to the plaintiff’s left hand are present on a daily basis. She has frequent pain, such pain being at times intense. She has limitation in relation to the performance of some everyday tasks. She cannot use her left hand freely and avoids activities on the left side – see, for example, the report of Dr Horsley. In short, she suffers frequent pain and daily interference with the normal activities of life.
(b) Loss of earning capacity
67 I am of the opinion that the plaintiff has not discharged the burden of proof in relation to loss of earning capacity.
68 As I have already indicated, I do not accept her evidence concerning her plans or intentions in relation to becoming a nurse. In addition, as earlier stated, the demonstration of a financial loss of 40 per cent or more is still required, even if the limitations contained in s325(2)(f) are not applicable, the plaintiff being under the age of 26 years at the date of the injury.
69 In closing addresses, Mr Richards, on behalf of the plaintiff, drew to my attention the decision of the New South Wales Court of Appeal in State of New South Wales v Moss [2000] NSWCA 133, and in particular to the judgment of his Honour Judge Dyer in Ammerlaan v DC Roof Tiling Pty Ltd and Anor [2015] VCC 1421. In that judgment, there is reference to two other decisions of this court, namely Jarvis v Woolworths Ltd [2012] VCC 1329 (his Honour Judge Brookes) and Capper v Munday Sales Pty Ltd and Anor [2013] VCC 1015 (her Honour Judge Millane). By way of a reply, Mr McKenzie referred me to the decision of this court in Spiteri v Victorian WorkCover Authority [2016] VCC 912 (his Honour Judge Misso). Certainly, I would agree with the following general proposition stated by his Honour Judge Misso in Spiteri:
“At the time when the plaintiff was injured, he was under twenty-six years of age, and in fact was twenty-two years of age. Section 134AB(38)(e)(i) provides that ss(38)(f) does not apply where the worker is under twenty-six years of age at the time when the worker was injured.
What that means for the plaintiff is that the assessment of his loss of earning capacity is to be undertaken by reference to general common law principles and not by reference to ss(38)(f).”
70 However, there is still the requirement to demonstrate “a loss of earning capacity which will be productive of financial loss of 40 per cent or more” – see s325(2)(e)(ii). What I understand the Judges of this court to be saying is that, in determining whether a financial loss of 40 per cent or more has been established, common law principles in relation to the assessment of damages are to be adopted. I am far from convinced that such an approach is erroneous, and it is one which I shall follow.
71 The facts in Spiteri provide a good illustration of the application of this approach. At the time of suffering injury, the plaintiff was a 22‑year-old apprentice electrician. His Honour accepted that the plaintiff would have qualified to be licensed as an A‑Grade electrician. Apart from evidence of the plaintiff’s earnings as an apprentice, there was evidence before him of the earnings of A‑Grade and B‑Grade electricians. His Honour was satisfied that the plaintiff’s injury meant that he would not be able to work as either an A‑Grade or B‑Grade electrician. His Honour also concluded that the plaintiff was fit for alternative employment and, ultimately, measured the income which the plaintiff was able to derive from such employment against that to be earned as an A‑Grade electrician. After so doing, he concluded that the plaintiff’s loss of earning capacity consequences could be fairly described as “at least very considerable”, because he was able to demonstrate a permanent loss of earning capacity of 40 per cent or more.
72 Interestingly, in Ammerlaan, the plaintiff who was under the age of 26 years, was also an apprentice – an apprentice roof-tiler – as at the time of the injury. Without going into the details, it can be said that apprentices, having a comparatively clear career and earnings path, provide equally clear examples of the operation of the relevant provisions.
73 One thing that is obvious is that there still exists a burden on plaintiffs to prove a loss of earning capacity productive of a financial loss of 40 per cent or more. What is required is not a simple assessment of loss obtained by applying common law principles. Rather, common law principles are applied in determining whether or not a 40 per cent loss has been proven.
74 In the present case, the last-minute attempt by the plaintiff in relation to a suggested nursing career having failed, there is no evidence of a clear career path leading to enhanced earnings. Indeed, if the figures in relation to nursing are left to one side, there is no satisfactory evidence at all of future earnings or a career path. In Fiji, the plaintiff worked in an office environment. Dr Michael Baynes, occupational physician examining on behalf of the defendant, has described a number of occupations as being suitable for the plaintiff, specifically stating that she is fit to undertake office or retail roles where there is limited manual handling. Dr Robyn Horsley, also an occupational physician but examining on behalf of the plaintiff, concluded her report by stating that, ultimately, the plaintiff will return to work in an office-based role. Of course, the situation has become more complicated as a result of the birth of the plaintiff’s daughter and her husband’s employment in Papua New Guinea.
75 In short, I am satisfied that the plaintiff has retained a capacity to engage in various forms of work, including office work and the type of work referred to by Mr John Anstee, such as administration assistant, receptionist, customer service representative, sales assistant and the like. Mr Anstee has also observed that he believed that the plaintiff could return to pre-injury hours of work over a period of one month. Even if this is not accepted, I note that Dr Navak, general practitioner, who last saw the plaintiff on 25 July 2018, effectively stated that she could attempt modified work for 25 hours a week. Dr Narth, general practitioner, certified her as being fit for modified duties for 25 hours per week, there being in evidence a certificate from that doctor of 24 September 2018. Dr Horsley has expressed the view that the plaintiff is fit for 25 hours per week of office-based work. On a straight “hours worked” basis, this would equate to a loss comfortably short of 40 per cent if measured against a 38 hour working week. Indeed, the occupational history taken by Dr Horsley would indicate that the plaintiff’s working hours at the time of injury were from 5pm until 11pm – six hours per day. Of course, this would translate into an even smaller loss when measured against a 25‑hour week.
76 Of course, evidence of a financial loss of 40 per cent would usually involve a comparison of actual and potential earnings figures. In the present case, and leaving to one side the last‑minute details concerning nursing incomes, the material in relation to earnings is skimpy indeed. There is a burden of proof upon the plaintiff in relation to these matters generally, and the words “productive of financial loss of 40 per cent or more” must have some meaning and applicability. The plaintiff’s claim form of 13 April 2016 does not contain any details of earnings. That portion of the form has been left blank. The Employer Injury Claim Report states that the plaintiff’s usual gross weekly earnings were $272.81, with a weekly shift allowance of $28.77, which I assume is not included in the usual gross weekly earnings figure. Those figures add up to $301.58. I am not sure how the figure of $272.81 was calculated, as it would represent only 13 hours’ work. If the plaintiff was working 30 hours per week, being the history taken by Dr Horsley, that would translate into a weekly wage of $648.30. if the weekly shift allowance was added to that, the total would be $677.07. Sixty per cent of that would be $406.24. A Vocational Assessment Report provided by Nabenet, presumably to the defendant, lists five allegedly suitable employment options. The lowest average full-time gross weekly wage payable is that to a retail sales assistant and is a wage of $850. Four of the five jobs in question, including that of a retail sales assistant, represent work which Mr Anstee believes the plaintiff could perform. If the plaintiff could only perform that lowest paying job of a retail sales assistant for 25 hours per week, and assuming that the working week is 38 hours, that would translate into a weekly payment of $559.21. On the balance of the medical evidence, I see no reason why the plaintiff could not work as a retail sales assistant or in a higher paying occupation, such as a receptionist.
77 In other words, on the available evidence, and once nursing is left to one side, it seems to me that the available evidence does not permit a finding of a financial loss of 40 per cent or more.
78 Thus, on the basis of the available evidence and including the opinions of Dr Navak and Dr Horsley, I am not persuaded that there has been demonstrated a loss of earning capacity productive of a financial loss of 40 per cent or more. In other words, I am not satisfied that a loss of earning capacity of 40 per cent exists, much less that any loss is permanent as required by s325(2)(e)(ii).
79 In summary, I find that the plaintiff has failed to discharge the burden of proof which she carries in relation to the operation of s325(2)(e) and generally. Whilst she has discharged the burden in relation to her application for leave in respect of pain and suffering, she has not done so in relation to pecuniary loss damages.
Conclusion
80 The plaintiff has discharged the burden of proof in relation to pain and suffering. Leave is given to her to bring proceedings accordingly. She has not discharged the burden of proof in relation to pecuniary loss damages and her application in that regard is unsuccessful. I shall hear the parties as to any further orders that are required.
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