Shelton v Victoria WorkCover Authority
[2011] VCC 1209
•18 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BENDIGO
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04316
| JOSHUA BIVEN SHELTON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 16 May 2011 |
| DATE OF JUDGMENT: | 18 May 2011 |
| CASE MAY BE CITED AS: | Shelton v Victoria WorkCover Authority |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1209 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – Injury to non dominant left hand – permanent serious disfigurement.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC | Arnold Dallas McPherson |
| Mr M T Schulze | ||
| For the Defendant | Mr A J Moulds SC | Hall & Wilcox |
| Ms S Manova | ||
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering consequences of an injury which he suffered in the course of his employment with Work One Pty Ltd to his left hand on 9 May 2008.
2 In the proceeding, the plaintiff relies on both the disfigurement associated with the injury and the impairment of function which the injury has occasioned to his left hand.
3 In an affidavit sworn by the plaintiff on 20 May 2010, the plaintiff –
• Describes sustaining a crush injury to his left hand which included the partial amputation of the top of his middle finger and severe friction burns to the back of his left hand which required suturing; and undergoing surgery involving the performance of a skin graft in which skin taken from his left forearm was applied to the dorsum of his hand. • Said that he was involved in a motor vehicle accident on 2 January 2009, as the result of which his right arm was amputated at a level just below his right shoulder, and deposed that this injury increased the degree of incapacity he was suffering as a result of the injury he had earlier sustained to his left hand and fingers, stating: “In short, the motor vehicle accident led to a situation where I now have only my injured left hand to use for all my activities of daily living and other such tasks.
• Described his current symptoms as involving:
(i) severe pain whenever he knocked his left hand and fingers; (ii) significant loss of strength in his left arm and forearm; (iii) significant loss of grip strength in his left hand and fingers; (iv) a loss of dexterity and movement in his left middle finger. 4 In addition to the above, the plaintiff deposed:
“The scarring to my left hand is ugly and embarrassing. For a start, the skin graft on the back of my left hand is a different colour to the rest of the skin of the hand and it also tends to crack and break down somewhat from time to time. I have also lost the nail from my left middle finger, and the finger itself looks quite deformed. In addition, the tip of my left middle finger, or what is left of it, is very sensitive to touch and, as stated, if I accidentally knock it I suffer a great deal of pain.
There is also some numbness around the area of the skin graft site on the back of my left hand. In addition, I also have scarring of the graft donor site of my left forearm.
Since I lost my right arm in the motor vehicle accident, I am unable to hide the scarring and deformity on the only hand that I have left. Before the motor vehicle accident, I could keep my injured left hand in my pocket most of the time, and keep the scarring and deformity out of view. Now I have no choice but to put the scarring and deformity into full view whenever I have to use the hand for any activity around other people. This causes me a great deal of embarrassment.
People now ask me about the scarring and deformity on my left hand and when they do, it merely reminds me of the many problems that I now suffer. However, as stated, it is difficult to hide the scarring and deformity on my left hand, as I now have no choice but to constantly put the scarring to the view of others when I try to do any of my activities of daily living and other such tasks.”
The Viva Voce Evidence Given by the Plaintiff
5 The plaintiff gave viva voce evidence in the proceeding.
6 In the course of evidence-in-chief, the plaintiff said:
• that every now and then a section of his nail bed broke through his skin; • that he experienced impaired sensation but also heightened sensitivity at the side of his finger and also experienced impaired sensation in a number of areas of the skin graft which had been applied to the dorsum of his hand. 7 In the course of cross-examination, the plaintiff was asked:
“Q: Are you restricted in relation to daily tasks at all in relation to your
left hand, or are you able to do everything?---A: I try to do everything, yes, but there’s some things I can’t do. Q: What can’t you do?--- A: I can’t really do buttons up on my shirt … Q: Anything else?--- A: Little things like fiddly things as in picking up small objects off the
ground.Q: Coins?--- A: Yes, coins, screws or bolts or something.”
8 The plaintiff was asked whether he found the appearance of his hand to be embarrassing in the presence of other people, to which he responded:
“A: Yes, it’s just like a bit embarrassing, I try to keep it out of the way. Q:
Surely the position is – and I ask you to comment on this, Mr Shelton, that the main attention of people who observe you would be to the tragic loss of your right arm, would it not?---
A: Yes, because I can’t physically put away my hand if I’m doing
something and then they ask what happened to that as well.
Does the Impairment of Function Constitute a Serious Injury?
9 Although a challenge was made as to the plaintiff's reliability as a witness on the basis of the evidence given by him as to the presence of numbness at the graft site on the dorsum of his left hand, generally I found the plaintiff to present as someone who was not making any attempt to overstate the extent of his disability. (See, for example, his evidence at Transcript 20, Lines 8 to 25, and Transcript 21, Lines 22 to Transcript 22, Line 17.) Accordingly, I am satisfied that the plaintiff's evidence generally as to the extent of the problems that he has with his left hand was accurate and that I should accept it.
10 Accordingly:
•
I accept the plaintiff’s evidence that he suffers from both numbness and hypersensitivity in his index finger, which evidence is supported by the findings of Mr Stapleton in his report at plaintiff's court book page 29.
•
I accept the plaintiff's evidence as to the presence of numbness at the graft site on the dorsum of his hand. The failure however of both Mr Stapleton and Mr Ham to refer to the presence of this issue leads me to the view that it is unlikely that the plaintiff mentioned the problem to either of these doctors, most probably for the reason that its presence does not give rise to a problem of any great significance to him.
•
I accept the fact that the relevance of the disability associated with the amputation of the tip of the plaintiff's right index finger is significantly heightened by the injury sustained by him to his right arm as his left hand has now become his dominant hand.
11 No issue is taken as to the plaintiff's evidence that he has difficulty manipulating fine objects and undertaking fine movements which necessitate the tip of his index finger.
12 Whilst I accept the plaintiff’s evidence that his grip strength is diminished, the evidence as to the consequences of this problem upon the plaintiff is extremely sparse.
13 I am satisfied that the opinion of Dr Jenkins that the plaintiff’s injury “has stabilised such that the plaintiff has no functional limitation”[1]overstates the reality of the situation given the findings which I have made. Her statement suggests however, that the impact of the plaintiff’s impairment upon his day to day life was such that Dr Jenkins had been unable to identify it without close scrutiny. This in turn tends to confirm the impression which I have formed as to the severity of the impairment of function of the plaintiff's left hand; namely that whilst the injury gives rise to consequences which could be appropriately described as being attendant with considerable inconvenience, it is not appropriate to describe those consequences as being such that they meet the threshold imposed by the Act.
[1] See the report dated 17 December.
Does the Disfigurement Constitute a Serious Injury?
14 Mr Murray Stapleton, a plastic surgeon, in a report dated 15 February 2010 opined that:
• The plaintiff’s left middle finger was shortened by two centimetres; • An eight by seven centimetre split skin graft was present over the dorsum of the plaintiff’s left hand, the donor site for the graft (which measured twelve by nine centimetres) being located on the left forearm; • The plaintiff’s loss of length in his middle finger explained the fact that the power of his grip in his left hand was diminished. 15 Mr Frank Ham, a plastic surgeon, in his report dated 22 July 2009, described the plaintiff as having sustained a crush injury and a friction burn over the dorsum of his left hand. He described the graft site as being 8.5 centimetres in width and eight centimetres in length and commented:
•
As to the donor site; that the skin graft on the left forearm was mildly red in colour and measured eleven centimetres by six centimetres. He said it was firmly healed and stable;
• As to the Plaintiff’s middle finger: "The top of the middle finger has been amputated obliquely, leaving
the finger up to 1.7 centimetres shorter than would be expected."
16 Mr Ham described the graft of the dorsum of the hand in the following terms.
"The plaintiff has a prominent pigmented and speckled graft on the dorsum of the left hand. The pigmentation in the graft combined with the speckling due to the perforation of the skin on the dorsum of the left hand is very obvious. This is particularly so as it is his only hand."
My Assessment of the Appearance of the Scarring
17 In deciding the issue which arises in this case, namely whether the plaintiff's disfigurement when judged by the comparison of other cases in the range of possible disfigurements may fairly be described as being more than significant or marked and as being at least very considerable I am required to assess where the facts of the case sit in the broad spectrum of cases. The task which I am required to undertake has been described as involving a value judgment in which matters of fact and degree and of impression are operative. This statement made by the Court of Appeal in Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181 has particular relevance to a case such as the present in which I am required to assess the severity of a disfigurement.
18 The tip of the plaintiff's index finger is obviously bulbous, misshapen and is, in my opinion, unsightly.
19 The donor site of the skin graft is well described by Mr Ham. Although it occupies a large area, one's attention is not immediately drawn to the site given the mild colour difference between the site and the adjoining skin.
20 The site of the skin graft is also well described by Mr Ham. The graft occupies an area comprising most of the dorsum of the plaintiff's left hand. Mr Ham describes the site as being very obvious because of its pigmentation and its pale speckling due to the perforations. He commented that this was particularly so as it is the plaintiff's only hand. I agree with each of these observations by Mr Ham.
21 In my opinion, the disfigurement of the middle finger together with the unsightly appearance of the graft site combine to concentrate and accentuate the disfigurement which arises by the presence of both scars so as to present a hand which in my opinion is obviously significantly deformed.
22 In my opinion the location of the graft site on the dorsum of the plaintiff's only hand would tend to heighten the prospect of attention being drawn to the dorsum of the disfigured hand. In this regard:
(i)
I agree with the comments made by Mr Ham that the disfigurement of the dorsum of the hand is very obvious, particularly so that it is the plaintiff's only hand; and
(ii)
I am cognisant of the consistency between the opinion expressed by Mr Ham in this regard and the plaintiff's evidence that the appearance of the hand attracts comments and attention and that that comment and attention concerns and upsets him.
23 Although the plaintiff's evidence in this regard was challenged on behalf of the defendant I do not find the evidence to be at all surprising and I accept it.
24 For the reasons which I have expressed, I am satisfied that the appearance of the plaintiff's hand does constitute a permanent serious disfigurement under the provisions of the Act in that when judged by other cases of possible disfigurement, it can be fairly described as being more than significant or marked, and being at least very considerable.
25 It follows that the plaintiff is entitled to the leave which he seeks under sub- paragraph (b) of the definition of serious injury found within s.134AB(37) of the Act.
26 I will hear the parties as to the precise form of the order to be made in the proceeding and also as to costs.
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