Skopelianos v D and a Bray Pty Ltd (trading as Industrial Workforce)
[2013] VCC 1913
•9 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02487
| JIM SKOPELIANOS | Plaintiff |
| v | |
| D & A BRAY PTY LTD (Trading as INDUSTRIAL WORKFORCE) | First Defendant |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 December 2013 | |
DATE OF JUDGMENT: | 9 December 2013 | |
CASE MAY BE CITED AS: | Skopelianos v D & A Bray Pty Ltd (trading as Industrial Workforce) & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1913 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to tip of index finger of non-dominant hand – pain and suffering only – whether consequences meet the statutory test
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave to the plaintiff to bring common law proceedings
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Nowicki Carbone |
| For the Defendants | Mr S Jurica | Lander & Rogers |
HIS HONOUR:
Preliminary
1 The plaintiff suffered an injury to the tip of the index finger of his left hand on 10 June 2010, when it became caught in mechanical equipment at his work. He underwent reconstructive surgery but has been left with a scarred and disfigured index finger which causes intermittent pain, and restricts him in a range of recreational pursuits.
2 The body function said to be lost or impaired is the left hand. The application is brought under ss(a) and (b) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“the Act”) and leave is sought in respect of pain and suffering only.
3 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, three affidavits of the plaintiff and medical reports were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be of most relevance and which I have relied upon in coming to the conclusions referred to later in this judgment. In particular, there is little difference in the opinions of the various medical practitioners and it is not necessary to recite the opinions of those practitioners in depth. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant background
4 The plaintiff is now thirty-eight years of age. He was married and has a young son. He is in a new relationship.
5 He completed Year 12 and enrolled in a TAFE course, studying mechanical engineering. He did not complete the course. He worked for Ford Motor Company for three years, being promoted to the position of assistant process engineer. He then worked in various manual jobs, including building horse floats, sandblasting and as a labourer. His employment has always been in the manual area.
6 In November 2009, he obtained employment with the first defendant.
7 Prior to his injury, he was involved in a range of sporting and recreational activities, in particular golf, cricket and trail bike riding.
8 He was in good health and in particular, had suffered no injury nor restriction to his left hand.
The injury and its consequences
9 On 10 June 2010, he was working unloading a large shipping container. He was with another worker who was operating a forklift. The work required the use of equipment described as a “slip sheet machine” which was used to clamp and then move slip sheets. The other worker activated the gripping mechanism of the slip sheet machine, using the forklift, before the plaintiff had his left hand clear. The index finger of his left hand became trapped in the equipment. Part of the finger was badly damaged and the tip torn off. The result is graphically depicted in a photograph taken after the event.[1]
[1]Plaintiff’s Court Book (“PCB”) 47
10 He went to the Williamstown Hospital, and then the Western General Hospital. According to a report of that hospital,[2] he was taken to theatre on 11 June 2010 and, under general anaesthetic, it was noted there was a loss of the tip of the finger, a loss of the nail matrix, and the wound was contaminated. The wound was debrided, bone shards removed, and a full-thickness graft from the forearm was taken to form a flap over the injured area. The surgery involved shaving off some of the bone and the reconstruction of the nail.
[2]PCB 42A
11 The plaintiff returned to the hospital on a number of occasions in 2010 as an outpatient and to have the dressing changed. Pain and sensitivity to the area were noted. He wore a splint for a period, and was treated by a hand therapist. By October 2010, the wounds were said to have healed, sensitisation of the area was improving, and there was a good range of movement.
12 He attended his general practitioner, Dr Yacoub, on a number of occasions and for a period was prescribed Panadeine Forte. He also took over-the-counter pain-relieving medication, but has not taken any medication now for a number of years. He no longer has any treatment for the injury, although recently went to see his general practitioner to enquire as to wether anything further could be done to the finger to improve its appearance. He was advised there was nothing further that could be done.
13 I had the opportunity to inspect the plaintiff’s index finger. The finger is significantly shortened due to the amputation of the top digit. There is obvious scarring along the side, and the nail is disfigured and “claw like”. I further observed the donor site of the skin graft, and there is mild scarring to the left forearm. Overall, the reconstructive surgery was successful, given the significance of the injury suffered.
14 According to the plaintiff’s affidavit, and evidence, he suffers the following consequences of injury:
·He has pain to the tip of the finger on an intermittent basis. When he is not using the hand, there is no pain, but when he engages in any form of activity, in particular anything which requires pressure to be exerted through the finger or if he is required to lift anything, he gets sharp shooting pain which might last up to 10 seconds. Further, if he accidentally knocks the area, he suffers shooting pain. In winter he suffers more pain and sensitivity to the area. He would suffer pain as described every day, generally a “handful” of times per day depending upon the activities in which he is involved.
·Prior to the injury, he enjoyed social golf, and played on about forty weekends a year with friends, at various golf courses. Although he is right hand dominant, he is left handed in a range of sporting activities including golf. Because of the injury, he is unable to grip the golf club, and has not played at all since the injury. He said the left index finger is important in the pressure to be applied to the shaft. He not only enjoyed the sport, but enjoyed the company of friends.
·He enjoyed trail bike riding and hoped to take his son riding. Because of difficulties using the clutch with his left hand, he has ceased that activity, and sold his motorbike.
·He enjoyed social cricket and a number of other sporting activities, including football and soccer, but although he still engages in those sports, he is not able to play and enjoy them in the manner as before injury. He plays cricket and can ball using his right arm without difficulty. Batting and fielding are restricted. He is able to fish, using his right arm to cast.
·He has always worked in the manual area of employment. He returned to work with his employer in August 2010 but his employment was terminated in September 2010. In August 2011, he worked as truck driver, which he enjoyed, and the wages he received were better than his previous employment. However, he had difficulty changing the gears and a number of other activities associated with truck driving, including unloading goods, and opening and removing side gates of the truck. He resigned from that work in January 2012 as he was unable to continue because of his injury. Since that time, he has been employed as a sales representative with a company. He accepted that he enjoyed that work, although the pay was not as good as truck driving. He says he is unable to return to any form of manual employment.
·He has difficulty with some activities of daily living which involve the dexterous use of his left index finger. It is more difficult to do up buttons and tie shoes laces and some other finer movements, although generally he has been able to accommodate the difficulty by using another finger.
·He is embarrassed by the appearance of the finger and often hides it, particularly in the company of women. He has suffered some taunts at work because of its appearance.
·The injury has had some impact on his ability to undertake sporting activities with his young son.
·He is restricted to some extent with domestic activities, in particular gardening, although he is able to mow the lawn and use a rake.
Medical opinions
15 It is unnecessary to canvas the opinions of the treating practitioners, nor the consulting practitioners, Mr Kenneth Myers for the plaintiff, nor Messrs Behan and Stapleton for the defendants. There is no significant difference in the opinions of these various practitioners, save in several respects to which I shall shortly refer.
Submissions on the part of the Defendants
16 Mr Jurica made the following submissions:
·The plaintiff’s surgery was successful, and it has now been some years since the plaintiff had received any treatment, or taken any pain relieving medication. There is no need for any future treatment.
·He referred to the opinion of Mr Stapleton[3] that the plaintiff had a capacity for pre-injury duties, although acknowledged that the plaintiff would have difficulty in many manual tasks. Nonetheless, he had changed employment to that of a sales representative, was apparently successful in that area, and he enjoyed the job.
·In relation to the plaintiff’s capacity to play golf, he referred to the reports of Mr Behan[4] and Mr Stapleton,[5] which he said inferred that the plaintiff had continued to play golf, but found it more difficult and less enjoyable. In any event, he said the plaintiff was able to play cricket and some other sports, albeit to a reduced extent.
·He described the pain of which the plaintiff complained in the injured area as modest and intermittent and emphasised that if the plaintiff was not using his hand, there was no pain.
·The plaintiff was mostly able to do all of his domestic activities, and had adapted to those activities which required fine motor movement.
·There were a range of activities which were not lost, including fishing, and that the plaintiff was able to interact with his son.
·In terms of the disfigurement to the finger, Mr Jurica submitted that it was to the tip of a finger only, that the surgery had been largely successful in repairing the area, and although there was some scarring and shortening of the finger, it was not in an area prominent to observation.
[3]Defendants’ Court Book (“DCB”) 24C
[4]DCB 9
[5]DCB 24C
Conclusions
17 I found the plaintiff an impressive and honest witness giving a fair and measured account of the injury, and the consequences suffered. I accept his complaints of pain and restriction as described in his evidence and affidavits, and the effect upon the various recreational activities.
18 I accept that while the initial injury was significant and dramatic, the reconstructive surgery performed at the Western General Hospital was successful. Although the finger is disfigured, generally the plaintiff has been able to regain use of the digit for many activities.
19 I accept the evidence of the plaintiff that he is unable to return to the areas of manual employment which he had been involved in for most of his working life. I accept his evidence that he was unable to continue work as a truck driver after the injury and that area of employment is no longer open to him. I prefer the evidence of Mr Myers[6] that he has no capacity for full-time unrestricted manual employment, or pre-injury employment, to that of Mr Stapleton,[7] who considered that he did have the capacity for pre-injury duties. For a man who was able to carry out manual work and activities in an unrestricted manner, that loss is significant. He has been able to adapt to a new area of employment in sales, but should he, for any reason, lose that employment and be unable to find something similar, manual employment is lost to him.
[6]PCB 46, 46C
[7]DCB 24C
20 I accept that the plaintiff was a consistent social golfer prior to injury and that that was an activity which he not only enjoyed, but which provided him with a significant social outlet. I accept his evidence that he is no longer able to play golf, as he is unable to grip the club. I prefer his evidence to the histories in several of the medical reports which suggest he was still playing golf after the injury. The loss of that activity is again a significant loss for him.
21 I further accept his evidence that he suffers pain to the area of the left index finger as he has described, which is intermittent and shooting at times. Although he does not complain of constant, chronic pain, I nonetheless accept that pain of the type that he describes, suffered regularly on a daily basis, is a significant consequence for him.
22 I accept that he is no longer able to ride a motorbike and is not able to enjoy that activity with his son. I accept his evidence that he has had to sell his motorbike.
23 I further accept that there are a number of activities of daily living, including domestic activities, in particular those requiring fine manual movement of the left index finger which cause him some difficulty.
24 Overall, I am of the view that the pain and suffering consequences described above do meet the “very considerable” test as prescribed by the Act, in particular, his loss of his capacity to return to manual employment, his inability to play golf, and the pain that he suffers on an intermittent basis. When looked at together, these consequences lead me to the conclusion that the plaintiff meets the statutory test.
25 Given my finding in relation to physical injury, it is unnecessary for me to determine whether the scarring to the finger meets the “permanent serious disfigurement” test in ss(b) of the definition of “serious injury” in s137AB(37) of the Act.
26 Accordingly, leave will be granted to bring proceedings at common law for pain and suffering, and I shall make the consequent orders.
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