Spano v One Paper Industries Pty Ltd
[2015] VCC 787
•19 June 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-06628
| JOHN GIOVANNI SPANO | Plaintiff |
| v | |
| ONE PAPER INDUSTRIES PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 June 2015 | |
DATE OF JUDGMENT: | 19 June 2015 | |
CASE MAY BE CITED AS: | Spano v One Paper Industries Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 787 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – crushing injury to right middle and ring fingers – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b) and (37)
Cases Cited:Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to commence proceedings at common law for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr D O’Brien | Taylor & Preston Lawyers |
| For the Defendants | Mr J Gorton QC with Ms J Frederico | Wisewould Mahony |
HIS HONOUR:
1 On or about 21 December 2011, in the course of performing work for the first defendant, One Paper Industries Pty Ltd, the plaintiff suffered a crushing injury to his right hand, in particular the right middle and ring fingers.
2 By an Originating Motion filed in this Court, the plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings at common law against the first defendant. He relied upon paragraph (a) of the definition of “serious injury” in s134AB(37) of the Act, namely “permanent serious impairment or loss of a body function”, being the right hand.
3 At hearing, the plaintiff confined his application to one for leave to claim pain and suffering damages only.
4 The plaintiff tendered in evidence affidavits sworn 14 August 2013 and 15 June 2015 (exhibit A). He also relied upon medical reports of treating and medico-legal practitioners. The defendants relied principally on surveillance evidence tendered (exhibit 2). The plaintiff was the only witness who attended for cross-examination.
5 Senior Counsel for the defendants agreed that no issue of credibility arose on the hearing of the application and that I should accept the plaintiff as a witness of truth.
The Plaintiff’s background
6 The plaintiff was born in September 1954 and is aged fifty years. He lives at home with his partner, Sharon Mansour, and their three children, aged sixteen, fifteen and eleven.
7 The plaintiff attended high school and completed Year 11. Otherwise, he has no further formal qualification.
8 In the past, the plaintiff has worked in a business assembling engines, performed work for Qantas as a baggage handler and since about 2006, has operated his own waste disposal business.
9 For the purposes of this application, it was agreed that I should assess the plaintiff’s claim as having occurred in the course of his employment with the first defendant on or about 21 December 2011.
The incident
10 On or about 21 December 2011, the plaintiff had been collecting waste from Bambra Press in Port Melbourne. The waste was held in large bins that hold around 660 litres. The bins were heavy and awkward to manage. At the time of injury, the plaintiff was operating the hydraulic controls on the rear of the first defendant’s truck when a bin fell from the mechanism and crushed his right hand between the bin and the end section of the hydraulic lifter. In that process, the plaintiff suffered crushing injuries to his right middle and ring fingers.
Treatment
11 On the same day, an ambulance was called and the plaintiff was taken to The Alfred hospital for emergency surgery, including amputation of the distal phalanx of the ring finger and the insertion of a pin which ankylosed the distal phalanx of the middle finger to the adjacent phalange. He was discharged on 22 December 2011.
12 Thereafter, the plaintiff underwent treatment from at least two occupational therapists.
13 On or about 31 January 2012, the plaintiff was further admitted to The Alfred hospital for treatment, resulting from an infection in the bone of his right middle finger. This treatment included surgery to remove about 10 millimetres of bone from his middle finger and he was prescribed a course of antibiotic medication.
14 Thereafter, the plaintiff was treated from time to time by his general practitioner, Dr Robert Reid, of Keilor. Dr Reid reported on 17 January 2015 (exhibit B) that the plaintiff had presented to him on 10 December 2014 with pain in his right ring finger, accompanied with sleep disturbance. Examination revealed exquisite tenderness at the tip of the right (ring) finger. He stated that the working diagnosis was of neuropathic pain secondary to terminal nerve fibre entrapment in scar tissue or neuroma – both possibilities directly related to his original injury in December 2011. On this occasion, he was prescribed Lyrica, 75 milligrams. On review on 14 January 2015, the pain had eased and his sleep improved. At that stage, he was optimistic that his neuropathic pain would settle when combined with the Lyrica.
15 Since Dr Reid reported on 17 January 2015, there has been no further material as to current treatment. In cross-examination, the plaintiff stated that the last time he took Lyrica was last Friday night (12 June 2015) and the time before that may have been earlier in that week. He could not remember when he last obtained a prescription for Lyrica, but it was at least some weeks ago. He estimated that he would take one tablet of Lyrica approximately every few weeks.
Medico-legal examinations
16 The plaintiff was examined for medico-legal purposes by consultant general surgeon, Associate Professor K A Myers, on 14 May 2015 (exhibit D). After reciting the relevant history of injury and treatment, Professor Myers reported:
“Symptoms
He gets some pain at the tips of the two fingers particularly if the hand is placed in hot water, for example helping to do the dishes. Because of stiffness of the two fingers they get in the road and make it hard for him to work, for example wiring on his truck. He finds it hard to pick up small objects or to grip objects with full strength.”[1]
[1]Exhibit D, Plaintiff’s Court Book (“PCB”) page 34
17 Professor Myers reported on the effects on daily living activities as follows:
“He can no longer go ten pin bowling with his children. He has a boat and formerly the family would go water skiing at Eildon but he now has insufficient grip to hold the handle of the tow rope so that he is now the designated driver for his children to ski. He finds it difficult to kick a football particularly to mark a football with his children.”[2]
[2]Exhibit D, PCB 35
18 On examination, Professor Myers noted there was deformity of the nail and fusion of the distal interphalangeal joint of the middle finger, and there was numbness of the whole of the distal phalanx. Further, there was amputation through the mid distal phalanx of the ring finger and fusion of the distal interphalangeal joint with numbness of the whole of the residual distal phalanx. All other movements of the joints in the hand were normal.[3]
[3]Exhibit D, PCB 35
19 As to the consequences of the relevant injuries, Professor Myers noted that there was no loss of earning capacity and the plaintiff was working full time in his former employment. He did not anticipate that his injuries would prevent him continuing with his present level of employment. However, he thought there would be “appreciable restriction of social, domestic and recreational activities”.[4]
[4]Exhibit D, PCB 36
20 Further, he thought it was quite likely the plaintiff would benefit from amputation of the distal phalanx of the middle finger but he would still be left with pain and numbness of the tips of the fingers that would interfere with his capacity for work and enjoyment of life.[5]
[5]Exhibit D, PCB 36
21 The defendant, for its own part, had the plaintiff earlier examined by plastic and reconstructive surgeon, Associate Professor Donald Marshall, on 18 June 2013 (exhibit E) and consultant orthopaedic surgeon, Mr Damian Ireland, on 3 December 2013 (exhibit F).
22 Professor Marshall noted that, as a result of the injury, the plaintiff had lost the terminal phalanx of the ring finger, and the distal interphalangeal joint of the adjacent middle finger was now fused. He noted that when the plaintiff attempted to make a fist, the middle finger sticks out and he is unable to flex it into the palm. The plaintiff told Professor Marshall that the finger gets in the way and he has learned many “trick” movements to avoid injury. The plaintiff also told Professor Marshall that he had difficulty using tools and holding small objects in the palm, as they tend to slip out because of the amputation of the ring finger.[6] Of note, Professor Marshall stated:
“… He is still troubled by discomfort in the middle finger and contemplates the possibility of this needing to be amputated some time in the future. He needs to file the nail down regularly to avoid it catching on his clothes.”[7]
[6]Exhibit E, Defendants’ Court Book (“DCB”) page 2
[7]Exhibit E, DCB 2
23 Overall, Professor Marshall considered the prognosis to be good but it was possible that further surgery may be required to the middle finger, in that the terminal phalanx may require amputation in the future.[8]
[8]Exhibit E, DCB 3
24 Mr Ireland took a consistent history, but expanded on the need for the readmission to The Alfred hospital because of infection of the middle finger. On that occasion, the Kirschner wire was removed, together with some of the infected distal phalanx of the middle finger and, on this occasion, the plaintiff was an inpatient for five days.[9] Mr Ireland also noted:
“Since returning to work he has not required any time off work from symptoms referrable to his right hand. His current work involves driving an industrial waste truck, doing routine maintenance of his truck and undertaking book work for his business. He employs casual drivers to drive his truck on weekends.”[10]
[9]Exhibit F, DCB 13
[10]Exhibit F, DCB 13
25 The history of complaints to Mr Ireland consisted of:
“… weakness and awkwardness with his right dominant hand due to a combination of stiffness of the middle finger and amputation of the ring finger. This causes him difficulty with grip strength and [he] is unable to hold ropes and is no longer able to do 10-pin bowling. He also complains of ‘pins and needles’ affecting the middle finger and numbness over the stump of the ring finger.”[11]
[11]Exhibit F, DCB 14
26 Importantly, the plaintiff told Mr Ireland he was not receiving any treatment for the symptoms outlined above, and he was taking no medication.
27 The plaintiff also stated that he attended to all the normal activities of daily living, including household chores and house maintenance. He told Mr Ireland that the effect on his social, recreational, hobby and sporting life consisted of an inability to go ten-pin bowling, which he had attended once per month prior to the injury. He also stated he was no longer able to water ski because he could not hold a ski rope, and he also mentioned that he had difficulty with his sex life because of the glove-like feeling of the two relevant fingers. The plaintiff was also embarrassed at the cosmetic appearance of his hand, which he stated he tended to hide from view.[12]
[12]Exhibit F, DCB 14
28 When commenting on the plaintiff’s work capacity, Mr Ireland stated:
“[The plaintiff] … does suffer from awkwardness due to loss of length of both the ring and middle fingers which interferes with his normal activities of daily living and many aspects of his work, although there is no specific functional loss other than those mentioned above … .
[The plaintiff] … is currently working full time as a self-employed contractor driving an industrial waste collection truck. He states that his work involves driving his truck, doing routine maintenance on his truck and attending to the necessary paperwork for his self-employed business. He works on a full-time basis. He employs casual workers to drive his truck on weekends.”[13]
[13]Exhibit F, DCB 16
Pain and suffering
29 In his first affidavit sworn 14 August 2013, the plaintiff swore as follows:
“23.I am frustrated by my work injury and my incapacity. It has caused all manner of upset and disruption in my life because previously I was often working with my hands, which since my work injury has become much more difficult. I am right-handed and heavily rely on my right hand for almost everything that needs the use of my hands. This includes writing, most of my personal hygiene and self-care activities and most other everyday activities such as opening doors. My right hand is my dominant hand and I have significantly greater strength and co-ordination in my right hand than my left. My incapacity in my right hand has given me a great deal of frustration and made me upset.
24.As a result of my work injury, I often experience significant pain in my right middle and ring finger. This pain is generally exacerbated early in the morning when it is cold and my fingers throb. This pain has not improved since my treatment despite my efforts to manage the pain. I often find J have numbness and pins and needles in my fingers and it feels as if they are full of fluid. I find that I am unable to bend my right middle finger at the top joint to make a fist. I have very little sense of touch in my right middle and ring fingers and I often get cramps in my right hand from being unable to stretch. The pain is made worse, especially in my right ring finger, when I tap it against things and make other percussive movements.
25.As a result of surgery for my work injury, I have scarring on my right middle and ring fingers. The nail on my right middle finger is split in two and grows in this split way. The appearance of my fingers is a significant concern to me. Often when I [am] in public, I try to hide my fingers because I am on occasion embarrassment (scil embarrassed) by their appearance.
26.My work injury has also adversely affected and interfered with my normal sexual function because of the lack of feeling in my right middle and ring fingers. This has had a very noticeable impact on my relationship with my partner.
27.As a result of my work injury, I sometimes have difficulty performing physical activities such as carrying, lifting, pulling, climbing and exercising because the grip in my right hand is significantly weaker than before my work injury.
28.As a result of my work injury my ability to participate in individual or group activities, sports and hobbies has also been adversely affected and I am not as active with my children as I had been before my work injury. Before my work injury, I used to enjoy kicking the football with my children, but now I often avoid this because I am worried about jarring or bending my fingers. Before my work injury, I used to enjoy waterskiing with my partner and children, but now I usually drive the boat and not ski because I am concerned that I do not have the strength to hang onto the rope. I enjoy bowling with my partner and children, but I often avoid this because I am worried about being unable to properly release the bowling-ball without doing further injury to my right middle finger. I now watch my family bowl and occasionally bowl with two hands, but I am not as involved as I was before my work injury. This has an adverse impact on my relationships, particularly with my children because I am less physically active and involved with them than I used to be.
29.Before my work injury I used to enjoy helping my family with maintenance and repairs around the house, including tiling, plastering and other renovation and improvement work. Following my work injury, I often find these tasks extremely difficult because I have difficulty gripping things. This often leaves me feeling frustrated. I also used to enjoy carrying out maintenance on my family car and work trucks, but I often find this to be difficult because of my lack of mobility in my right middle finger. It is especially difficult when J am trying to do repairs that are awkward or fiddly. This often leaves me feeling frustrated.”[14]
[14]Exhibit F, DCB 16-17
30 In his second affidavit sworn 15 June 2015, the plaintiff deposed as follows:
“2.Since the date of my First Affidavit the injuries to the fingers on my right hand have not improved at all. The pain, loss of sensation, and loss of grip all remain the same. The injuries continue to cause me ongoing pain and restrictions.
3.I am able to work but every task at work is more difficult because of the injuries and causes me pain. I find it difficult to pick things up, and difficult getting into and off the truck because there is a lack of grip.
4.My right middle finger is still rigid because the knuckle does not bend, and this means it often gets caught which is very painful. I have been told by surgeon Dr Myers that I might be better off getting the top part of the finger amputated which distresses me as I do not want to be further disfigured.
5.I have continued to have constant pins and needles in my right ring finger which is very irritating. It aches all the time, especially in colder weather or in hot water such as when I have a shower.”[15]
[15]Exhibit A
31 The plaintiff also confirmed the other disabilities referred to in his first affidavit.
32 Under cross-examination, the plaintiff was shown surveillance film taken of him performing his normal job on 10 October 2013 and 22 October 2013. In essence, this film shows the plaintiff emptying large 600-litre rubbish bins by use of a hydraulic mechanism attached to the back of his truck. He is seen to push fully laden wheelie bins with two hands up to the back of the truck and on occasions, remove an empty wheelie bin by pulling with just his right hand.
33 Upon being shown the film, the plaintiff stated:
A: “I can do just about everything with my right hand.[16]
[16]Transcript 41, L18-19
…
A: I drive a truck.[17]
…
Q:So in terms of the hand impacting on your work, you do all the same duties at work that you always used to do?‑‑‑
A: Yeah, pretty much, yeah.”[18]
[17]Transcript 42, L20
[18]Transcript 43, L11-12
34 Further, the plaintiff further stated that a normal day sees him stopping work at about 8.00 to 10.00am, after which he performs paperwork consisting of bookkeeping in the course of his own business. He works on reconciliations and operates a computer. Apparently, there is very little actual paper used in the business.
35 In addition, the plaintiff stated that he experienced pain on certain occasions, especially if he is overusing his hand. He further said that on the two affected fingers, it feels like a “woollen glove”.[19]
[19]T47, L17-29
36 Although not expanded upon in his affidavit, under cross-examination, the plaintiff stated one of his passions in life is to be involved with his children’s under-age football teams and he attends training during the week and on match day. He is an assistant coach and sometimes water boy. He engages in training, including marking and kicking a football, and on occasions, marking a football will cause pain in the affected fingers. He also stated, with respect to marking the football:
A:“Especially when the ball comes down and hits the top of a finger of penetrates the finger hard. It’s, you know – a lot of times I put one hand up and drop the ball down like that rather than – (witness demonstrates) … .
Q: But sometimes you do mark it with both hands?---
A:Yeah, with a lot of pain mind you. A lot of pain. Sometimes it’s fine but a lot of the time it’s got a lot of pain, yes.”[20]
[20]T52, L12-18
37 He was further asked:
Q: “Once you get underway in your work, does the aching go away?---
A: No it hurts all the time but I just got to put up with it.
Q:When you say ‘hurts’ do you mean – I asked you about that and you said it aches in cold weather and now you’ve just said it hurts all the time effectively. What is the situation?---
A:Well I start work very early in the morning so most mornings it is cold and it’s just from overuse and just gripping rubbish bins all day, I do get – I do get pain in my hand.”[21]
[21]T39, L7-16
38 In re-examination, the plaintiff said that although his hand hurts all the time, he does nothing to stop the pain.[22] Things that increase the pain include putting his hands in hot water when washing the dishes.[23] In the morning, his ring finger will “resonate” which he explained as a cold feeling, a bit like a tingling of your ears when one is attending the snow.[24] However, whilst sitting in Court, his hand was “Okay”.[25]
[22]T54, L9
[23]T54, L21-27
[24]T55, L18-21
[25]T55, L24
39 Further, when asked about his grip, he stated:
“I just don’t have that grip, it’s just I don’t have the strength, I don’t have what I had. It’s like having a splint on your hand.”[26]
[26]T55, L1-3
40 With respect to throbbing caused by marking the football, he stated:
“If I do it very badly, a lot of times I’ve hurt it where this middle knuckle’s actually swollen up and I have trouble for the next two or three weeks, just like jarring the normal finger at footy and I’ve done that quite a number of times.”[27]
[27]T56, L27-31
41 He further confirmed that he has given up ten-pin bowling and water skiing.
42 Further, when explaining his loss of grip with respect to skiing, he stated:
“I just can’t grip. I just can’t have that grip. I don’t have that grip and once the tension pulls on it, it basically – this finger mainly, it feels like it’s pulling the finger out of the knuckle.”[28]
[28]T53, L19-22
Principles
43 The plaintiff must prove in this proceeding that the pain and suffering consequences of his injury, when judged by a comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than significant or marked – and as being at least very considerable. Accordingly, this task involves a value judgment in which matters of fact and degree and of impression are operative.[29]
[29]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph 41
44 This proceeding, in my opinion, is on the borderline of the threshold. The plaintiff is a fifty-year-old family man with a successful waste disposal business and a happy involvement with his family which includes, but is not limited to, his “passionate” involvement with his children’s football teams, including interaction at training and acting as an assistant coach.
45 I accept the plaintiff absolutely as a witness of truth and I accept that in the foreseeable future, he will have a continuation of the symptoms described and of consequential inhibitions upon his enjoyment of life, as asserted by him. Although I accept that he has the constant pain to which he refers, there was no attempt on his part to say that it was severe pain, other than when there is a throbbing sensation caused on occasions when he suffers some trauma to the hand. However, he has given evidence that he is careful with his hand and there are no activities in his general life, apart from the ten-pin bowling and the water skiing, of which he cannot partake. I accept there would be some limitations in his intimate life with his partner but otherwise it would appear that he is able to lead a full and satisfying family life and he suffers no functional disabilities in his work or loss of income.
46 Having accepted him as a witness of truth, I do not doubt that the plaintiff’s disabilities disclose pain and suffering consequences which are both “marked” and “significant”. In particular, I consider that the matters referred to in his affidavits referred to in paragraphs 29 and 30 herein, have not been significantly diminished in cross-examination. In particular, I accept he would have difficulties writing, engaging in personal hygiene and self-care activities and everyday activities such as opening doors. I also accept that the incapacity in his right hand has given him a great deal of frustration and made him upset. Finally, I am reminded of the dicta of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2),[30] to the following effect:
“… I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[30][2008] VSCA 260 at paragraph 3
47 Accordingly, although finally balanced, I consider that the plaintiff has just tipped the scales in his favour and that the consequences can be fairly described as being “more than significant or marked and as being at least very considerable”.
48 Leave will be granted as sought and I will hear the parties as to any subsequent orders.
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