Sparrow v Ritchies Stores Pty Ltd
[2012] VCC 2
•20 January 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-01119
| CLINTON SPARROW | Plaintiff |
| v | |
| RITCHIES STORES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 January 2012 | |
DATE OF JUDGMENT: | 20 January 2012 | |
CASE MAY BE CITED AS: | Sparrow v Ritchies Stores Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS –Serious Injury – Pain and suffering consequences of injury.
LEGISLATION CITED – Accident Compensation Act 1985; sub-s.134AB(37); s.134AB(16)(b)
CASES CITED – Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; Acir v Frosster Pty Ltd [2009] VSC 454
JUDGMENT – Leave granted to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Act to recover damages for injuries for pain and suffering arising out of employment with the defendant on or about 9 April 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garnham | Slater & Gordon |
| For the Defendant | Mr J Batten | Hall & Wilcox |
HIS HONOUR:
1 Mr Clinton Sparrow was employed by the defendant as a butcher. On 9 April 2008, he suffered injury when he cut himself with a boning knife in the course of that employment (“the incident”). He injured the left ulnar nerve and various tendons in the left wrist and hand.
2 He seeks the leave of the Court to issue a proceeding to recover pain and suffering damages in respect of that injury.
3 His right to do is governed by the provisions of s.134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that the injury suffered by him is a “serious injury”.[1]
[1]Section 134AB(19)(a)
4 The term “serious injury” is defined in sub-s.134AB(37), insofar as is relevant, as a “permanent serious impairment or loss of a body function”. The body function the subject of this claim is that of the left upper limb and, more specifically, that of the left wrist, hand and fingers.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33 at paragraphs [18] to [19]
6 The term “serious” is to be satisfied by reference to the consequences to Mr Sparrow of any impairment or loss of the function of his left upper limb with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of a body function.[3]
[3]Section 134AB(38)(b)
7 The Act provides that impairment of loss of a body function shall not be held to be “serious” for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being “more than significant” or “marked”, and as being “at least very considerable”.[4]
[4]Section 134AB(38)(c)
8 The issue to be determined in this application is whether the consequences of the injury suffered by Mr Sparrow to his left wrist, hand and fingers can fairly be described as being “more than significant” or “marked”, and as being “at least very considerable”. The defendant admits that Mr Sparrow suffered a laceration injury to his left wrist and ulnar nerve in the incident but denies that the consequences for him of that injury are “very considerable”.
Background
9 Mr Sparrow was born in Western Australia. He is currently aged twenty-six. At the time of the incident, he was aged twenty-two.
10 He was educated to Year 10 and, soon after school, commenced and completed an apprenticeship as a butcher. His father had been a butcher for many years and is still engaged in that occupation. Even before completing school, Mr Sparrow had regularly assisted his father in his butcher’s business. It had always been his intention to qualify as a butcher and to pursue that career. From the completion of his schooling until the date of the incident (a period of approximately six or seven years), he had worked full-time as a butcher or apprentice butcher. He enjoyed the work and intended to continue to pursue that career indefinitely.
11 In mid-2007, Mr Sparrow’s parents and family moved from Western Australia to Rosebud in Victoria. Mr Sparrow initially worked as a butcher for Hooker Meats Pty Ltd, which traded as Peninsular Bulk Meats. In November 2007, he commenced working as a butcher for the defendant. Approximately six months later, he suffered the subject injury in the incident.
Post-Accident
12 Immediately following the incident, Mr Sparrow was taken to the Rosebud Hospital. He was suffering severe pain and was in a state of shock. Initially, he was unable to move the fingers of his left hand. After treatment at Rosebud Hospital, he was taken to the Frankston Hospital, where he was admitted as an inpatient under the care of Mr David Ross, plastic surgeon.
13 On 11 April 2008, he underwent surgery to his left wrist, which involved repair of damaged tendons and the ulnar nerve in the vicinity of the laceration. His left hand, wrist and forearm were placed in a plaster splint for some time (an “anti-claw” splint). He underwent intensive physiotherapy and hand therapy. He was taught home-based exercises, which he continued to perform. He attended the plastic surgery outpatients clinic on a regular basis until July 2008.
14 In July 2008, Mr Sparrow returned to work with the defendant. Initially, he worked on a part-time basis doing light duties which did not involve any butcher’s duties. He gradually increased his hours of work to full-time and again gradually resumed normal butcher’s duties. However, he struggled to perform the duties of a butcher. He experienced recurrent and severe symptoms of pain in his left wrist, hand and fingers. He had difficulty performing butcher’s tasks which I accept require strength, dexterity and a full range of movement of the wrist, hand and fingers. His range of movement was significantly restricted.
15 He continued in employment with the defendant until he resigned in October 2008. He obtained work as a butcher with Fresh Cut Meats at Sorrento where he worked for about eleven months until December 2009. That position involved less hours than his work with the defendant. He was employed on a full-time basis. However, he had certain nominated tasks which he was required to perform and, upon completion of those tasks, he was able to cease work for the day. He regularly completed his tasks well before the end of the working day. He averaged approximately twenty hours’ work per week notwithstanding that he was paid for a thirty-eight hour week. Even with these reduced hours he had difficulty completing the work because of the problems he was experiencing with his left wrist, hand and fingers. He ceased employment with Fresh Cut Meats in about December 2009 when the store closed because of problems with its lease.
16 It remained his intention to continue to try and work as a butcher. It was the only type of employment he had known.
17 He obtained work with Cliffex Pty Ltd, another butcher on the Mornington Peninsula, where he worked for about a month or so. From early December 2009, he worked with Tasman Meats in Rosebud for a period of four to five weeks. He resigned from that employment (in circumstances to which I shall refer below) on about 10 January 2010.
18 Mr Sparrow’s evidence was, and I accept, that his work as a butcher after the incident with the defendant, Fresh Cut Meats, Cliffex and Tasman Meats, was performed with difficulty and inconvenience as a consequence of pain and reduced movement of his left wrist, hand and fingers.
19 In addition, from the first week in January 2010, he suffered from a condition which has been variously described as anxiety or panic attacks, Obsessive Compulsive Disorder, Post-Traumatic Stress and Depression (or perhaps a combination of one or more of these). Mr Sparrow did not seek to argue that that non-organic condition amounted to a serious injury for the purpose of this application.
20 Nevertheless, the non-organic condition referred to does appear to have been relatively significant. He has been treated at a psychiatric hospital, and referred to both a psychiatrist and a psychologist. He has been prescribed antidepressant medication – initially Effexor in increasing doses, and, quite recently, Pristiq. He described the latter as providing him with improvement in his condition.
21 It appears that he resigned from his employment with Tasman Meats on about 10 January 2010 as a consequence both of the difficulties that he was having with his left wrist, hand and fingers and also his anxiety and accompanying panic attacks. He referred to an incident on 3 January 2010 when he suffered numbness in his leg and fainted. This was apparently diagnosed as relating to anxiety. He concedes that the panic attacks on their own would have prevented him from working at least on a full-time basis for much of the period from January 2010 to date. It was put to Mr Sparrow in cross-examination that he had been sacked from Tasman Meats for abusing his supervisor. He denied this. He said, and I accept, that after he resigned, he was engaged in a verbal dispute concerning what wages he was owed.
22 In the early part of 2011, Mr Sparrow registered a business name, “Seaside Mowing”. He obtained an Australian Business Number (an “ABN”) in February 2011. He purchased mowers, clippers, a Whipper Snipper, secateurs, shovel and a saw. He already owned a trailer which was suitable to transport his equipment from client to client. He commenced the mowing business in February/March 2011. He performed the work with the aid of a friend. He advertised in the local newspaper and obtained approximately five customers. He was able to complete some of the tasks involved in the business, but not others. For instance, he could operate his self-propelled mower but not the mower that the operator was required to propel. Although he had obtained clippers, secateurs and saws with the aim of being able to prune branches from trees, in fact, he never was required to perform such tasks. The business was unsuccessful and ceased after a short period.
23 Between the cessation of his work with Tasman Meats in January 2010 and the commencement of his mowing business in February/March 2011, I accept that he performed no work. I accept that this was a result not only of the injury to his left wrist, hand and fingers, but that his anxiety and non-organic condition played a significant role in this. His symptoms from that non-organic condition that included numbness of the leg, fainting, panic attacks, palpitations, racing of his heart and, possibly, depression. In mid 2010, he went on a 21-day trip to Thailand with his girlfriend. His anxiety problems caused him to return home after only ten days.
24 In August 2011, Mr Sparrow applied for a job with Compass Pty Ltd (“Compass”), a company that operated a mine in the Pilbara in Western Australia, where his brother worked as a kitchen-hand. On about 8 September 2011, he flew to Perth for an interview in respect of a similar position to that held by his brother. Having been successful at the interview stage, he then successfully undertook a number of courses and a medical examination, following which he was offered and accepted a position. He was flown to the Pilbara and commenced work on 5 October 2011.
25 His work in the Pilbara was that of a kitchen-hand and cleaner. He washed dishes and cleaned the kitchen area. He did not cook or assist with catering or provision of food. He completed approximately ten 12-hour shifts and then resigned from that employment. His evidence was, and I accept, that he was unable to continue in the job as a consequence of his anxiety and panic attacks. In addition, he had difficulty performing his tasks due to his wrist, hand and finger, in particular operating the buffering machine. An example of his non-organic condition at that time was that he became anxious about flying home from the Pilbara and had to make approximately five attempts before he was able to fly out of the region and return to his parents’ home in Victoria. With regard to his wrist/hand injury, he had been able to cope with much of his work at Compass. There was no lifting of boxes or crates of crockery. However, he was unable to cope with repetitive work with his left hand, wrist and fingers.
26 Since his return from the Pilbara, he has not worked and has been in receipt of Centrelink payments.
27 He considered that his non-organic condition was improving since commencement of the antidepressant Pristiq. His evidence was that, assuming that that condition continued to improve, he would nevertheless be unable to work full time as a butcher as a consequence of the condition of his left wrist, hand and fingers.
Medical Evidence
28 Mr Sparrow tendered medical reports from Peninsula Health (the Frankston Hospital), his treating surgeon, Mr David Ross, and a medico-legal report from a plastic surgeon, Mr Murray Stapleton.
29 He also tendered three reports from surgeons, Mr John Buntine and Mr John Anstee, and a report from an occupational physician, Dr Gary Davison. These three medical practitioners had examined Mr Sparrow at the request of the defendant or the WorkCover claims agent.
30 The various medical opinions proffered by the abovementioned practitioners were largely non-contentious. It is not necessary for me to recite in detail the respective views of those practitioners. Their opinions, which I accept, can be summarised as follows:[5]
[5]Reports of Peninsula Health at PCB 32; Mr David Ross, PCB 34; Mr Murray Stapleton, PCB 37; Mr John Buntine, DCB 3; Dr Gary Davison, DCB 14; and Mr John Anstee, DCB 21.
(a)Mr Sparrow suffered a significant laceration injury to the area of his left wrist involving a partial division of a number of flexor tendons including the superficial flexor tendon to the index and middle fingers and the deep flexor tendons involving the middle, right and little fingers.
(b)In addition, the left ulnar nerve had been lacerated to the extent of approximately 50 per cent of the nerve trunk.
(c)The tendon and nerve divisions had been surgically repaired by Mr Ross and the plaintiff had later undergone treatment from a hand therapist and physiotherapist. His left hand and wrist had been placed in an anti-ulnar clawing splint in an attempt to prevent significant ulnar deformity.
(d)He suffered from loss of muscle bulk and weakness of grip with the left hand and fingers.
(e)In addition, he had a loss of intrinsic muscle function of the left hand consistent with an ulnar nerve lesion.
(f)He has no sensation at all in the little finger, the ring finger and the outer side of the middle finger of the left hand.
(g)There is no likelihood of any improvement. His current disability and restrictions with remain with him permanently.
(h)His ability to manipulate fine objects with his left hand is reduced.
(i)His ability to extend the interphalangeal joints of the fingers of the left hand is impeded, especially that of the ring finger.
(j)As a consequence of the injuries he suffered a reduced capacity for employment and was not able to undertake forceful, sustained or repetitive gripping with his left hand.
(k)Notwithstanding his injuries, he had a capacity for suitable employment with retraining.
31 Mr Anstee had noted what he described as “considerable work staining” on the fingers of Mr Sparrow’s left hand. He did not further identify exactly what he had observed. Notwithstanding that Mr Anstee took various photographs of Mr Sparrow’s hand, he did not include any of the alleged staining. Mr Sparrow agreed that he was engaged in the raising and racing of pigeons as a hobby and I can imagine that his hands might be dirty from time to time with such activities. No other doctor noted any similar observation. At the hearing, I viewed Mr Sparrow’s hands at close range in the presence of both counsel. There was no suggestion of any such staining on the day of the hearing. I attach no weight to Mr Anstee’s observation.
Consequences of the Injury
32 Prior to the incident, the plaintiff was a twenty-two-year old engaged in full-time employment in his chosen occupation. Notwithstanding that he was able to return to work as a butcher for various periods after the incident, I am satisfied that his ability to work in that capacity has been significantly impaired. I accept his evidence that a butcher’s work requires strong, full, free and painless movement of the wrist, hand and fingers.[6] I accept that he does not have those attributes.
[6]PCB 12
33 I accept his evidence that whilst he can do many of the tasks involved in such work, he is unable to do them for extended periods of time without significant pain. I consider that the medical evidence is consistent with this view.
34 It is unlikely, in my opinion, that Mr Sparrow will ever return to full-time work as a butcher. However, it is likely that he will be able to be retrained to embark upon some new career, albeit not one that he would have chosen. I take into account that this is a significant loss or consequence in that he had chosen at an early age to follow his father’s career as a butcher and that it was all he had done up until the time of the incident. He intended to follow that career for the rest of his working life. I note that at the time of the incident, that both he and his father were employed as butchers for the defendant and worked in the same team. His father still works as a butcher although with a different employer.
35 It is unlikely that Mr Sparrow will be able to work in a job involving repetitive bilateral manual work. Given his limited education, the range of jobs open to him will be significantly reduced.
36 Prior to the incident, the plaintiff was a keen and regular player of the guitar. He owned two guitars. Whilst he did not play for any financial reward, I am satisfied that it was a hobby from which he gained considerable enjoyment. As a consequence of his injuries, he is unable to play the guitar in any true sense of that term. He used his left fingers to form the necessary chords. He lacks the strength, range of movement and dexterity to do so since the incident. Whilst he might be able to position his fingers so as to play a particular chord, he is unable to play a tune which requires the regular changing of the position of his fingers so as to change chords or notes.
37 Mr Sparrow previously owned and rode a motor cycle which he has since sold because he was unable to adequately control the clutch with his left hand.
38 His injuries have resulted in an inability to catch a ball with his left hand which would effectively prevent him from playing football or cricket or like sports. Whilst there is no evidence that these activities played any large part in his pre-incident life, they were activities which he was likely to engage in on at least a social basis in future years.
39 His loss of dexterity results in impairment to carry out fine movements with the fingers of his left hand. For instance, he has difficulty buttoning a shirt and for that reason chooses to wear clothing without buttons wherever possible.
40 As a consequence of his sensory loss, he has increased risk of injuring or burning the fingers of his left hand, for instance, by placing them on a hot surface.
41 He has weakness in his fingers and weakness of grip which would, notwithstanding that he is right hand dominant, interfere with many activities.
42 He suffers from pain regularly although not constantly. His symptoms are increased during periods of cold weather and hot weather.
43 His sleep is impaired. He suffers from pain if he rolls onto his left hand during the night.
44 He has been able to continue his hobby of racing pigeons albeit with some adjustments. For example, in order to avoid lifting of crates of pigeons from their coup, he has devised a means of transferring them directly from their coup into a trailor without requiring any lifting.
45 I am satisfied that the impairment or loss of function of Mr Sparrow’s left wrist, hand and fingers has had a profound effect on his lifestyle since the incident. I particularly take into account his young age and the fact that all doctors who have examined him consider that his impairment is permanent. Although there is no particular evidence as to Mr Sparrow’s life expectancy, there is nothing in the evidence to indicate that it would be other than normal. He is likely to experience the symptoms and consequences described for another fifty years or more. The consequences of those impairments insofar as they relate to reduced employment incapacity are likely to extend for another forty years or so.
46 In the circumstances, I am satisfied that the consequences of his injury are more than significant or marked and are, when compared with other cases in the range of possible impairments or losses of a body function, fairly described as being at least very considerable.
47 In addition to the organic injuries to Mr Sparrow’s left wrist hand and fingers, he has also suffered from non-organic injuries relating to anxiety, panic attacks, probable depression and a possible obsessive compulsive disorder. There was no specific evidence before the Court concerning specific diagnosis of his non-organic condition or conditions or as to the extent, if any, of its connection with the injuries suffered in the incident.
48 However, it was clear from Mr Sparrow’s evidence that the consequences of his non-organic condition were of some significance. They appear to have been sufficient to prevent him from working in any capacity for much of the period from January 2010. He has been prescribed antidepressant medication for much of that time, initially Effexor and in recent times, Pristiq. His evidence was that this new medication had improved his condition.
49 In any event, even if it is accepted that Mr Sparrow’s non-organic condition was likely to have prevented him in continuing in full-time employment from January 2010 to date, I do not consider that this is a matter relevant to this application. Counsel for the defendant did not suggest that it was. In Acir v Frosster Pty Ltd,[7] Forrest J accepted a submission by the plaintiff that questions of non-work related supervening events were not to be considered in the course of a s.134AB(38)(f) determination. I acknowledge that that sub-section is concerned with calculation of loss of earning incapacity, whilst this application relates only to an application for leave to claim damages in respect of pain and suffering. Insofar as the pain and suffering consequences of Mr Sparrow’s injuries include his inability to return to his chosen profession, I consider that the principle enunciated in Acir would apply. That is, that even if there is an unrelated supervening event (namely, the contraction of a non-organic anxiety condition), it should be disregarded for the purposes of assessing the pain and suffering consequences of the organic injury in question.
[7][2009] VSC 454
50 In assessing the extent of the pain and suffering consequences of Mr Sparrow’s injuries, I have disregarded his non-organic condition entirely.
Conclusion
51 Accordingly, for the reasons expressed above, I am satisfied that Mr Sparrow has suffered a serious injury, as defined, in the course of his employment with the defendant on or about 9 April 2008.
52 Accordingly, there will be leave pursuant to s.134AB(16)(b) of the Act for Mr Sparrow to bring proceedings for pain and suffering damages in respect of injuries suffered in the incident.
53 I shall hear the parties in respect of legal costs.
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