Spiteri v Canfam Nominees Pty Ltd

[2010] VCC 224

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES - COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-03205

RAYMOND SPITERI	Plaintiff
v
CANFAM NOMINEES PTY LTD	Defendant
(ACN 005 727 551)

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2010
DATE OF JUDGMENT:	23 March 2010
CASE MAY BE CITED AS:	Spiteri v Canfam Nominees Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 0224

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134AB(38)(a) and (b) – left non-dominant thumb – pain and suffering only – relevant principles – unable to perform manual work because of injury.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Chancellor	Richmond & Bennison
For the Defendant	Mr B R McKenzie	Hall & Wilcox
HIS HONOUR:

Introduction

1 By way of Originating Motion filed 13 July 2009, Raymond Spiteri (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for an injury to his left thumb suffered by him on or about 30 May 2005 (“the injury”) arising out of or in the course of his employment with Canfam Nominees Pty Ltd (“the defendant”).

2          The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s.134AB(37) of the Act.

3          The plaintiff was represented by Mr G Chancellor of counsel and the defendant was represented by Mr B R McKenzie of counsel.

4          The application was heard over one day, and the following evidence was adduced:

(a)	The plaintiff gave viva voce evidence and was cross-examined;
(b)	The plaintiff tendered pages 16 to 59 and page 64 of the Plaintiff’s Court Book (“Exhibit A”);
(c)	The defendant tendered the following evidence:

(i)      Pages 1-3 and pages 12-18 of the Defendant’s Court Book (“Exhibit 1”);

(ii)     Page 64 of the Plaintiff’s Court Book – “Summary of Plaintiff’s Income 30 June 2005 to 30 June 2008” (“Exhibit 2”).

Relevant Legal Principles

5          The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act: (see s.134AB(16)(a) of the Act).

6          The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act, which reads:

“serious injury means—

(a) permanent serious impairment or loss of a body function.”

7          The part of the body said to be impaired is the left hand: (see T13 L14-16).

8          In order to succeed, the plaintiff must prove on the balance of probabilities that:

(a)	“the injury” suffered by him arose out of or in the course of his employment with the defendant on or after 20 October 1999: (see s.134AB(1) of the Act and Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622, at paragraph [11]);
(b)	“the injury” and the resultant impairment are “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”: (see Barwon Spinners (op cit), at paragraph [33]);
(c)	the “consequences” of the impairment of the left hand in relation to “pain and suffering” are, “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”: (see s.134AB(38)(a) and (b) of the Act).

The test is sometimes referred to as the “narrative test”.

9          In determining the application, the Court:

(a)	must not take into account psychological or psychiatric consequences of “the injury” which can be taken into account only for the purposes of paragraph (c) of the definition of “serious injury”: (see s.134AB(38)(h) of the Act);
(b)	must make the assessment of “serious injury” at the time the application is heard: (see s.134AB(38)(j) of the Act);
(c)	notes that it has been observed that the question of whether any injury satisfied the definition of “a serious injury” is largely a question of impression and value judgment: (see Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]);
(d)	must give reasons which are extensive and complete as the Court will give on the trial of an action, and in doing so, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application: (see s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]-[92]);

The Issues

10        In his opening comments, counsel for the defendant stated that there was no issue that the plaintiff suffered a compensable left thumb injury which gave rise to impairment and some physical consequences. The “issue” was whether the consequences suffered by the plaintiff in relation to his left thumb- hand impairment were “serious” within the meaning of the narrative test?: (see T10 L3-16).

The Background of the Plaintiff and “the Injury”

11        The Court refers to the affidavit sworn by the plaintiff on 17 February 2009 (at page 16 of Exhibit A, and hereinafter referred to as “the first affidavit”) and on 14 January 2010 (at page 26 of Exhibit A, and hereinafter referred to as “the second affidavit”). The contents of these affidavits were sworn to be “true and correct” by the plaintiff: (see T16 L1).

12        The plaintiff is a forty-seven year old (born 19 March 1962) married man with two adult daughters (one of whom lives at home) and a son born on 18 March 2009. His son was born with club feet.

13        The plaintiff is naturally right-hand dominant.

14        He attended the South Melbourne Technical School to Year 9, after which he has been employed in the following capacities:

(a)	performing a four-year apprenticeship as a greyhound trainer;
(b)	as a slaughterman at an abattoir in Inglewood for about a year;
(c)	as a forklift operator for Keating Freight Lines for a number of years;
(d)	as an assembly line worker at General Motors-Holden’s Ltd at Fishermens Bend;
(e)	as a process worker making shoes at Preston for about five years;
(f)	a service man with Aquamatic Catering Appliances in West Heidelberg for about four years;
(g)	as a pipe labourer with Airport Paving in East Keilor;
(h)	as a storeman with Bargains on Parade in Williamstown;
(i)	on a casual basis as a cleaner on weekends; and
(j)	as a knife hand for SBA Foods in Altona.

15        On 12 August 2002, the plaintiff commenced employment with the defendant as a pipe layer-labourer. I refer to paragraph 8 of the first affidavit where the plaintiff describes his duties as follows:

“In my position as a pipe layer/labourer, I was required to undertake a lot of heavy lifting. I would constantly be getting in and out of trenches that had been dug to lay pipes. I would assist in placing the metal ‘shields’ into the trenches to prevent cave-ins. I would do concreting, construct and dismantle framework, operate grinders and jack hammers and operate a back hoe. All of the duties I was required to perform required the unrestricted use of both hands. I would work 40 hours per week plus overtime when available.”

16        On 30 May 2005, the plaintiff suffered injury to his left thumb as a result of a metal door of a kibel bucket (which is used to move/transfer concrete) slamming shut on his left hand.

17        The plaintiff describes the pain in his left thumb as “excruciating”: (see paragraph 11 of the first affidavit). The plaintiff was conveyed by a workmate to the Northern Hospital in Epping and an x-ray of the left thumb of the same date reported:

“A comminuted fracture is noted through the proximal phalanx of the thumb. Resultant dorsal angulation of the bony fragment distal to the fracture is noted. A non-displaced oblique fracture is also demonstrated through the distal phalanx. Fracture lines appear to extend into the articular surface of the respective bones.”

[my emphasis]

18        The left hand/thumb of the plaintiff was splinted and he was prescribed painkilling medication, before returning home to allow the swelling to subside.

19        The plaintiff has undergone the following surgical procedures:

(a)	On 2 June 2005, he was admitted to the Northern Hospital under the care of the plastic surgeon, Dr M Baldwin, who manipulated the fracture under general anaesthesia with four K-wires inserted. The K-wires were held in place with an external fixateur. The plaintiff was discharged from the Northern Hospital on 3 June 2005 and reviewed at the Hand Clinic of the Hospital on 9 June 2005 and 16 June 2005.
(b)	The plaintiff underwent a further x-ray of the left hand on 30 June 2005 and was re-admitted to the Northern Hospital on 25 July 2005, at which time Mr Baldwin removed the K-wires under general anaesthesia. The plaintiff was discharged from the Northern Hospital on 26 July 2005, on which day a further x-ray was undertaken of his left hand which was equivocal as to whether the fracture was healing.
(c)	On 5 August 2005, a further x-ray of the left hand was undertaken at the Outpatient Department of the Northern Hospital, which disclosed that the fracture had not healed. On 11 August 2005, the plaintiff was re- admitted to the Northern Hospital and underwent further surgery under general anaesthesia which involved debridement and an osteotomy of the bone fragments which were saved for a grafting process involving a six-hole T-plate with five screws to fix the fracture. The plaintiff was discharged on 12 August 2005.

The plaintiff attended the Outpatient Department on various occasions and underwent various x-rays of his left thumb and hand.

(d)	On 31 May 2007, the plaintiff was re-admitted to the Northern Hospital where Mr Baldwin performed further surgery under general anaesthesia, removing the plate and screws from the left thumb. On reviews on 24 July 2007 and 23 October 2007, the plaintiff continued to experience symptoms of pain, tenderness and difficulty in using the left thumb.
(e)	On 14 November 2007, the plaintiff was admitted to the John Fawkner Private Hospital where Mr Baldwin performed surgery to “fuse” the joint in the left thumb and to repair a tendon. At that stage K-wires were again inserted.
(f)	On 6 February 2008, the plaintiff was re-admitted to the John Fawkner Private Hospital where Mr Baldwin removed the K-wires.

20        In a report dated 23 March 2008, Mr Baldwin states, in part:

“a.	Diagnosis of the injury sustained on 30 May 2005 was a compound fracture of the proximal phalanx of the left thumb.
b.	Nature of treatment provided to date.

Ray had a number of operations performed by myself, initially at the
Northern Hospital and later in the private system.

Essentially he had a severe injury, that despite my best efforts to get healed, resulted in a non-union of the fracture, extensor tendon adhesions, traumatic osteo-arthritis of the IPJ and chronic pain.

We eventually healed the fracture following bone grafting with internal fixation.

He subsequently required an arthrodesis of the interphalangeal joint to treat his post traumatic arthritis.

c. No ongoing medical treatment is required. He may, however,

require further episodes of treatment in the future, such as surgery to his
metacarpo-phalangeal joint, specifically fusion or replacement.

d. The injury itself has stabilised. The sequelae of the injury,

specifically arthritis in the metacarpophalangeal joint, may continue to worsen. Function of his thumb, now that his interphalangeal joint is arthrodesed, should hopefully improve.

e. Yes, the injury to Ray’s left hand will stop him from working as a

labourer. He will lack the necessary grip strength I would expect.

f. Prognosis is as outlined above. Ray’s hand function may get

better, it may get worse, more surgery might be required , or it might not. Ray is a motivated, hard worker, and I would guess that he will get on with whatever work he is capable of.”

[my emphasis]

(see pages 42-43 of Exhibit A).

The Consequences

21        After the surgery on 5 August 2005, the plaintiff returned to work with the defendant on light duties with his left arm encased in a splint that covered the thumb and went up the arm to just below the elbow. The duties performed by the plaintiff were extremely limited as he could not perform jack hammer work, use a shovel or pick to dig or manually remove rocks from the trenches and generally could not lay pipes. His tasks –

“were limited to holding a measuring stick to check the depth of a trench,

and occasionally gather tools for use by other employees.”

(see paragraph 15 of the first affidavit).

22        On 9 June 2006, the plaintiff’s employment with the defendant was terminated. He was particularly concerned about his “ability to obtain further employment due to the injury to his left hand and thumb”: (see paragraphs 16 and 18 of the first affidavit).

23        In December 2006, the brother of the plaintiff, who was employed at Simms Metals, assisted the plaintiff in obtaining full-time employment with Simms Metals at Brooklyn. During the initial twelve months of employment with Simms Metals, the plaintiff worked on a full-time casual basis. Initially, he worked as a belt picker which required him to remove selected metals and materials off a conveyor belt. The plaintiff found this particular duty very difficult as it required the use of both hands in a constant manner. After about three months, he explained to his foreman that he was having considerable difficulties coping with his duties and he was transferred to the position of “traffic co-ordinator and inspector”. I refer to paragraph 19 of the first affidavit where he describes the duties involved as:

“… I am required to stand all day and direct traffic going into and out of the Simms Metal site. I direct the trucks where they are to tip their load. I inspect the loads on trucks to ensure that they are not carrying any hazardous materials. Any hazardous materials are removed by crane under my direction.”

24        The plaintiff asserts that although his present employer, Simms Metals, has been very “understanding and sympathetic”, he:

(a)	finds the role of traffic co-ordinator and inspector “boring and unchallenging”: (see paragraph 25 of the first affidavit); and
(b)	he is concerned that if he lost such job he would have great difficulty finding a job given the type of work he has performed in the past: (see paragraphs 24 and 25 of the first affidavit).

25        In particular, the plaintiff complains of the following:

(a)	He is unable to drive a manual vehicle due to the pain he experiences when changing gears: (see paragraph 26 of first affidavit);
(b)	The injury now prevents him from performing activities such as mowing the lawns, gardening and repairs or maintenance on the home: (see paragraph 26 of first affidavit);
(c)	On some occasions he has had to pay tradesmen to perform tasks that he would have performed if he had remained uninjured: (see paragraph 26 of first affidavit);
(d)	He no longer plays a guitar or participates in kicking a football because of the possibility of injury to his left thumb: (see paragraph 26 of first affidavit);
(e)	He no longer goes fishing as it is difficult to place the hook on the line and to hold the fishing rod: (see paragraph 26 of first affidavit);
(f)	He finds it very difficult to put on socks and shoes and to do his shoelaces up. He cannot do up the buttons on jeans and shirts, and shaving and personal hygiene is now more difficult to perform and takes longer: (see paragraph 28 of first affidavit);

26        In his second affidavit, the plaintiff deposes as to the following ongoing consequences:

(a)	He finds his work as a traffic co-ordinator and inspector “boring and not at all satisfying” and is “somewhat depressed by my job because prior to my injury I liked being a labourer and enjoyed being hands-on”: (see paragraph 2 of second affidavit);
(b)	He continues to have “constant pain in my left thumb but varying in severity” and the pain is “aggravated” by any activity which requires gripping or pinching with the hand and thumb: (see paragraph 3 of second affidavit);
(c)	Vibrating machinery, such as lawn mowers, aggravate the pain, although he attempts to mow the lawn on occasion: (see paragraph 3 of second affidavit);
(d)	His pain is worse in the colder weather and he generally wears a thermal glove in the winter: (see paragraph 3 of second affidavit);
(e)	His thumb is tender if it is bumped or knocked and it is also stiff which causes difficulty with normal activities such as shoe laces, zippers or holding eating utensils: (see paragraph 3 of second affidavit);
(f)	In relation to treatment, he deposes:

“I take Nurofen or Panadol pain killing tablets when required. Occasionally I will take an anti-inflammatory tablet. I do hand exercises every second day, assisted by using a digiflex, ball and putty.”

(see paragraph 3 of the second affidavit).

(g)	When holding his newborn son, he is wary of the orthotics worn by his son coming into contact with his left hand and thumb: (see paragraph 5 of second affidavit);
(h)	Although he has still gone camping with family and friends, he needs help to set up the tent and knock in tent pegs. He can hold a cricket bat but it jars a lot, and he has to be very careful not to lock his left thumb when engaged with family activities: (see paragraph 6 of second affidavit);

(i)      At the time of his injury he was taking guitar lessons but because of difficulties with his left thumb, he has now sold both guitars: (see paragraph 6 of second affidavit);

(j) The plaintiff also notices that his left thumb is a different colour. Sometimes it is redder, particularly in warm weather, and sometimes it becomes purple, particularly in cold weather. He also notes that at times he has pins and needles in his thumb: (see paragraph 7 of second affidavit).

Cross-Examination of the Plaintiff

27        The plaintiff was cross-examined and gave the following pertinent evidence:

(a)	On various occasions, the plaintiff can work up to twelve to fourteen hours per day, six days per week, particularly when the “shipping” is on: (see T17 L9-31);
(b)	The payslip for the week ended 16 February 2010 from Simms Metals shows him earning $43,000 to date in this financial year, which he accepted was a “far better income than you had ever achieved working with Canfam”: (see T19 L12-21);
(c)	The present job is “less wear and tear but it is not a job that I am happy to be in”: (see T19 L29-30);

When asked why he did not leave the job if he was not happy, the plaintiff stated:

“Well, because I can’t really do any labouring work, working – like going back on doing pipe laying or things like that, that I enjoyed working as. I used to enjoy work with my – doing hands – on stuff, using my hands, using my mind, using – coming home feeling you did a full day’s hard work pipe laying and things like that. Here there’s days I was …. “

(see T20 L17-23)

(d)	The plaintiff has remained “socially active”: (see T24 L27);
(e)	That he has not seen Dr Baldwin since around February 2008 after the completion of the surgical procedures: (see T28 L23-25, T29 L10-12);
(f)	He has not seen his general practitioner, Dr Kyriacopoulos “much at all” in relation to his left thumb and may have only seen him once in 2009: (see T30 L22-26);
(g)	In relation to medication, the plaintiff was asked the following questions:

“Q:	Okay, in terms of whatever medication you are taking, you said in your affidavit that you take Nurofen when required or Panadol when required?---
A:	That’s correct.
Q:	And occasionally you take an anti-inflammatory tablet?---
A:	I don’t no more but at the start I was, yes. Anti – I’m taking Nurofen and Panadol still.

HIS HONOUR:

Q:	You are taking Nurofen and Panadol now, are you?---
A:	Yes. Well if I knock it, your Honour, and I get the throbbing and the soreness, well that’s what I’ll take.
Q:	Can you give any indication to the Court, say the last three months – this year, perhaps – can you give any indication to the Court how often you take Nurofen and/or Panadol?---
A:	Well – well, for example, a week ago when I hit my thumb on the steering.
Q:	Is this with the ute, is it?---
A:	Yes, when I ….
Q:	Yes?---
A:	Yes, when I try to drive the ute home I knock them then, I took about four then. There’s times during the week I get throbbing by just using my hand or grabbing Daniel or something like that, maybe twice, once a week.
Q:	May be?---
A:	Once, twice a week.
Q:	And when that once or twice – I know it’s difficult and only tell me if you can answer this, can you say how many tablets you take then: one tablet, two tablets?---
A:	Most of the time it’s two tablets and if it don’t work after the hour or so I’ll go and take another two and with Nurofen you’re pretty guaranteed they’re going to start working. I believe being on these things, your system builds up to it, so the more tablets you take well …
Q:	And these tablets …---?
A:	The pain stops.
Q:	Talking about tablets you buy from a chemist, is that right?---
A:	That’s right, yes because they seem to help.
…

MR McKENZIE:

Q: Mr Spiteri, when you have been asked about your medication, at other times you said that you have taken no medication. Could that be the case?---

HIS HONOUR:

 Q:  Where it that, where are you referring to?---

MR McKENZIE:

A:	Certainly, Your Honour.
A:	When Mr Stapleton, on 6 June 2008 (Court Book page 47) he asked you about medical history: ‘He takes no medication’ could that be the case, at times you don’t take any medication at all?---
A:	Well, if I’m not sore and that, yes I don’t take no medication ‘cos there’s no need to take the medication.

Q: On 30 September 2009, you saw Mr Ireland for your solicitors. This is at Court Book page 52 your Honour, under ‘direct question’, last paragraph, your Honour at the middle.

Again, when you saw Mr Ireland in September last year, he asked you and you told him that you take no medication so?- --

A:	Meaning probably no Panadeine Forte or something really too heavy.
Q:	Is it the case that you can go for weeks at a time without taking any medication?---

A: I wouldn’t say weeks, no, no, because look there’s something that I’ll do at home, I’ll hurt my thumb, I’ll just go for it, take the Panadeine because I know that’s the only thing that I can, the relief from the soreness or pain or throbbing.”

HIS HONOUR:

Q:	Can I just ask you this. What is being put to you is that two doctors have got a history that you take no medication, you have told the Court now this morning that as best as you can say, once-twice a week you might take one or two tablets?---
A:	When I’m in pain, yes.
Q:	Those tablets being Panadol or Nurofen. When you have told the two doctors who you have been referred to you take no medication, what did you mean by that?---
A:	Well to me it just come like probably on the heavier tablets like the Panadeine Forte like that, I probably should have said I am still taking Nurofen and Panadol because I can see where it’s …
Q:	From what you have told me, am I right in assuming that in terms of Panadeine Forte or anything you have to get through a doctor’s prescription, the last time that would have occurred was back shortly after the surgery, either after the fusion or when the K-wires were taken out?---
A:	Yes Your Honour.
Q:	I also want to ask you this: Leaving aside the tablets, put that aside one minute, you have talked about when you knock your thumb like when you were driving the ute, that gives rise to bad pain and you have to take some tablets?---
A:	Yes.
Q:	In a normal day when you wake up in the morning to when you go to bed at night, do you have some pain and, if so, how often? Can you give me some idea of what the situation is there?---
A:	No I don’t have the pain or the time, your Honour, it’s only if I knock it or try to use it, try to do something.
Q:	Like, I now this is always difficult, Mr Spiteri, and only answer this if you can?—
A:	Yes.
Q:	But can you give some indication to the Court, when you say you don’t have pain all the time, are you talking about you don’t have pain for a couple of hours or it could be a number of days or it could be a number of weeks?---
A:	It could be a number of days.
Q:	And when you talk about pain, is it the pain when you either inadvertently use your left hand or indeed you knock it or something like that?---
A:	Yes.”

(See generally T32-35);

(h) Prior to the injury, the plaintiff had been learning to play a guitar for about six or seven months (see T37 L20-24) and has since sold his guitars because he had difficulty playing the guitar – in particular, he became frustrated because after half an hour or forty minutes of using his left hand on the stem of the guitar it became sore: (see T36 L14-23).

(i)      The plaintiff can drive an automatic car without any difficulty and he has gone camping with his brothers and some friends from work. He has not renewed his shooting licence because he had difficulty with a shotgun and although he did not fish much before his injury, he is “put off” fishing now because of the difficulty tying the hooks for the line, grabbing worms, putting on bait and things like that: (see T39 L1-14);

(j)	The plaintiff still does some mowing but not as often and either gets his brother or sometimes Jim’s Mowing to perform that activity which he finds difficult given the vibrations of the motor and going over potholes: (see T41 L12-19);
(k)	He has difficulty painting now because he cannot alternate hands: (see T43 L17 – T44 L16);

28        In re-examination, the plaintiff gave evidence that he has no difficulty using a whipper-snipper as the motor does not cause vibration: (see T47 L23-26).

29        At the request of counsel for the plaintiff, I was requested to inspect the left thumb of the plaintiff. Although I expressed some doubts as to the probative value of me inspecting the thumb and hand, I acceded to such request. The plaintiff demonstrated that he was unable to bend his thumb at the distal joint; the left thumb was clearly shorter than the right thumb; there appeared to be less muscle bulk around the left thumb and the left hand was not work-stained as compared to the right.

Medico-Legal Reports

30        The solicitors for the plaintiff rely on the following medico-legal examinations:

(a)	The plastic and hand surgeon, Mr Murray J Stapleton, on 6 June 2008;
(b)	The hand surgeon, Mr Damian Ireland, on 13 August 2009; and
(c)	The consultant physician in vascular diseases, Dr Peter Blombery, on 19 November 2009.

31        Mr Stapleton accepts that the left hand is impaired because of the injury to the left thumb. He noted on examination that the dorsum of the left thumb from the interphalangeal joint to the thumb nail had a shiny appearance and is slightly swollen. The balance of his examination was largely to do with any impairment under the AMA Guides, which is not helpful to the determination of a serious injury application, save to say that he was satisfied that the injury had given rise to permanent impairment.

32        In a report dated 1 October 2009, Mr Ireland diagnosed the condition to be “limited thumb function in left non-dominant hand following fracture and multiple surgical procedures to the thumb” and also the possibility that the plaintiff may suffer from “an atypical type of Complex Regional Pain Syndrome”.

In particular, Mr Ireland states, in part:

“... I agree that this man is incapable of employment in a manual

capacity.

On direct questioning, Mr Spiteri stated that he had difficulty with many of the normal activities of daily living including tying shoe laces, doing up zippers, holding his fork for eating, working on his motor car and gardening.

. . .
The prognosis is poor.”
(my emphasis)
(see page 54 of Exhibit A).

33        In a report dated 19 November 2009, Dr Blombery states, in part:

“He now has a relatively useless left thumb, which is painful with excessive use. As well as pain, he notes changes in colour of the hand and during my examination, I observed changes in temperature and colour of the thumb. This combination of features of ongoing pain, together with autonomic disturbance, is diagnostic of complex regional pain syndrome type I or as it used to be known, reflex sympathetic dystrophy.

. . .

It is my opinion that he would be able to a job which did not involve significant use of the left arm. It is my opinion that he would not be able to do his previous job as a labourer and pipe layer now or in the future.”

[my emphasis]
(see page 58 of Exhibit A).

34        The defendant arranged for the plaintiff to be medico-legally examined by the plastic and reconstructive surgeon, Mr John Anstee, on 9 June 2009. In a report dated 26 June 2009, Mr Anstee states, in part:

“Mr Spiteri is not able to carry out a labouring job. I believe that this is a permanent state of affairs. He says that he manages his job as a traffic controller at Simms Metal and I have no reason to doubt that. As stated above, I believe that heavy labouring or indeed any labouring work would not be possible for Mr Spiteri.

…

I believe his condition has stabilised. The present condition is:

•	The range of movement of the interphalangeal joint of the left thumb is nil being ankylosed in 25o of flexion.
•	The range of movement of the metacarpophalangeal joint is reduced with a 10o range of movement between 20 o and 30o of extension.
•	Radial abduction of the thumb is limited to 20o.
•	Adduction is abnormal at 3 cm and opposition abnormal at 5 cm.
•	X-rays demonstrate a fused interphalangeal joint with two K-wires in situ. I believe that this is a permanent loss of function of the left thumb.
. . .

Mr Spiteri’s prognosis, as far as left thumb function is concerned, is fair only. I doubt that there will be any improvement with the passage of time. While it is possible he may develop arthritic changes in the metacarpophalangeal joint of the left thumb to a more severe degree, or at an earlier age than would have otherwise been the case, is debatable. The present situation could, I believe, be regarded as permanent.”

[my emphasis]

(see page 14 of Exhibit 1).

Analysis of the Evidence

35        I find the plaintiff to be a witness of truth and indeed, on occasion, made admissions against his own interests which cause me to have greater confidence in accepting his evidence in relation to pain, limitations and work capacity. In particular, I am satisfied that the prima facie discrepancy in the affidavit as to him taking some medication compared to some histories obtained by doctors that he took no medication is well explained by his evidence.

36        I am satisfied that the plaintiff suffered a compensable left thumb injury arising out of or in the course of his employment on 30 May 2005. Furthermore, I am satisfied that such injury has resulted in some permanent impairment of the left thumb/left hand giving rise to physical consequences. So much is not disputed by the defendant.

37        In determining whether such “consequences” are “serious” within the meaning of s.134AB of the Act in circumstances where a plaintiff has returned to alternative work, I am assisted by two recent Court of Appeal decisions of Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, delivered on 14 August 2009, and Sabo v George Weston Foods (supra), delivered on 23 October 2009. In particular, I refer to the following matters:

(a)  The dicta of Ashley JA and Beach AJA in Stijepic, wherein they state:

“… The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”

(see paragraphs [40]-[42].

(b) In Stijepic (op.cit) Ashley JA and Beech AJA refer to (op.cit) Ashley JA and Beach AJA refer to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, wherein, at paragraph [27], it is stated:

“…the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained. …”

(c) I also refer to the dicta of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, at paragraph [24], whereat his Honour stated:

“… If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable’. …”

Ashley JA and Beach AJA commented (in Stijepic), in relation to these
words:

“The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered. In this case, the appellant’s resumption of educational and employment activities, and his employment prospects, have played but a small part in our conclusion that the pain and suffering consequences of his compensable injury do not satisfy the statutory test.”

38        The plaintiff suffered a compound fracture of the proximal phalanx of the left thumb which ultimately required arthrodesis of the interphalangeal joint. As the doctors have observed, and indeed as I observed on casual observation, the plaintiff has quite restricted movement of the left thumb which, of course, impacts on the use of the left hand. Furthermore, I accept that the plaintiff suffers severe pain in the left thumb area when the thumb is struck or knocked.

39        On balance, I consider it likely that the plaintiff has suffered and continues to suffer some type of Complex Regional Pain Syndrome as suggested by Mr Ireland and the expert, Dr Blombery. Such a condition may well explain the coldness experienced by the plaintiff and almost certainly, the colour changes of the skin on the thumb. However, it is to be stressed that it is the consequences of the impairment which must be assessed for the purposes of the narrative test and I doubt that the diagnosis of Complex Regional Pain Syndrome adds much to the physical consequences suffered by the plaintiff.

40        I accept that as a result of the restriction of the left thumb (and thus the left hand) and the associated pain when the left thumb is struck, the plaintiff would have difficulties with driving a manual car, fine movements involving the left hand (such as doing up buttons and zippers) and performing activities with the left hand where there is any degree of vibration (for example, using a motor mower or indeed even using a cricket bat);

41        However, the impression that I obtained of the plaintiff was of a man who continues to be reasonably active and continues to be involved in a range of social, recreational and household activities albeit, depending on the activity, at a slower rate and in circumstances where he tends to “protect” the left thumb.

42        The plaintiff does not experience pain in the thumb all the time, and on his estimate, could be pain-free for a “number of days” until such time that he again knocks the thumb or inadvertently overuses his left hand. He receives no active treatment from his general practitioner or his treating surgeon, Mr Baldwin. Furthermore, medication is limited to Panadol and Nurofen which he may take up to once or twice a week, generally two tablets at a time, again depending on whether he knocks the thumb.

43        The plaintiff has resumed alternative employment and most probably is earning more now than he would have been with the defendant (see Exhibit 2). On occasion he does large amounts of overtime as required by Simms Metals. The plaintiff is coping with such alternative employment – albeit, on the basis that such work is inspection work with little or no involvement of the left hand.

44        Consistent with the evidence of the plaintiff, all doctors are of the view that the plaintiff is now permanently unable to resume manual work or indeed any labouring work involving the use of his left hand. I refer to the employment history of the plaintiff set out in paragraph 14 of these Reasons. The plaintiff obtained his present job through his brother, who was working with Simms Metals at the time of his application, and it has only been as a result of a sympathetic employer that he has been able to move to the inspection work at Simms Metals. Perhaps understandably, the plaintiff finds such work somewhat boring and unchallenging given his past work experiences.

45        I find that the left hand impairment of the plaintiff prevents him resuming manual work involving both hands and most forms of labouring work. I am persuaded that such a consequence is one which “may be fairly described as being more than significant or marked, and as being at least very considerable”. I so find for the following reasons:

(a)	The plaintiff is a forty-eight year old married man with limited education and no formal training (save for the greyhound apprenticeship);
(b)	His industrial experience has been in work involving the use of both hands;
(c)	My impression of the plaintiff was of a man who enjoyed and took pride in being actively involved in physically demanding work;
(d)	As a result of the left thumb injury and resultant left-hand impairment, he has been forced to a very small corner of the labour market and only perhaps through the good fortune of his brother was he able to get his present employment. He is understandably concerned as to his future employment prospects if he lost his present employment;
(e)	At the age of forty-eight he still has a number of years left of his working life, and perhaps this is made more critical by the birth of his third child on 18 March 2009.

46        For completeness, I am of the opinion that the day-to-day consequences described by the plaintiff (leaving aside any employment aspect) involving the use of his non-dominant left arm, may well be described as “marked” or “significant” but I doubt, they alone satisfy the narrative test.

Conclusion

47        Accordingly, I am persuaded that the plaintiff has satisfied the narrative test, in that a consequence of his left hand impairment is the inability to engage in manual physical work involving the use of the left hand.

48 Accordingly, pursuant to s.134AB(16)(b) of the Act, I grant leave to the plaintiff to bring common law proceedings in respect of pain and suffering damages for the left thumb injury suffered by him in the course of his employment on or about 30 May 2005.

49        I will hear the parties on the question of costs.

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