Thomas v Dahlsens Building Centres Pty Ltd
[2010] VCC 1306
•6 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04489
| JASON PATRICK THOMAS | Plaintiff |
| v | |
| DAHLSENS BUILDING CENTRES PTY LTD | First Defendant |
| and | |
| CGU WORKER’S COMPENSATION | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 August 2010 |
| DATE OF JUDGMENT: | 6 September 2010 |
| CASE MAY BE CITED AS: | Thomas v Dahlsens Building Centres Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1306 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the right middle and index fingers – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Keely | Stringer Clark |
| For the Defendants | Mr R H Stanley | Lander & Rogers |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 23 December 2006 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 Further, this application is also brought in relation to permanent serious disfigurement pursuant to clause (b).
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked.”
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 in determining this application.
11 The plaintiff relied upon three affidavits and he was cross-examined. Mr Csongvay, hand surgeon, was required to attend for cross-examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
12 The plaintiff is aged thirty two, having been born on 17 March 1978.
13 The plaintiff completed Year 12. Thereafter he completed a pre apprenticeship course at Frankston TAFE. He then worked as a car mechanic, in panel beating and security for seven and a half years, and as a casual labourer at Laharen Bulk Handling near Horsham.
14 The plaintiff had problems in the past with depression when he was working as a bouncer in Melbourne. He had counselling for anger management in 2002, which was successful, and he was discharged from his doctor’s care.
15 The plaintiff commenced work with the first defendant in September 2006, initially in a casual capacity and he was then made full time permanent in December 2006. He was paid $600 per week.
16 At that time the plaintiff was also working ten hours per week as a bottle shop attendant at Liquorland in Horsham, earning about $200 per week. He was also periodically doing security work.
17 Whilst working in the first defendant’s timer yard on the said date, the plaintiff suffered injury to his right hand when his right index and middle fingers were caught in a saw (“the incident”).
18 After the incident, the plaintiff was taken to Wimmera Base Hospital. As that hospital did not have the expertise to deal with the plaintiff’s injury, he was taken to the Geelong Hospital by his wife.
19 The plaintiff underwent surgery and stayed in hospital overnight. The following day he was discharged, his hand was immobilised in a plaster of Paris, and he was prescribed Endone and anti-inflammatory medication.
20 The plaintiff was reviewed in the outpatients at Geelong Hospital on 2 January 2007 and he was then discharged to his general practitioner to attend to his dressings.
21 Over the following weeks, despite rehabilitation at the Wimmera Base Hospital, the plaintiff continued to have problems with severe pain, temperature variations, swelling, sleeping problems and a reduced range of movement in his right hand.
22 The plaintiff had about three and a half months off work. He then returned to the first defendant’s employ doing customer service and answering the phone. After a while he was transferred to forklift driving duties.
23 The plaintiff found some of that work was impossible to perform but he kept trying. Other workers gave him a hard time, telling him that he “wasn’t putting in” and he “should be cutting timber”.
24 Despite this situation, the plaintiff continued working. He tried to learn to operate the levers on the crane on the outside of the truck he was required to drive. This activity caused an aggravation of his hand pain which was, at times, excruciating. His hand was swollen and the colour changed from time to time, as did the temperature of his hand.
25 The plaintiff had a break from the job at Liquorland for some time after the incident before he resumed working eleven hours per week
26 Before the incident, at work the plaintiff was able to carry two or three slabs of beer at a time but after his injury he could only carry single slabs in his left hand using his right arm to stabilise them. He found it very difficult lifting cartons and could only use his right hand just to balance things.
27 The plaintiff had to look down all the time to see his right forefinger was in the correct position as he had no feeling in it. He thought, while he was doing that work, he would be better off without his finger.
28 The plaintiff was referred to a pain management clinic in Geelong where he was treated with various medications and he also underwent a stellate ganglion block.
29 As none of this treatment helped, the plaintiff’s general practitioner, at the plaintiff’s request, referred him to an orthopaedic surgeon, Mr Csongvay, in Ballarat.
30 Originally Mr Csongvay thought the skin graft on the plaintiff’s right middle finger was successful but the right index finger was irritable and over sensitive. He thought the plaintiff, in addition to the damage to the extensor tendon, had also damaged the joint of the index finger.
31 Mr Csongvay referred the plaintiff to an anaesthetist, Dr Shorney, for pain management. Dr Shorney advised the plaintiff to continue using a TENS machine and take painkilling and anti-inflammatory medication. The plaintiff continued with this program. He used a compression glove and underwent extensive hand therapy.
32 As of July 2007, the plaintiff’s general practitioner considered it may still be necessary to amputate the plaintiff’s index finger. At that time the plaintiff’s finger, despite extensive treatment, was still very stiff. He was virtually one- handed in most manual activities. His finger was alright when he was not using it but with almost any activity he suffered pain.
33 The plaintiff returned to Mr Csongvay on 25 September 2007. On 9 November 2007, he operated on the plaintiff’s right index finger. The plaintiff understood this operation involved the removal of a nerve from that finger (“the nerve operation”).
34 Following the nerve operation, the plaintiff found he could not do his work. He could not lift timber products or load merchandise onto the trucks and it was impossible for him to tie the ropes on the trucks.
35 The plaintiff was then in continual pain, finding even the most menial tasks difficult. It was impossible to do any work duties, except for extremely light duties such as picking up a phone. When the plaintiff felt he just could not go on and he had had enough of work, he left the first defendant’s employ in April 2008.
36 After his injury, the plaintiff hated going to work with the first defendant and his wife’s increase in work hours meant he could resign. Had the plaintiff not injured his fingers, he would have continued working the part time hours at Liquorland and he had been asked to work full time by the first defendant.
37 The plaintiff kept working at Liquorland until shortly before he and his wife moved to Hastings in about March 2009. He was able to continue doing that work because his co workers knew about his limitations and generally helped him.
38 But for his injury, the plaintiff did not think he and his family would have moved from Horsham in March 2009. However, since the incident, the plaintiff’s wife had become the main breadwinner as a result of the plaintiff’s inability to work full time. She considered there were better opportunities for her to work in the Hastings area as a Division 2 nurse. Further, they wanted to be closer to their parents.
Post incident employment
39 About two months after moving to Hastings the plaintiff started casual work with the Mornington Shire Council. His job presently involves driving an 11 and 18-seater bus taking elderly people out on shopping trips. He obtained an endorsed licence to drive the larger vehicle when he started working with the Shire Council.
40 The plaintiff presently works about 27 hours a fortnight. The job involves no heavy lifting. The elderly passengers are required to carry their own shopping and, in any event, they only have the odd bag of shopping which the plaintiff may help them with using his left hand. The plaintiff is not required to get the elderly passengers on and off the bus, save for using the wheelchair ramp.
41 In recent weeks, the plaintiff has become hopeful of obtaining increased work of about another 8 to 12 hours per fortnight similar work, transporting elderly people to shopping trips, and also to excursions to places in Melbourne such as the Victoria Market.
42 In cross-examination, the plaintiff agreed it was a good job helping out old people and he enjoyed it, being outside, being outdoors and doing something for the elderly. He described the job as very light.
43 Since the incident, the plaintiff does not believe he would be capable of performing any employment involving heavy lifting or manual lifting, forceful use of the right hand, a strong or repetitive grip with his right hand, significant jarring or vibration of the right hand, fine manipulative tasks or a significant amount of handwriting. Also, the plaintiff would not be able to do the typing required to use a computer.
Hobbies and Activities
44 Since the incident, the plaintiff has become very protective of his index finger, especially when he is with his children, who are now aged seven, five and two.
45 The plaintiff continues to struggle with daily activities which require the use of his dominant right hand, such as doing up buttons, tying up shoe laces, writing and cutting food with a knife. He saws at meat rather than cutting it. He used his left hand a lot more than he did before the incident
46 The plaintiff’s handwriting is distinctly worse than it was before the said date and he tended to leave it to his wife to fill in household paperwork.
47 Prior to the incident, the two family cars were largely maintained by the plaintiff and he used to undertake substantial mechanical jobs himself. Today the plaintiff at times attempts odd small jobs on the car and he has not attempted any heavy or even substantial jobs.
48 From the age of four the plaintiff had been interested in motorbikes. He initially owned a small dirt bike and over the years gradually progressed to road bikes.
49 The plaintiff enjoyed motorbikes and they were part of his life and he used to go for day-long rides in the bush prior to suffering injury. The plaintiff’s social life, apart from family commitments, revolved around other motorbike riders and enthusiasts.
50 Before the incident, the plaintiff would ride his bike flat out all the time, it was not a problem. He could ride for hours. He did a lot of bush riding for three or four hours. He go out and fill up his tank, ride for hours then have a break and fill up again. He could spend the whole day riding, “not a problem”. His wife also has an interest in motorbikes since they have got together.
51 Before the incident, the plaintiff enjoyed doing mechanical work on motorbikes and cars, at first as a recreation in his spare time, working on his own bike and his wife’s bike, and secondly, to supplement his income
52 Since the incident, the plaintiff’s wife has tended to do the small jobs on her bike and the plaintiff’s bike is sent to the repair shop for anything other than the most minor jobs.
53 The plaintiff has not ridden his Yamaha 600 sports bike for the last eight months, having only ridden it once prior to the most recent surgery. He has not ridden for that time because the first fusion was unstable and he wanted to see how the second operation went.
54 The plaintiff has difficulty riding because he needs to use his right hand on the accelerator and brake. When he last rode he could only ride for about forty five minutes before his right hand, which operated both the front brake and accelerator, was too uncomfortable to continue.
55 When the plaintiff grips the bike with his right hand he gets pins and needles down the side of the palm because his right hand will not sit exactly on the accelerator the way it should and he cannot grip around it. He knows his limitations; he gets off the bike, manipulates the hand and then gets going again.
56 About eight months ago the plaintiff had a dangerous experience when he lost the grip with his right hand whilst carrying his brother-in-law as a pillion passenger. His right hand totally let go. He then had to stop at half hour intervals to enable him to manipulate his hand for five minutes to keep going. This incident “threw his confidence around a lot”.
57 Whilst the plaintiff had ridden to Phillip Island from Hastings prior to the fifth surgery, he took a number of brakes.
58 The plaintiff is hopeful to get back to bike riding. If he got a medical clearance, he would not question the doctor but he would question himself, whether he was ready and able to control the bike, and he is looking at doing that at the moment. At this stage, he is leaning towards trying to get back on the bike but he is not in a rush to get back on it.
59 The plaintiff has, as a result of inactivity, put on quite a lot of weight since the incident.
60 The plaintiff gets very frustrated and angry about his injury probably about two or three times a week. At those times he tends to withdraw and not speak to anyone perhaps for a couple of hours or the whole day. He prefers to do things by himself and does not find it easy to accept help from others. This situation has placed a strain on his family relationship.
Treatment
61 As the plaintiff had a lot of shooting pain in the right index finger sometimes extending into the forearm, on 9 February 2010, Mr Csongvay performed a further operation on the plaintiff’s right hand.
62 Mr Csongvay explained that at the surgery he fused the middle joint of the plaintiff’s right index finger by inserting a screw into the joint. That fusion was in a partially bent position which meant the plaintiff will never be able to straighten his finger again (“the first fusion”).
63 The plaintiff had three weeks off work following the first fusion.
64 On review by Mr Csongvay on 30 March 2010, the plaintiff was told by him there was still some looseness in the fused joint. On 27 April 2010, he saw Mr Csongvay for preparation for further surgery.
65 The plaintiff next consulted Mr Csongvay on 10 May 2010. He had a further operation that day which had left the middle joint of his right index finger in a permanently fixed position.
66 Mr Csongvay explained to the plaintiff that the existing internal screw was removed from his right index finger and a piece of bone was taken from his right elbow and grafted onto his right index finger. Further, a plate with four screws was inserted into that finger.
67 Mr Csongvay also told the plaintiff that if that operation did not work, the finger may need to be amputated.
68 On 17 May 2010, the plaintiff had stitches from the operation wound removed.
69 The plaintiff last consulted Mr Csongvay on 2 August 2010, when he was told by him the hand was now stable and no further surgery would be required in the near future. No review date was set.
70 Mr Csongvay told the plaintiff that the plate and screws could be removed in about a year if they gave him any hassle. He also told him that in the future that he may need a knuckle replacement in the middle joint of his middle finger.
Pain
71 The plaintiff still wears a partial glove on his right hand, particularly in cold weather. He continues to do hand exercises shown to him by his therapist, once or twice a day.
72 The plaintiff has very little sensation in his index finger and it is numb over the skin graft area on the middle finger.
73 The plaintiff deposed that he continues to suffer pain around the base of his right index finger like an aching in the bone, almost like it has been hit by a hammer. The feeling in his finger is hard to describe. There was no normal feeling in the finger at all, though he could feel significant pressure on it and it was tender to significant knocks and movement of the joints.
74 The plaintiff still experiences blotchiness in the palm of his right hand and in the index finger, although the amount of it varies. His hand can also be very sweaty even in cold weather and when that is the case he finds it embarrassing to shake hands. His right hand is still commonly clammy, puffy and affected by some blotchiness.
75 The plaintiff’s right hand is still weak compared to the left and he continues to have a range of functional deficits with the hand. The index finger tends to get in the way. For some time the plaintiff has felt he would be better off if the finger had been amputated and he understands Mr Csongvay has not ruled that out as a possibility.
76 In cross-examination, the plaintiff agreed he said to Mr Stapleton his finger was more of a nuisance than a value. The plaintiff thought of having it amputated because it was a hindrance. He “had to continually watch, if he had things in his hand, where his finger was going – if it is going against hot things, against cold things, where it is going to be positioned – every time he is using it”. If he knocks it, he gets hypersensitive very painful pain across the top and that “has been the history since he injured it”. He has not got experienced at not being able to knock it, “because you do not realise how many times you knock your hands and fingers”.
77 Before the last operation, the plaintiff’s pain was pretty high and it did plateau. He would go backwards, then have an operation, then go backwards again, “it was a rollercoaster ride and he had no answers” and that is why he was referred to other doctors.
78 Since the second fusion operation there has been an improvement in the plaintiff’s pain but he is unable to move his index finger, which is permanently flexed.
79 In cross-examination, the plaintiff disagreed his finger had gradually improved since the incident, explaining that it had “plateaued.” He agreed that he is in less pain than he was in 2008 and it is only if he gets knocked on the top of his index finger where the metal work is inserted that he has pain.
80 The plaintiff would not say that his pain had been getting marginally better on average since the injury, but over the last few months it has been getting better.
81 The plaintiff showed his right hand whilst in the witness box. The middle index finger was bent over. The plaintiff was unable to make a fist and when he attempted to do so, the index finger drooped over the side of his fist. There was swelling over the top of the index finger where the plaintiff identified the presence of a plate which was about an inch long.
Treatment and Medication
82 At times since the incident, particularly after surgery, the plaintiff has taken Panadeine Forte for pain relief but that medication made him constipated. He presently takes Nurofen or Panadol, three or four tablets three or four times a week.
83 The plaintiff takes the medication more on the weekends because “he is okay driving the bus and he just relaxes”. On the weekends he does more activities with his right hand and his pain increases.
84 The plaintiff is presently under the care of a female general practitioner, Dr Jung in Hastings, who he has seen about six or seven times since moving to Hastings in March last year.
85 The plaintiff deposed as to back pain now and again, but not having had any treatment for a long time. He does not believe that would stop him from doing any of his old jobs. He also suffered substantial bruising to his left foot in June 2008, a problem which cleared up quickly and he has no ongoing issues in this regard.
The Plaintiff’s Lay Evidence
86 The plaintiff’s wife, Stacey Thomas, swore an affidavit on 25 May 2010. She and the plaintiff were married on 4 October 2003 and they have three children.
87 Mrs Thomas needs to fill out a lot of paperwork for the plaintiff given his hand injury and there are many tasks around the house he cannot do and what he can do he does with some effort.
88 Prior to the incident, the plaintiff used to enjoy working on his cars and maintained their vehicles to a large extent. The plaintiff now gets her to work on them and he will just tell her what to do.
89 The plaintiff is limited in his ability to play games and be involved in ‘rough and tumble’ with the children. He is worried he will hurt his right finger and hand. He tries to play totem tennis with his left hand but he is hopeless.
90 Since the incident, the plaintiff is far less hands-on with the kids. He is not able to be the Dad to kick the football or play basketball, although he tries within his limitations. If he knocks his finger he experiences a great deal of pain. This can pose difficulties with the children’s safety as the plaintiff finds it difficult to hold onto his children’s hands if he has to do so quickly.
91 The children come straight to her for help as the plaintiff is limited in what he can do with toys or fixing things.
92 The plaintiff has poor fine motor skills, such as doing up children’s buttons or folding their clothes.
93 The children have a motorbike and the plaintiff used to run along behind them and was able to catch them if they fell. He cannot do that now and has not ridden his own bike since the last surgery. Before that time he was riding for up to forty minutes.
94 As a result of his injury, the plaintiff has completely changed and their relationship has been affected to the point where they have considered separation. He has tended to cut everyone out of his life, including her, and he will not let anyone help him. He has suffered a lot of anger and frustration. Whilst he did improve a little bit after each bout of surgery, he seemed to go backwards again after any progress had been made.
95 The plaintiff has been drinking a lot more since the incident, which he says helps him with pain and also lets him forget about his hands a bit.
96 A lot more responsibility to earn income has fallen on her. She was forced to go back to work earlier than she would have wanted after the birth of her son. Further, she has increased her hours from the 10 to 20 a week she worked prior to the said date, to now working between 50 to 70 hours a fortnight.
The Plaintiff’s Medical Evidence
97 The plaintiff was referred to Barwon Health from Wimmera Base Hospital on 23 December 2006 after he had sustained an injury to his right hand while at work.
98 The plaintiff was found to have a degloving injury of the right middle finger and a fifty per cent division of the extensor tendon to his right index finger.
99 Under anaesthetic the extensor tendon and laceration were repaired. A full thickness right forearm graft was placed over the degloving injury of the right middle finger and the hand was immobilised.
100 The plaintiff was started on antibiotics and discharged home the following day.
101 On review in outpatients on 2 January 2007, the plaintiff’s wound was redressed and appeared to be healing well. He was advised to attend his local practitioner for dressings and told he could return to work at the beginning of February.
102 The operation report dated 23 December 2006 set out the surgery performed by Mr Wilson. There was a repair of a saw injury – right index and middle fingers; a full thickness graft by two - right middle finger; a 50 per cent zone 4 and extension tendon repair - right index finger.
103 The plaintiff was next reviewed in outpatients on 2 February 2007 when it was noted he had a hypersensitive scar on his right index finger but no neuroma was palpable.
104 On 23 February 2007, it was noted the plaintiff’s movements were limited by pain and swelling and that mobility of the right index finger in particular was getting worse. The middle finger was said to be progressing well. The plaintiff was also complaining of pain in the right forearm and swelling in the palm of the right hand.
105 The plaintiff was referred to the Pain Clinic, where it was confirmed he was probably suffering from a Chronic Regional Pain Syndrome. He continued under the care of the Pain Clinic, and on 5 March 2007, underwent a right stellate ganglion block as part of his pain management.
106 Following that procedure, there appeared to be no improvement and the plaintiff stated he was no longer able to move his right index finger and there was now increased sweating of the right hand.
107 The plaintiff was advised to continue with physiotherapy but he became dissatisfied because he was not improving. When phoned on 7 May 2007, he advised he was seeing a surgeon privately.
108 Ms Linley Klein, physiotherapist, saw the plaintiff for two sessions of treatment in 2007 to manage his ongoing severe hand forearm pain post the incident. She noted the plaintiff had experienced good pain relief with the use of a TENS machine and requested that CGU provide the same for the plaintiff’s use.
109 Mr Csongvay reported that the plaintiff was first seen by him at the request of Dr Cymbalist on 11 April 2007. At that time, the plaintiff presented with Reflex Sympathetic Dystrophy (“RSD”) affecting his right hand and in particular, his right index finger, following the incident.
110 Mr Csongvay noted the plaintiff had a laceration to the dorsum of the index finger, lacerating about 50 per cent of the extensor tendon between the metacarpophalangeal joint and the proximal interphalangeal (“PIP”) joint. He also had full thickness lacerations along the radial border of the middle finger.
111 Mr Csongvay noted the plaintiff developed RSD following the initial surgery. On this initial attendance, the plaintiff still had quite severe trouble from RSD, with sweatiness and severe pain, and his index finger was most troublesome. Clinically, his skin grafts had healed up very well and he had a normal range of motion of his thumb and middle finger and all the little fingers. His index finger was quite irritable and he had quite a lot of hypersensitivity, particularly around the proximal interphalangeal joint.
112 At that stage it was decided to continue the plaintiff’s ongoing treatment with the TENS machine. On review on 7 August 2007, Mr Csongvay noted the plaintiff had significant help from that machine but his right index finger pain was persistent.
113 On 25 September 2007, the plaintiff presented with ongoing pain and a lot of irritation from the extensor tendon stitch to his index finger and also some localised superficial radial nerve irritability. Mr Csongvay injected the plaintiff’s finger, which in fact reduced his finger ache and sensitivity.
114 At that stage, Mr Csongvay thought the plaintiff would benefit from debriding of the wound area around the extensor tendon, and neurolysis and joint debridement. WorkCover approved that surgery, which was performed in Ballarat on 9 November 2007.
115 A superficial digital nerve neuroma and irritation from a nylon suture knot in the wound was found on surgery. There was associated index finger proximal interphalangeal joint synovitis but otherwise normal joint articular surfaces.
116 Mr Csongvay reviewed the plaintiff on 22 November 2007, when he was healing up well. He had some sensitivity in his finger with mild stiffness, and the decision was made to continue with conservative treatment.
117 On 27 February 2008, Mr Csongvay noted the plaintiff’s finger had healed up very well and the hypersensitivity had resolved, but he still had some aching along the proximal interphalangeal joint but had a much improved range of motion. At that stage Mr Csongvay thought functionally the plaintiff was doing very well, and he considered he could return to his work with minimal restrictions and he formally discharged the plaintiff from his care.
118 The plaintiff, however, was referred back to Mr Csongvay in September 2008 with ongoing problems with swelling, which looked like a callosity over the radial side of the medial finger in the area where the partial thickness skin graft was located. The scar in that area was tender and interfering with both the plaintiff’s activities of daily living and work.
119 Mr Csongvay felt at that stage it would be reasonable to excise the reactive tender scar and that could be done as a day case and surgery was performed on 21 November 2008.
120 The findings at surgery on that date were of a painful thickness skin graft over the right middle finger with an associated large deep dermal cyst consisting of keratinous tissue. The scar was excised and the keratinised tissue was debrided.
121 On 11 December 2008, the plaintiff’s wounds had healed up very well and he had no further pain and regained a full range of motion in the finger. At that stage Mr Csongvay was hoping the plaintiff would gradually improve and he considered the plaintiff could return to his normal activities and the plaintiff was again formally discharged from his care.
122 Mr Csongvay then considered the plaintiff’s RSD was under control and that the soft tissue problems experienced in his fingers had been successfully treated by surgery.
123 Mr Csongvay thought the plaintiff would always have a degree of limitation, particularly in the index finger range of motion due to the extent of the soft tissue injury and that there may very well be some limitation of function in the middle finger, however less so than in the index finger. Otherwise, however, Mr Csongvay believed the plaintiff should continue to remain employed and be able to perform his duties as he had been able to do so far and he did not expect he would require any further surgery.
124 However, in December 2009, the plaintiff continued to have a problem with his right index finger and he again saw Mr Csongvay.
125 Mr Csongvay then noted that the plaintiff had developed more deformity in the right index finger, with worsening flexion contracture on rotation and instability in the proximal phalangeal joint of that index finger with ongoing pain. At that time the plaintiff was having a lot of difficulty using his right hand and his index finger.
126 At that stage Mr Csongvay commented that, unfortunately, the plaintiff’s trouble was deteriorating and he felt that the plaintiff strongly felt that he was unable to manage. Therefore, Mr Csongvay believed the plaintiff required a proximal phalangeal joint fusion of the damaged right index finger and he sought approval for the surgery from CGU.
127 In examination-in-chief, Mr Csongvay explained that since December 2009, when he last reported, the plaintiff came back to see him with worsening pain in his index finger.
128 Mr Csongvay explained that the plaintiff’s injury had a number of components, namely, the trauma sustained to the bony and soft tissue structure to his finger and the secondary problem was that of RSD, a nerve mediated condition affecting that part of the plaintiff’s hand.
129 Predominantly the treatment has centred on the index finger. Mr Csongvay explained that even though the middle finger had been an issue and probably the plaintiff did have a permanent injury to it, it had not been something that they had had to discuss since his very first visit and when some scar revision surgery was carried out.
130 The plaintiff told Mr Csongvay that he was getting increased irritability in the joint of his index finger where he had had previous problems in the middle joint.
131 The decision was made to explore the joint as Mr Csongvay was concerned the plaintiff was getting localised arthritic change from the original injury and on 9 February 2010, fusion surgery was performed on the PIP joint.
132 Mr Csongvay thought it was very likely, with a young man of the plaintiff’s age, that the degenerative change shown would have related to trauma rather than just a natural wear and tear.
133 Unfortunately, adequate fusion was not achieved in the February surgery where a screw was used and the plaintiff was getting increased pain in the joint so a revision fusion operation using a slightly different technique to stabilise the joint was performed by Mr Csongvay.
134 The second fusion operation involved removing the screw and carrying out the bone graft to increase the amount of bone between the contacting surfaces and insert a plate, stabilising it with four screws.
135 From an x-ray taken after the second fusion, Mr Csongvay thought that the fusion was progressing very well and it was consolidating and he was very happy with the healing.
136 Mr Csongvay explained the fusion was a permanent stiffening procedure. The ability to move the joint, a situation which caused inflammation and pain, had been removed.
137 The plaintiff has been discharged from Mr Csongvay’s care, other than having been told that if the plate gives him a problem, to come back and see him and the plate may potentially be removed.
138 Mr Csongvay has also discussed with the plaintiff the problem with the middle finger. Although Mr Csongvay noted the problem was not a significant one, he had mentioned to the plaintiff it could potentially cause him “some trouble down the track” and that sometimes a similar problem could develop in the index finger and that could potentially be a problem in the next ten to fifteen years.
139 Amputation was something that Mr Csongvay had discussed with the plaintiff; however, Mr Csongvay’s concern was the complicating factor of RSD. Mr Csongvay explained that, unfortunately, an amputation involved transecting the nerves going to that finger and that created a moderately high risk of setting off the plaintiff’s RSD. Also, with an amputation, there was a very high risk of getting phantom limb pain.
140 Although amputation was an option, Mr Csongvay explained it would be something he would try to delay or postpone or revise as far down the track as possible. He was not necessarily convinced it would be a “magic cure”.
141 In Mr Csongvay’s view, the plaintiff’s RSD was quite fluctuant and had benefitted from the nerve surgery. Mr Csongvay explained however, that the RSD had flared up since the most recent surgery, because the surgery had aggravated the nervous system in that digit. In his view, hopefully with improving healing in the plaintiff’s finger and some ongoing therapy, there was a good chance the RSD would settle.
142 Mr Csongvay explained that the swelling of the plaintiff’s right index finger which was apparent in court was more related to a general nerve, RSD-type condition rather than the plate. If the plate were removed, he would expect there would be some improvement in that dorsal sensitivity.
143 Mr Csongvay explained the importance of the index finger is for fine motor control, so for pinch fine motor tasks such as picking up fine objects using the hand for fine manipulative activities, in effect the thumb, index and little fingers were probably the three most important digits of the hand and they probably accounted for 80 per cent of the hand function. In his view, it was quite a significant impairment for the hand function.
144 In Mr Csongvay’s view, the plaintiff’s deformity and function were permanent. He did not think there would be any chance of sensory problems complained of by the plaintiff getting any better, nor a chance of a significant improvement in the plaintiff’s grip or strength.
145 Mr Csongvay accepted that the plaintiff had a degree of tenderness in the tip of his finger and in that regard the potential of taking the plate out had been discussed.
146 In cross-examination, Mr Csongvay agreed that the primary complaint was of index not middle finger problems.
147 Mr Csongvay agreed that the plaintiff at times had had a flare up of RSD related problems and then they settled down a bit. Since the neuroma surgery, the RSD symptoms have been manageable in terms that the plaintiff was able to control it with rest or putting on a splint or taking some medication.
148 Mr Csongvay confirmed the plaintiff had a mild degree of RSD since the second fusion operation, involving the ongoing swelling and some of the generalised sensitivity. It was, however, under control. Using a glove and having hand therapy was allowing the RSD not to deteriorate.
149 In terms of prognosis, Mr Csongvay expected the plaintiff’s pain should continue to improve. He noted the RSD was the unpredictable bit, because there were patients who would have that condition intermittently, potentially forever, and it is difficult to know how much of it will resolve.
150 Whilst Mr Csongvay agreed there had been some improvement leading up until December 2009, he explained the plaintiff had always had a joint that would always cause him some irritability.
151 Mr Csongvay accepted that a person having had a fusion may also get a lot better at using his other fingers.
152 In terms of the plaintiff’s hand function, he believed that there may be at least some improvement but the plaintiff would never get back to a normal function in his hand. He expected improvement more in terms of pain and swelling rather than in terms of significant improvement in strength or significant improvement in dexterity.
153 In re-examination, Mr Csongvay confirmed the plaintiff’s index finger was permanently affected but thought it fair to say some of that function could be compensated for by his other fingers. The difficulty was that the plaintiff’s middle finger was not normal either and it was hard to say how well that is going to be able to compensate for the deficiencies the plaintiff had been left with as a result of his index finger.
154 In any event, the injury, in combination with pain and RSD, Mr Csongvay considered to be a significant impairment to the function of the plaintiff’s hand. He did not believe the plaintiff’s hand would ever recover to the point where he could be considered to have normal strength, normal dexterity, no matter how well he is able to compensate.
155 Dr Cymbalist, the plaintiff’s treating doctor in Horsham, provided a report of 2 August 2008 which was the last time she saw the plaintiff.
156 At that stage, she thought the plaintiff’s finger problems would prevent him from learning to type, which she noted was something useful for computer skills as a means of retraining. She noted the plaintiff’s previous employment of seven and a half years in security was not available to him as he would not be able to use physical force to restrain someone, as he lacked the ability to grasp or punch.
157 Dr Cymbalist noted the plaintiff had concerns about the cosmetic result of the right middle finger injury and he lacked feeling in that area and needed to grasp a pen. He also advised her that lumps formed repeatedly in the grafted area and he was seeking further advice from Mr Csongvay about reconstructive surgery.
158 Dr Cymbalist noted that had the plaintiff not been injured, he would have continued to work full time with the first defendant and was interested in becoming its occupational health and safety officer with further training. He left that job as a result of the way he felt he was treated by the first defendant during his rehabilitation phase. The plaintiff enjoyed his work with the first defendant, finding it more rewarding than his current employment.
159 Dr Cymbalist noted the plaintiff was in full time work with the first defendant, whereas he now worked part time with his new employer.
160 Kristen Coats, chief occupational therapist for the Wimmera Health Care Group, reported on 4 January 2010. Ms Coats detailed the plaintiff’s treatment at Geelong Hospital and the referral to physiotherapy at the Wimmera Health Care Group.
161 Ms Coats noted the plaintiff was discharged from Wimmera Health Care in December 2007. At that time, the plaintiff continued to report ongoing pain in his right index finger following repetitive use.
162 Dr Blombery, consultant physician in vascular disease, saw the plaintiff on 5 November 2009.
163 At that stage the plaintiff was complaining of ongoing pain in the right index finger on the radial side. This affected the proximal and medial phalanges. There was numbness also of the ulnar side of the finger and also in the skin grafted area.
164 Dr Blombery noted the right hand swelled, became hot and cold and went blotchy or blue in appearance. It sweated abnormally and the plaintiff’s nails grew abnormally.
165 The plaintiff was very frustrated by the ongoing pain in that area. His right hand swelled and he had difficulty flexing his index finger into his palm.
166 The plaintiff told Dr Blombery that he was not limited very much by his hand in his job as a bus driver. However, at home he had difficulty with activities such as doing up his shoe laces. He could only ride his motorbike on a limited basis and was no longer able to do maintenance on it or his car. He tended to do tasks using his right middle finger rather than the index finger and he had difficulty in writing properly.
167 On examination, the right hand was one-and-a-half degrees cooler than the left and a little more blotchy. There was a scar of the ulnar side of the PIP joint in the right index finger.
168 There was 90 degrees flexion of the metacarpophalangeal joint and full extension, 60 degrees of flexion at the PIP joint and 10 degrees of extension, and in the DIP joint there was 60 degrees of flexion and full extension.
169 In the right middle finger there was an area of skin grafting over the radial side of the finger measuring 5 x 1.5 centimetres. The donor site of the skin graft was on the right forearm where there was a 10-centimetre scar. Dr Blombery noted the skin grafting and repair of a tendon was complicated by the development of ongoing pain, together with changes in temperature and colour of the affected part.
170 He thought these features of ongoing pain, together with autonomic disturbance was diagnostic of Complex Regional Pain Syndrome Type 1, or as it used be known, RSD.
171 Dr Blombery thought the plaintiff continued to experience significant
autonomic disturbance in the right hand and fulfilled the criteria for the
Complex Regional Pain Syndrome Type 1 diagnosis.
172 He considered the plaintiff’s prognosis for recovery was poor. It was his opinion the plaintiff was going to be left long term with his current degree of disability and that he should have ongoing treatment with multidisciplinary therapy for chronic pain.
173 In terms of his capacity for employment, Dr Blombery thought the plaintiff had no capacity for his previous job where he was using a saw which would involve heavy physical work. In Dr Blombery’s view, the plaintiff would have no capacity to do this work either now or in the future and he would be similarly restricted in his capacity to engage in social, recreational and domestic activities.
174 Mr Stapleton, plastic and hand surgeon, examined the plaintiff on 16 June 2010.
175 The plaintiff told him that his mechanical aptitude had been very much diminished. He could not play with his children the way he used to, he had difficulty lifting heavy weights and gripping objects and he had no capacity to manipulate small objects between his thumb and middle finger.
176 The plaintiff told Mr Stapleton he had no sensation down the complete length of the ulnar side of the index finger and the sensation down the complete length of the right index finger was slowly recovering.
177 The plaintiff told Mr Stapleton his right index finger gave rise to a constant throbbing pain.
178 Mr Stapleton noted the scar running down radial side of the complete length of the right middle finger and the fact that there was a slight bulge at the terminal part of that scar. He noted functionally the right finger had recovered.
179 Mr Stapleton commented that the right index finger was the problem. When the plaintiff removed his splint it was red and swollen.
180 The DIP joint moved from zero to 5 degrees, the PIP joint was fused at 10 degrees of flexion and there was movement of zero to 90 degrees of the NCP joint.
181 There was no sensation down the complete length of the ulnar side of the index finger and it was noted the plaintiff was recovering sensation down the radial side of the index finger.
182 Mr Stapleton thought the plaintiff would have difficulty in all activities. He believed in time the plaintiff had come to seriously consider his index finger being amputated as Mr Stapleton understood that with the plaintiff it was more of a nuisance than value.
183 In Mr Stapleton’s view, the plaintiff did not have a work capacity involving manual employment. He considered of all his previous jobs, apart from bus driving, the plaintiff would be incapable of safely or completing performing those activities. He considered the prognosis for the plaintiff’s index finger was poor indeed.
184 In Mr Stapleton’s judgment, as it stood at the present time, the plaintiff was a candidate for his right index finger to be amputated.
185 Mr Peter Scott, orthopaedic surgeon, examined the plaintiff on 20 March 2007 and 17 September 2007.
186 As both examinations are somewhat out of date and pre-date more recent fusion surgery, they are of little assistance in this matter.
187 Similarly, Mr Buntine, plastic, reconstructive and hand surgeon, saw the plaintiff on 27 January 2009 before the two fusion operations.
Investigations
188 On 3 April 2007, Dr Cymbalist, general practitioner, arranged an x-ray of the plaintiff’s right hand. It was noted there was no fracture or bone avulsion. There was irregularity of the articular surfaces and a mild reduction of joint space present at the second PIP joint which it was noted was likely due to previous trauma. The third DIP joint was angulated medially but no obvious subluxation was seen.
189 A further x-ray of the plaintiff’s right hand was carried out on 8 August 2007.
190 There was no evidence of fracture or subluxation, especially of the index finger. There was no bony arthritic change seen at the PIP joint of the index finger. It was noted other joint spaces were normal. Soft tissues at the radial aspect of the mid phalanx of the middle finger were swollen.
The Defendants’ Medical Evidence
191 The defendants relied upon a report from Mr Csongvay dated 27 February 2008,
192 On that date, Mr Csongvay wrote to Dr Cymbalist advising he had reviewed the plaintiff that day, three months post-operatively.
193 Mr Csongvay advised the plaintiff had healed up well and his hypersensitivity of the fingers had resolved. His RSD had significantly improved and the range of motion of the fingers was excellent. He noted the plaintiff still had some aching in the proximal interphalangeal joint, which he suspected was as a result of some capsular scarring. Overall he thought the plaintiff had made excellent progress and he did not believe further surgical intervention was indicated.
194 Mr Csongvay advised he was happy for the plaintiff to return to his normal activities and advised if he had any problems he could return to see him.
Findings
195 It is obviously not disputed that in the incident, the plaintiff suffered injury to the middle and index finger of his dominant right hand.
196 The plaintiff was found to have a degloving injury of the right middle finger and a fifty per cent division of the extensor tendon to his right index finger.
197 The plaintiff has undergone surgery on five occasions the most recent resulting in a fusion of his index finger in June 2010. As a result of that surgery the plaintiff’s index finger is fused.
198 This situation is permanent.
199 The issue for consideration is impairment, not injury.
200 Whilst counsel for the defendants conceded that the plaintiff had legitimate problems resulting from his index finger injury, it was submitted that such problems did not meet the test of seriousness.
201 Counsel for the defendants argued against the seriousness of the plaintiff’s impairment as the plaintiff has been able to obtain work as a bus driver and is presently looking at working increasing hours in a job he loved. It was submitted that the plaintiff had not suffered the loss of any particular vocation which he enjoyed before the incident.
202 In Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, Chernov JA remarked that where a plaintiff was capable of returning to alternative employment, then unless there was some other evidence that he experienced significant pain or that he otherwise significantly suffered physically from the injury, then it would ordinarily be difficult to conclude that the pain and suffering consequences of it are “at least very considerable”.
203 Although the plaintiff had only been in the employ of the first defendant for three months prior to the incident, he intended to stay in Horsham with his family and continue in that employment, together with his other part time jobs.
204 As Dr Cymbalist reported, had the plaintiff not been injured, he would have continued to work full time with the first defendant and was interested in becoming its occupational health and safety officer with further training. The plaintiff enjoyed his work with the first defendant, finding it more rewarding than his current employment.
205 The plaintiff’s evidence in this regard is unchallenged.
206 Whilst the ability to return to work is a relevant consideration in determining this application, each case must be looked at in light of its own facts.
207 I accept that the plaintiff, a man with training in mechanical work and work experience in manual labour, including heavy timber work and truck driving, no longer has the capacity to perform heavy manual work or work involving fine hand movements.
208 This view is shared by all medical practitioners who have opined in this matter.
209 The plaintiff can cope with his bus driving duties which are very light and involve no lifting or fine use of his hands. He does, however, have problems when he engages in other activities on the weekend when his index finger gets in the way. He cannot avoid these situations totally by just being careful.
210 I accept the plaintiff is a hardworking man who has obtained alternative light employment in the face of a major disability. As counsel for the defendants conceded, the plaintiff was a very credible witness who presented to the Court in a very upfront manner.
211 I accept the plaintiff’s evidence as to his level of pain and restriction.
212 The plaintiff lacks the dexterity and strength in his dominant hand and also his index finer is very painful if knocked.
213 There was no video surveillance or any evidence challenging his evidence in this regard. Further, no medical practitioner has expressed any concern about the genuineness of the plaintiff’s complaints nor considered that he exaggerated his symptoms on examination.
214 The plaintiff also has problems with domestic and recreational activities requiring the use of his right hand. In particular, he can now do very little in the way of maintenance on his car or motorbike, activities he enjoyed as a hobby and also ones which provided him with some extra income.
215 The plaintiff is similarly restricted in his performance of day-to-day activities such as tying shoe laces, doing up buttons and even get things out of his pocket. His handwriting is significantly affected, having to get his wife’s help in this regard. The problems associated with these activities are a constant reminder of the incident.
216 The plaintiff’s wife’s affidavit confirmed the plaintiff’s difficulties in this regard. Her evidence was unchallenged. This was the situation also in relation to the plaintiff’s difficulties playing with his young children because of pain and restriction due to his hand injury.
217 Whilst the plaintiff had ridden a motorbike in the period leading up to the first fusion operation, he has not ridden since and has not tested his ability to ride with his index finger flexed.
218 Prior to the fusion surgery, he experienced pins and needles in the hand whilst riding and he had problems gripping the accelerator and brake with his right hand. His ability to ride was limited to about 45 minutes at a time, whereas before the incident he could go on day long rids with no difficulty.
219 I accept that if the plaintiff returns to riding, as he hopes to do, it will obviously be on a more restricted basis than he was able to enjoy this activity before the incident.
220 Whilst the plaintiff may over time adapt in some way to the problem with his finger, I do not accept that he would reach a stage where use of his hand would be anywhere near normal. Further as Mr Csongvay pointed out, the plaintiff has the additional problem with his middle finger.
221 Whilst at times before the fusion surgery the plaintiff’s condition appeared to be improving, such gains were short lived and predated two fusion operations.
222 Following the second fusion operation, the plaintiff’s pain has plateaued. Whilst he does not complain of constant pain, he faces very severe pain when his finger is knocked which is a frequent occurrence. Further, he continues to have a feeling of altered sensation in both fingers.
223 In the future there may be some improvement in the level of pain and sensitivity but the restriction of movement is permanent, as is the loss of strength and the inability to make a fist.
224 Whilst the plaintiff does not take prescription medication because it has caused him constipation, he still requires over-the-counter medication on a regular basis after activity.
225 There is no more treatment suggested for him, having been discharged from Mr Csongvay’s care save for the removal of the plate in the future if it gives him problems.
226 An injury of this nature is particularly significant to this plaintiff. He is an uneducated man with a history of only manual work, whose hobbies required the use of his hands. His enjoyment and participation in these activities has to large extent been taken away from him or significantly restricted – consequences which I consider to be “serious”.
227 Counsel for the defendants relied on Ashley JA’s comments in Dwyer v Calco Timbers Pty Ltd No 2 (supra), affirmed by the Court of Appeal in the second appeal in Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, in that measuring the pain and suffering consequences, it is important to look at what is retained as well as what is lost.
228 Whilst the plaintiff works increasing hours and has apparently retained the ability to ride a motorbike, although untested since the fusion surgery, the interference with all right-handed activities as a result of his injury is more than considerable.
229 I accept, as Mr Stapleton noted, the plaintiff is impaired in all activities on a permanent basis because of his right finger injury.
230 The relevant impairment is that of the right hand, not just the index finger. Whilst the plaintiff’s middle finger has not been a major problem for some time, it still affects his hand function, as Mr Csongvay described, and it could pose a problem for the plaintiff in later years of a similar nature to those experienced with his index finger..
231 In terms of any permanent RSD, I accept Mr Csongvay’s evidence that the condition is moderate and being managed. Further, the plaintiff has not complained of any ongoing significant RSD symptoms.
232 Taking into account all the evidence, I am satisfied that the plaintiff suffered a serious injury to his right hand in the incident.
233 Having found a serious injury pursuant to subsection (a), I am not required to consider the application in relation to permanent and serious disfigurement.
234 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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