Tran v Mett Pty Ltd
[2016] VCC 1360
•16 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04670
| LOI VAN TRAN | Plaintiff |
| v | |
| METT PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KL BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 September 2016 | |
DATE OF JUDGMENT: | 16 September 2016 | |
CASE MAY BE CITED AS: | Tran v Mett Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1360 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the non-dominant left hand/fingers – disfigurement – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37)(b) and s134AB(38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ansett Australia Ltd v Taylor [2006] VSCA 171; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Kelso v Tatiara meat Company Pty Ltd (2007) 17 VR 592
Judgment:Leave granted to bring proceedings for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC with Mr R Lewis | Willocks Lawyers |
| For the Defendant | Ms M Tsikaris | Wisewould Mahoney |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant on 15 July 2013 (“the said date”).
2 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
3 The body function relied upon is the left lower limb.
4 The plaintiff also brings this application pursuant to clause (b) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(b) permanent serious disfigurement.”
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 s134AB(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 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] (2006) 14 VR 602
12 The plaintiff relied upon two affidavits and gave viva voce evidence. Further, he relied upon an affidavit sworn by his wife, Thi Trang Do, on 15 August 2016. She was cross examined. The plaintiff also relied on an affidavit sworn by his daughter, Vivian, on 13 August 2016. In addition, both parties relied on medical reports and other material which was tendered in evidence.
The Plaintiff’s evidence
13 The plaintiff is presently aged forty-three, having been born in June 1973 in Vietnam. He attended school to Year 6 and migrated to Australia in 1990.
14 The plaintiff started work as a manual labourer at the defendant’s factory in 2002.
15 On the said date, whilst the plaintiff was cleaning a machine using his left hand, a co-worker activated the machine, causing the plaintiff’s left hand to be crushed (“the incident”).
16 Following the incident, the plaintiff was taken to Dandenong Hospital, where he underwent surgery (“the hand surgery”).
17 Following the hand surgery, the plaintiff underwent hand therapy for two months at Dandenong Hospital. He convalesced at home for about three months and then gradually returned to work, resuming full-time duties within a couple of weeks.
18 The plaintiff denied that when seen by Mr Anstee, skin reconstructive surgeon, three months after the incident, he told him he had no pain. The scar did worry him, although Mr Antsee noted it did not.[3]
[3]Transcript (“T”) 40
19 The plaintiff denied that he was managing work satisfactorily, as Mr Antsee then noted. He was managing okay, but his duties had changed from those pre injury. He looked after the machines but he did not do any heavy duties.[4]
[4]T16
20 The plaintiff confirmed he had the assistance of a solicitor or barrister in preparing his first affidavit and that he told his lawyers all the problems that he had at that time.[5]
[5]T20
21 As of June 2015, when he swore his first affidavit, the plaintiff generally worked from 3.30pm to 4.00am six days a week, and sometimes Saturdays from 3.30pm to 4.00am. His duties were the same as pre incident, except he then did light duties and tended not to carry heavy items.
22 By the end of the workday, the plaintiff then found he had to rest his hand for a while due to pain and soreness. The wound area was very sensitive to heat and exposure thereto brought on an uncomfortable sensation.
23 The plaintiff continues to perform the same modified duties but now only works five days a week, the same hours from Monday to Thursday and 2.00pm to 10.30pm on Fridays. Five days a week is now the normal workload of the defendant company.[6]
[6]T6
24 Before the incident, the plaintiff’s duties involved collecting and loading large metal containers on a trolley, filling the containers with aluminium car parts and pushing, pulling and dragging the trolley carrying the full containers from the line to the drop off area. Additionally, on average twice a month, he was required to remove the pistons and machines from their large cylinders in order to replace them.
25 Since the incident, due to his pain and limitations, the plaintiff is no longer able to manoeuvre the trolleys laden with full metal containers or tend to removing and replacing the pistons. These days he fills and transports much smaller lighter containers or, when larger containers need to be transported, he uses a forklift when available.
26 Whilst there are forklifts at work, the plaintiff is always required to help. He is able to move the smaller trolleys containing parts. He denied that technicians are engaged to change the pistons. That was his job before the incident, and he is not responsible for it any more.[7]
[7]T17
27 The plaintiff’s duties continue to require some degree of pushing and pulling, but he is generally able to use only his right hand for such tasks. Some of his work duties involve gripping and twisting of his left hand, which causes him to experience increased pain.
28 The plaintiff wears a glove at work in order to protect his hand from being bumped and the scar from being brushed. When not wearing a glove, he tends to put his hand in his pocket for protection. He finds any bump of his hand causes a dramatic increase in pain and when the area of the scar is even brushed, it invokes nerve-type pain that feels like knives are being stabbed into the back of his hand.
29 The injury has seemingly affected the plaintiff’s grip strength such that, at times, he experiences a tendency to drop even light objects at work and around the house.
30 The plaintiff’s current general practitioner, Dr Demirtzoglou, has advised him to rotate his work duties so he is not gripping and twisting with his left hand as often. He warned the plaintiff that he may ultimately require removal of the plates and screws in his hand if he cannot tolerate them and continues to have problems.
31 Even though the plaintiff tries to minimise the use of his left hand in favour of his right, both at work and when going about everyday life, he finds that by the end of each day and, particularly, the end of each week, the level of pain and fatigue in his left hand has increased dramatically, such that he is required to rest and minimise any activity.
32 In cross-examination, the plaintiff confirmed he still works on the Machines 10 and 11, the machines he operated before the injury. He still works overtime, but not on other worker’s machines.[8]
[8]T5
33 The plaintiff had assistance when working on his machines after the incident, as he was only able to use one hand. The defendant allocates or assigns the task of helping the plaintiff to his fellow workers, but they all help each other.[9]
[9]T7
34 The plaintiff has not provided any certificates for work since September 2013.[10]
[10]T7
35 While he could not remember the precise number of hours, the plaintiff agreed he worked overtime on average twenty hours per week in the financial year ending June 2014 and twenty-six hours in the year ending 30 June 2015.[11]
[11]T12
36 The plaintiff’s normal shift finishes at midnight and if he does overtime, he finishes at 4.00am. When he gets home from work, he has a shower and has something to eat and then has to take medication before he goes to sleep, otherwise he cannot sleep. He takes Panadol, but has never taken sleeping tablets because of stomach problems and he does not like taking too much medication.[12]
[12]T13
37 While his hand injury does not stop him from working, his left hand is different to how it was before the injury. Before the injury, he was able to use both hands quite comfortably but now has to change the way he uses his hands, so it is now more difficult. He has been advised by Dr Demirtzoglou not to use his hands repetitively doing so could result in long-term damage to his bones.[13]
[13]T30
38 Generally, the plaintiff and his fellow workers helped each other. After his injury, the plaintiff required more assistance from other workers than before the injury.[14]
[14]T35
Pain
39 As of June 2015, the plaintiff described experiencing pain in his left hand for much of the time. He felt that pain a few times every day. Sometimes it could be passing, but other times it persisted for a number of hours at a time. He felt a sharp stabbing-type of pain in the wound area and it frequently felt as if the pain shot down to his middle finger. In addition to the pain, there was also a generalised numbness over the graft area.
40 The wound area was also very sensitive to sunlight and the plaintiff had to wear sunscreen if going out in the sun and, also, often wear a jacket to cover the wound area.
41 The plaintiff felt embarrassed about the scarring. Even in warmer weather, he preferred to wear long-sleeved clothing rather than be seen in short sleeves.
42 The plaintiff had become quite depressed and upset about his injury in the months he spent at home recuperating after the hand surgery. For a period, he drank too much alcohol. He felt he overcame this problem once he got back into his work routine but, as at June 2015, he still had periods when he felt quite upset and overwhelmed by his injury.
43 In his second affidavit sworn August 2016, the plaintiff confirmed nothing much had changed since he swore his earlier affidavit.
44 The pain, numbness, heightened sensitivity and limitation of movement has not improved, which has led the plaintiff to seeking opinions from multiple general practitioners, and a specialist, in the hope that one of them could come up with a solution to address his problems.
45 Unfortunately, the consensus amongst medical practitioners seems to be the plaintiff is destined to continue to experience these problems with his left hand, whether or not the surgical screws are removed. Further, the plaintiff can look forward to suffering worsening arthritis and all he can do is try to minimise the use of his left hand as well as continue to apply creams and take pain-relieving medication.
46 The lack of hope for improvement makes the plaintiff feel frustrated and depressed, particularly given he feels very embarrassed and self-conscious about the unsightly scarring.
47 The plaintiff’s pain, numbness, ache, heightened sensitivity and restrictions continue to negatively affect his sleep, mobility, social life, sex life, ability to perform household tasks and enjoy recreational pursuits.
48 The severity of the plaintiff’s left hand pain varies from day to day, although it is noticeably worse in colder weather, when an ache develops on the back of his hand. The pain tends to increase with prolonged, sustained or repetitive movements and he would estimate the pain he experiences, on average, to be 5 to 7 out of 10, which increases to 10 out of 10 during flare ups, or in cold weather. This has been the situation for the last two years.[15]
[15]T18
49 The plaintiff finds, after engaging in activities requiring use of the left arm, particularly those involving weight bearing, the pain increases in intensity and the flare ups can persist for days.
50 The plaintiff has generally found that the only things that settle the flare ups when he is in pain, are the combination of increased pain medication and rest.
51 In addition to pain, the plaintiff suffers from a varying, but substantial, loss of strength in the middle finger of his left hand, which makes grasping and holding objects difficult. When he grips or holds items, his hand becomes tired and he drops them.[16]
[16]T3
52 The plaintiff’s pain continues to affect his sleep and he tries to sleep with his hand rested on the pillow. He is unable to sleep in certain other positions, particularly on his left side, which causes him to have a restless night’s sleep, as he shifts around looking for a comfortable position.
53 At times, the pain causes the plaintiff to wake during the night. Often this occurs because he has accidentally rolled onto his left side, while at other times, it is because his wife has knocked his hand. His lack of sleep generally makes him feel tired and groggy the following day.
54 The discolouration of the plaintiff’s scar becomes more noticeable when he eats and drinks certain things. Drinking beer, the scar tends to become redder. The unsightly look of the scar negatively affects the plaintiff’s self-esteem and makes him feel self-conscious.
55 The plaintiff agreed he had a good result from the hand surgery. He could still use his hand, but he did so differently to how he did before the injury. For example, his hand was weaker and more painful if he did something repetitively.[17]
[17]T30
56 Whilst the plaintiff was in the witness box, I inspected the scar with both counsel. I found the scar to be obvious and unsightly running right down his middle finger, far into his left hand. The plaintiff pointed out the area of his pain running down the scar site.
Treatment
57 In his first affidavit, the plaintiff described that the only way he could really deal with the pain was to use his right hand more and stay in a cool and shaded area. He still resorted to taking Panadol if the pain was particularly bad, although he tried to avoid taking medication as much as possible.
58 The plaintiff had used a moisturising-type cream on the wound daily as the skin felt tight and uncomfortable. He believed the cream gave some sort of elasticity to the skin but he had recently stopped using it because it certainly did not solve the problem.
59 The plaintiff attended the Balmoral Clinic in Springvale after the incident where he saw Dr Vu.
60 On 16 September 2013, the plaintiff saw Dr Vu, complaining of a sore throat and pain in his hand. He explained that he did not attend Dr Vu for the following twelve months because he could not help him. Dr Vu advised the plaintiff to try acupuncture, but the plaintiff declined because he thought it would be too painful.[18]
[18]T9
61 When seen by Dr Vu in late November 2014 for an unrelated problem, although the plaintiff did not mention his hand at that time, he was having a lot of pain in his hand so he was looking for another doctor.[19]
[19]T9
62 Throughout 2015, the plaintiff continued to take medication at home and it was not until the scar became worse he decided to see the doctor to hopefully get some plastic surgery.[20]
[20]T10
63 A friend of the plaintiff suggested that he see Dr Demirtzoglou, whom the plaintiff first saw in December 2015. The plaintiff’s daughter accompanies him to examinations to translate for him.
64 The plaintiff attends Dr Demirtzoglou for treatment of his left hand pain, particularly over the area of his first and middle fingers. The plaintiff had hoped he might have a solution to his left hand pain and disfigurement.
65 In December 2015, Dr Demirtzoglou organised an x-ray of the plaintiff’s left hand. In January 2016, the plaintiff sought advice from him about the scarring and he referred the plaintiff to Mr Leong, a plastic surgeon.
66 The plaintiff saw Mr Leong in about February 2016 but was disappointed to be advised that with revision surgery, the scarring may be reduced, but not eliminated altogether.
67 The plaintiff tries to avoid taking too much medication, as he believes it would be bad for his body and he has experienced consequential stomach upsets in the past. He currently takes between six to eight over-the-counter pain-relieving tablets per day and applies Voltaren Gel and Zatamil cream for scarring.[21]
[21]T4
68 If the plaintiff is in a lot of pain, he takes up to eight tablets a day, otherwise up to six. He has to take medication all the time because of his pain. He tries to avoid taking medication as much as possible but, if he is in pain, then he has no option and he has to take it.[22] He takes Panadol when in pain and he has pain every day.[23]
[22]T18
[23]T19
69 The plaintiff denied he told Mr Jones on examination in July this year that he was not taking any medication.[24]
[24]T33
Restrictions
70 The plaintiff is limited in what he can do around the house because of his left hand pain and limitations. He has trouble with holding, pushing, pulling and lifting activities, which makes it very difficult for him to cut grass, cook, clean, shower, wash the dishes and so on.
71 When the plaintiff tries mowing the lawn, he experiences pain in his hand, as well as a feeling of numbness on the back of his wrist. His left hand grip has become questionable as he finds he tends to drop things unexpectedly. If hot water touches his hand when he showering, it produces an immediate knife pain sensation, as does the pressure of even cooler water on his skin.
72 There are too many activities to name around the house that are difficult due to the plaintiff’s hand injury. He has been forced to live with pain every day and learnt to improvise in order to minimise its intensity and try and get on with his life. Even simple activities around the house provoke flare ups in his pain.
Domestic
73 The plaintiff met his wife in June 2014 and they married in Vietnam in January 2015. At the wedding, when the plaintiff met his wife’s family members, they all seemed to be looking at his ugly scar and did not seem to believe it was a work injury. They gave him the impression they thought it was sustained from “doing something bad”. He finds that people often ask him about his hand, which upsets him.
74 The hand injury affects the plaintiff’s relationship with his wife in many ways. It makes it difficult and painful for him to hug and touch her. She clearly finds this annoying, as she asks why he does not hug her with a warm embrace, using both hands, saying that avoiding such behaviour is strange between husband and wife. The injury also affects the intimate aspects of their relationship.
75 When the plaintiff gets home after finishing work at 4.00am, his wife is sometimes awake, feeding the baby. He sleeps alone because he needs to get a good sleep because of his work hours.
76 The plaintiff did not tell his doctor about sleep problems because he was not asked. He did not ask his doctor for any sleeping medication.[25]
[25]T30
77 When the family recently moved house, the plaintiff was forced to pay someone to move just about everything because of the limitations with his left hand. He found this situation demeaning.
78 The plaintiff tries to assist his wife as much as possible when they go shopping, but is limited to pushing the trolley and only lifting lighter things. It is very embarrassing for a Vietnamese man not being able to lift heavier objects for his wife, particularly when she makes comments he should behave more like a man.
79 The plaintiff and his wife had a baby girl in September 2015. The plaintiff finds it difficult to hug and hold his daughter for very long, which saddens him immensely, especially knowing this situation will only get worse as she gets older.
80 The plaintiff confirmed that whilst there was no difficulty with his palm, he still had pain in his hand when holding his baby or hugging his wife. These movements puts pressure on his finger, causing pain on the back of his hand.[26]
[26]T24
81 The plaintiff’s reduced abilities and activities as a result of his injury have had a negative effect on his self-esteem and family relationships in general. He used to be a much happier person and joked around much more than he now does. He tends to worry a great deal about his future and what awaits him in light of his injuries.
82 The plaintiff confirmed that the problems with his hand were a barrier to relationships, including meeting his wife, although that was not mentioned in the first affidavit.[27]
[27]T22
83 The plaintiff told the Medical Panel in April 2015 that his hand was ugly but he did not tell them he could no longer seek a partner because no one would be accepting of him. As a matter of luck he had met his wife and married.[28]
[28]T29
84 The frustration and anxiousness caused by his injuries and limitations has led to the plaintiff being, at times, moody and grumpy. He must certainly have become more difficult to live with and be friends with; he is no longer the happy-go-lucky person he previously was. He continues to experience fortnightly nightmares about the machine crushing his hand and tries to avoid looking at the machine when at work.
Recreational activities
85 Before the incident, the plaintiff played soccer every weekend at a park with friends. He has rarely played soccer since the incident because of the sensitivity in his hand and the fear of it being bumped. He also needs to use his hand playing soccer as a goalkeeper and catching the ball at various times.[29]
[29] T26
86 The injury has caused the plaintiff to lose a large social component of his life, and he tends to decline any invitations from friends to socialise.
87 The plaintiff enjoyed playing the guitar with friends prior to the incident when they would get together and strum guitars while enjoying a beer and talking. The plaintiff has tried to play the guitar since the incident but finds that holding the guitar and pressing the strings hurts his left hand, particularly his middle finger. He experienced so much pain and difficulty trying to play that he has since given the guitar away to a friend.
88 The plaintiff had been playing guitar for some time before he arrived in Australia in 1990. Before the incident, he played and practised every day after he had had lunch.[30]
[30]T27
89 Guitar and soccer were an outlet for the plaintiff from which he gained much enjoyment and satisfaction and now they have been tainted, going hand in hand with increased pain and discomfort in his left hand. Pre incident, these activities were the plaintiff’s only relaxation or hobbies.
90 The plaintiff is able to drive an automatic car, but tries to avoid driving long distances and minimises using his left hand when driving. He has increased pain when he has to turn the wheel suddenly or drive longer distances, requiring the use of both arms.
91 The plaintiff’s left hand is very ugly and he usually hides it in his pocket so people cannot see, as they would think he had done some bad things to cause the scar, like being in a fight or committing a crime.[31]
[31]T10
92 The plaintiff has been putting his hand in his pocket ever since the hand surgery because his hand is quite ugly. He puts it there to hide it when he walks down the street and also to avoid his hand making contact with things because any contact causes him pain.[32]
[32]T21
93 The plaintiff also sits on his hand, putting it in a position that this does not hurt, to try to hide the scar from people.[33]
[33]T25
94 The plaintiff confirmed he told Mr Jones in the middle of this year that he put his left hand in his pocket when he did not use it and he was quite self-conscious of the scar.
95 The plaintiff denied he told Mr Jones on examination in mid-2015 that the scar was occasionally itchy; he told him it was painful. If he had to do something with his left hand, he would put on a glove, but normally did not wear one.[34]
[34]T33
Lay evidence
96 The plaintiff’s wife, Thi Trang Do, swore an affidavit on 15 August 2016. She married the plaintiff in January 2015.
97 Ms Do confirmed the plaintiff has difficulty with hand pain, waking during the night, and often he does not appear well rested the following day. She often wants to sleep in a separate room, which interferes with their normal marital relationship and they are unable to participate in desired sexual activity because of the plaintiff’s hand pain.
98 Ms Do has noticed the plaintiff tends to avoid physical activity such as picking up their daughter, but at times, she has seen him attempt to push himself to be more actively involved with physical activities with their child.
99 Ms Do has observed the plaintiff tends to avoid lifting and moving heavy things and he tells her that his left hand pain causes him difficulty in that regard. He also tells her he has difficulty holding onto things because of his symptoms and numbness in the left hand and, on occasion, she has noticed he tends to drop things.
100 Ms Do has observed the plaintiff take pain medication and apply various creams to his left hand.
101 Ms Do has noticed the plaintiff experiences difficulty helping out with the shopping, and he has pain when lifting heavier shopping bags. As a result, she does more of the shopping tasks when accompanied by the plaintiff, which is quite unusual for a Vietnamese lady.
102 Ms Do has noticed that the plaintiff tends to have his hand in his pocket when they are both out shopping. He has told her he does so to hide the scarring and to protect his hand from being bumped as when that occurs, he has increased pain.
103 In cross-examination, Ms Do explained that she works as a nail technician in Chadstone between 9.30am and 5.00pm, six days a week.
104 The plaintiff looks after the baby after she goes to work early in the morning and then takes the baby to a babysitter. She confirmed the plaintiff’s problems lifting things and doing things around the house and that he continues to take painkillers.[35]
[35]T39
105 The plaintiff’s daughter, Vivian swore an affidavit on 13 August 2016.
106 Prior to the incident, the plaintiff was an energetic person who enjoyed going out with friends.
107 Since then, the plaintiff appears to become withdrawn and isolated. His hand injury is bothersome to him. She has observed there are a number of activities requiring the use of his left hand that the plaintiff has difficulty with. She has heard him say he wishes the scarring and pain would disappear forever.
108 The plaintiff often appears to be in pain, which she notices, in particular, when he has been driving for a prolonged period. He tells her he has difficulty controlling the steering wheel because of the symptoms and numbness in his left hand.
109 The plaintiff used to particularly enjoy playing the guitar, but avoided doing so since the incident because of left hand pain. On the odd occasion, he has played after the incident, she both saw and heard he had difficulty playing the guitar to anywhere near the standard he did pre injury, and that frustrates and upsets him.
110 The plaintiff used to particularly like playing soccer with friends. Since the incident, he has tended to avoid that activity or go to the park regularly like he used to. He has told her this is because he fears his hand will be bumped and cause him additional pain.
111 The plaintiff appears to have difficulty gripping things with his left hand. On occasion, she has noticed that he has tended to drop things, and is restricted in activities which require fine motor skills or strength in his left hand.
112 Ms Tran has noticed the plaintiff tends to hide his hand in his pocket because he does not want people to see the scarring and also puts it there for protection, because any bumps to his hand increases his pain.
Treaters
113 Mr Stephen Tham, hand surgeon, operated on the plaintiff’s hand on 16 July 2013.
114 The pre-operative diagnosis was a crush injury of the left hand with comminute fracture neck of the left second metacarpal open, an open fracture shaft of proximal phalanx and divided extensor tendon to the middle finger.
115 In a short report of 26 July 2016, Mr Tham confirmed he internally fixed the fracture to the left second metacarpal and proximal phalanx, and repaired the extensor tendon to the plaintiff's middle finger on 16 July 2013.
116 Dr Demirtzoglou, general practitioner from Dandenong Medical Centre, reported on 25 June 2016. The plaintiff has been attending that clinic since 14 December 2015.
117 When the plaintiff was first seen, he complained of pain over the left hand due to the injury, with pain over the first and second metacarpal. He complained of pain during his work duties, which involved gripping and twisting.
118 An x-ray of the left hand on 14 December 2015 showed the plate and screws with good bony alignment.
119 The plaintiff was advised to rotate his work so that he did not do gripping and twisting with his left hand all day.
120 When seen again on 4 January 2016, the plaintiff was concerned about his disfiguring dorsal hand scar and wanted it reduced. He requested an appointment with a plastic surgeon in that regard. He was later advised he could only reduce the width of the scar and make it appear slender, but could not eliminate it completely.
121 Dr Demirtzoglou noted the plaintiff still had some left hand pains with the overuse of that hand, especially with repeated gripping and twisting. He expected a favourable prognosis for the plaintiff relating to his left hand function, but poor prognosis relating to his perception of his scar.
122 Dr Demirtzoglou thought the plaintiff may require removal of his plates and screws in the future if he cannot tolerate them. He may have to have the scar reduction surgery to improve the appearance of his scar and hopefully make it more visually appealing to him.
123 Dr Demirtzoglou concluded the injury had affected the plaintiff’s ability to perform firm gripping and twisting. This could impact on his ability to perform certain domestic, gardening and leisure activities, including heavy lifting and gripping. He thought the plaintiff could perform most activities of daily living.
124 Dr Demirtzoglou noted the plaintiff’s hand scarring had caused him anxiety and depression due to its appearance, and the plaintiff hoped it could be removed surgically. He felt disfigured when the scar became noticeable to others.
Medico-legal evidence
125 Mr Ian Jones, orthopaedic surgeon, initially examined the plaintiff on the defendant’s behalf on 14 September 2014, re-examining him on 11 July 2016.
126 On re-examination, the plaintiff described symptoms involving his left hand in the form of a tired feeling. There were no particular symptoms of pain or loss of movements, even in the wrist fingers or thumb.
127 Mr Jones noted the plaintiff’s major concern was in relation to the scar on the back of his left hand, in relation to which he had been referred to a plastic surgeon, Mr Leong, in February 2016. However, discussions at that stage revealed that there would still be a remaining scar, although it could be reduced in size and the plaintiff had decided not to go ahead with further surgery.
128 The plaintiff told Mr Jones he tended to keep his left hand in his pocket when it was not in use and he was self-conscious. He described an occasional itchiness, for which he occasionally rubbed a cream into the scar. He confirmed he was not having any medication, or receiving any physical treatment.
129 Direct questioning revealed the plaintiff could manage all activities of daily living. He could drive a car, but mainly used his right hand. Mowing the lawn, he wore a protective glove for fear of his left hand being knocked and re-injured. He had also given up social soccer for the fear of injuring his hand.
130 The plaintiff told Mr Jones his work on the machine involved using both hands, but being right handed, he tended to use his right hand more than the left.
131 On examination, there was a full range of movement in all of the fingers. Objectively there was some slight sensitivity to touch in the region of the scar, and the power of grip in the left hand was assessed as normal.
132 Mr Jones noted there had been no change in the plaintiff’s condition involving his left hand since the last assessment. The major concern remained a hypertrophic scar over the dorsal aspect of the left hand, with slight sensitivity over the scar itself. The plaintiff described a vague, tired feeling involving the left hand generally.
133 Mr Jones noted the plaintiff had been left with a cosmetically concerning scar. The reported fractures had healed, as had the damaged extensor tendon. Mr Jones thought, from an orthopaedic perspective, the plaintiff had made an excellent recovery from his hand injury but had been left with a cosmetically concerning scar. Apart from that, there were no objective signs of any impaired function.
134 Mr Jones would not place any restrictions on the plaintiff in relation to the effects of the injury. He believed the plaintiff had fully recovered from the bony injuries which had healed in good position with no limitation of any of the movements of the joints in his hand.
135 Further, the scar, itself, would not place any limitations on any type of work the plaintiff may consider.
136 The plaintiff was examined on behalf of Allianz by Mr Marshall, Professor of Surgery, on 3 February 2015.
137 On examination, there was a full range of movements of the joints of the finger and hand. The plaintiff could make a full fist and extend his fingers completely. He was then not taking any medication.
138 Professor Marshall noted the extensive scar of the dorsum of the left hand and that the plaintiff kept his hand covered as much as possible and avoided situations where there might be a risk of injury.
139 The plaintiff was able to do his pre-injury duties but he tended to protect the left hand and avoided the risk of injury.
140 Professor Marshall noted scarring of the dorsum of the left hand and ring finger. He thought the scarring did not impact on activities of daily living.
141 Associate Professor Felix Behan, plastic and reconstructive surgeon, examined the plaintiff in February 2016 for the purposes of an AMA assessment.
142 On examination, Mr Behan noted the irregular scarring and wide separation was a distinct embarrassment for the plaintiff. He thought there was webbing across the metacarpophalangeal region in need of surgical release and Z‑plasty.
143 Mr Behan found sensory deficiency on the dorsum of the left hand where the scar was widely separated up to a centimetre at its midpoint. He noted the plaintiff had cold weather sensitivity because of neural changes.
144 Mr Behan noted the plaintiff’s range of movement was complete, a credit to the surgical team, with only a minor degree of strength loss of 26 kilograms compared with 46 kilograms on the right.
145 Socially, the scarring was relevant from an ethnic point of view, and that was a feature of severe embarrassment to the plaintiff, particularly as he had recently remarried. Industrially, Mr Behan repeated the plaintiff’s application to his job was a credit and he was continuing to work with his original employer.
146 Mr Behan noted the plaintiff was depressed in relation to the scarring and advised how he hid his hand in his pocket or sat on his hand as a consequence.
147 Mr Behan thought the injury had stabilised, but the scarring indicated a need for ongoing management.
The Defendant’s medical evidence
148 The plaintiff attended the Balmoral Avenue, Springvale, clinic on 16 and 23 August 2013 in relation to the incident injury.
149 The next attendance was on 16 December 2013, when the plaintiff attended with a sore throat. On examination, his left hand was red and swollen and there was marked reduction of movement of the left middle finger. Analgesia was prescribed.
150 On 1 and 4 December 2014, the plaintiff attended and discussed dietary issues.
151 On 24 November 2014, the plaintiff saw Dr Vu, complaining of epigastric pain.
Medico-legal examiners
152 Mr John Anstee, skin reconstructive surgeon, examined the plaintiff on 24 September 2013, some two-and-a-half months after the incident.
153 The plaintiff told Mr Anstee that while he had no pain in his left middle finger, it was stiff. The scar did not worry him and he accepted the internal fixation screws would be left there indefinitely.
154 Mr Anstee noted the plaintiff believed he had Panadol after the hand surgery but no longer look any medication. He might have had antibiotics after that procedure but did not remember the dose or the drug and he was presently having hand therapy.
155 Mr Anstee doubted there need be any limitation on the plaintiff’s present activities and noted he was back at his pre-injury work and said he was managing satisfactorily.
156 Mr Anstee thought the plaintiff was a cooperative man with a most positive approach to his injury and rehabilitation. The range of all digits was slightly reduced, the left middle finger being the most adversely affected.
157 There was a 120-millimetre long, up to 10 millimetre, scar running across the dorsum of the left hand, up the ulnar or little finger side of the left middle finger. Sensation was found to be normal.
158 Mr Antsee believed the plaintiff had had a good result from his hand surgery and noted he was pain free, but still having therapy.
159 Mr Antsee described a crush injury to the left hand, resulting in an open wound, damage to the extensor tendon at the left middle finger and a fracture of the proximal phalanx of the left middle finger. The plaintiff also had a fracture of the neck at the second metacarpal of the left hand.
160 Mr Antsee thought while there might be some improvement with the passage of time, the condition would not resolve completely. Noting the plaintiff was at work, Mr Antsee doubted restrictions needed to be applied and believed any activity which caused damage would cause damage in a normal hand.
Lay evidence
161 The defendant relied on three affidavits of Frank Anderl, who holds some role with the defendant, although it is not clear from his affidavits what that is.
162 In his first affidavit, Mr Anderl confirmed the plaintiff had two months off work after the incident and got back to normal full time duties, including overtime, on 16 September 2013.
163 In the 2013 financial year, the plaintiff worked on average seventeen hours a week overtime. In the 2014 financial year, he worked twenty hours. In the 2015 financial year, he worked twenty-six hours.
164 The plaintiff was not working under any restriction or modifications doing normal duties. He had not reported any issue with his work duties and had not reported any ongoing issue with his finger.
165 In his second affidavit sworn in July 2016, Mr Anderl noted the plaintiff was still employed by the defendant and working full-time normal duties without restrictions. He had not reported any difficulty with his hand or finger and/or his duties. The plaintiff did not behave in any way to suggest he was concerned or self-conscious of his hand.
166 In the current financial year, the plaintiff had worked an average of 24.15 overtime hours a week.
167 In his third affidavit sworn 6 September 2016, Mr Anderl confirmed the plaintiff was performing the same duties as prior to injury.
168 The drop in days worked from six to five came about as a result of production requirements and had nothing to do with the plaintiff’s injury. That change affected all production areas.
169 At no stage since the plaintiff was given a full clearance had he reported any ongoing issues with his hand.
170 Full containers are usually moved by the forklift drivers and pistons are replaced with the help of technicians. The defendant was not aware of any change in the way those activities were undertaken by the plaintiff since, or as a result of, the incident injury.
171 Smaller containers were used as a matter of course when there was a shortage of containers. Again, the defendant was not aware of any change in the way those activities were undertaken by the plaintiff since, or as a result of the injury.
172 The defendant has not seen or noticed the plaintiff dropping things at work and has not observed him while working, or during break times, being conscious of, or hiding his hand. The plaintiff has not been seen sitting on his hand.
Overview
173 There is no dispute the plaintiff suffered a compensable injury when his left hand was crushed in a machine in the incident.
174 The defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[36] such admission should ordinarily be regarded as very significant “… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct”.
[36][2006] VSCA 171
175 There is no suggestion of any functional element in the plaintiff’s presentation, nor is there any history of left hand problems prior to the incident.
176 The primary submission on the defendant’s behalf was that the consequences of any impairment of the left hand injury were not very considerable.[37]
[37]T41
Credit
177 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[38]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[38]Supra
178 Counsel for the plaintiff was critical of the “stark” differences between the plaintiff’s first and second affidavit with the latter being far more detailed, reading like a template indicia for pain and suffering. It was submitted there was, also, lack of contemporaneous corroboration in the medical reports of the matters described by the plaintiff in some detail in the second affidavit.[39]
[39]T46
179 It was submitted that the level of complaint and restriction set out in in the June 2015 affidavit was consistent with the medical evidence of the plaintiff’s condition prior to that date.[40] In this regard, reliance was placed on the history to Mr Antsee that the plaintiff was not taking any medication, the scar did not worry him and he was managing satisfactorily at work.
[40]T43
180 The lack of reference by the plaintiff in his first affidavit to keeping his left hand in his pocket was described as a serious omission and could be criticised as recent invention.[41]
[41]T44
181 However, I found the plaintiff to be a truthful, credible witness who gave a straightforward account of his pain and restrictions without embellishment. In my view, he is somewhat of a stoic, continuing to work long hours despite a significant injury.
182 As Nettle JA noted in Dwyer v Calco Pty Ltd (No 2),[42] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[42][2008] VSCA 260
183 Further, the plaintiff had in fact mentioned hiding his hand in his pocket when examined by Professor Marshall in early 2015 before he swore his first affidavit.
184 As I stated during the hearing, often the deficiencies in affidavits prepared on behalf of a plaintiff can be attributed to the skills of the drafter rather than there being any issues of credit on the plaintiff’s part.
Pain
185 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[43] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).
[43](Supra) at paragraph [3]
186 The plaintiff continues to experience pain, numbness and heightened sensitivity in the area of the scar. The pain tends to increase with prolonged, sustained or repetitive movements. For the last two years, on average his pain is 5 to 7 out of 10, which increases to 10 out of 10 during flare ups, or in cold weather.[44]
[44]T18
187 Mr Behan described a sensory deficiency on the dorsum of the left hand where the scar is widely separated. The plaintiff’s skin is sensitive to heat such as when showering or exposed to the sun. It is also sensitive to cooler water and weather because of the neural changes.
Treatment
188 The plaintiff has undergone all treatment that has been recommended. Following the initial surgery, he had hand therapy for two months. Scar revision surgery has been discussed with Mr Leong but not planned as the plaintiff has been advised it would not provide any significant improvement of the scarring.
189 I accept that the plaintiff is a man who simply gets on with his life and does not attend doctors on a frequent basis.[45] I accept this is the reason for the lack of attendances on Dr Vu after the August 2013 visits and the one visit in December that year. Further, I accept the plaintiff’s evidence that as his doctor could not help him further, he simply continued to take medication to deal with his pain.
[45]T52
190 Whilst Mr Anstee may have noted the plaintiff was not taking any medication three months after the hand surgery, when seen by Dr Vu, three months later on 16 December 2013, Dr Vu noted the plaintiff was having ongoing problems with swelling and redness of his left hand and marked restricted movement of his left middle finger. Analgesia was then prescribed.
191 As counsel for the plaintiff submitted, it could be inferred when seen by Mr Anstee in September 2013, the plaintiff had shown a very positive approach, following a very significant crushing injury and he was keen to get back to work.[46]
[46]T53
192 I accept the plaintiff continues to require over the counter painkilling medication for his left hand, taking six to eight Panadol per day. He also applies Voltaren Gel and Zatamil cream for scarring.
193 As Dodds-Streeton JA said in Kelso v Tatiara Meat Company Pty Ltd:[47]
“Secondly, the reasons for judgment fail to deal at all with the issue of, and evidence concerning, the appellant’s persistent pain, to which he deposed in three successive affidavits, and on which he was cross-examined. The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[47](2007) 17 VR 592 at paragraph [199]
Restrictions
194 Whilst there has been an excellent result from surgery, with a good range of movement achieved,[48] the plaintiff continues to have a number of ongoing problems with his left hand and fingers.
[48]T48
195 Whilst Mr Jones found the power of grip in the left hand was normal, earlier in 2016, Mr Behan noted on examination there has been a minor loss of strength in the left hand of 26 kilograms compared with 46 kilograms on the right.
196 The plaintiff has difficulty with gripping or pulling tasks due to loss of sensation in his fingers and weakness in his middle finger. These issues cause him at times to drop things as his family members have confirmed.
197 Recently the plaintiff had to pay someone to help him move house when previously he would have been able to undertake all the lifting required himself. Carrying heavy grocery bags in his left hand is a problem as his wife confirmed.
198 Because of the sensitivity of his skin in the wound area, the plaintiff is unable to hug his wife freely. They are also unable to engage in desired sexual activity because of the plaintiff’s hand pain.
199 The plaintiff’s hand pain causes him to wake at night if he rolls on his left side or at other times because his wife has knocked his hand.
200 The plaintiff has to take particular care when carrying his young daughter and engaging in any physical activities with her.
201 Undertaking tasks such as mowing the lawn, the plaintiff tends to wear a glove on his left hand for protection. Whilst mowing, he experiences hand pain and a sensation of numbness on the back of his left wrist.
202 Driving the car for extended periods causes the plaintiff left arm pain and he tends to drive mainly with his right hand.
203 Prior to the incident, the plaintiff had very limited hobbies which he undertook in the time he was not working. As a result of his injury, the plaintiff is unable to play the guitar, an activity he had enjoyed from a young age. Whilst he did not play soccer competitively and enjoyed having a social kick of the soccer ball before the incident, he no longer does so for fear of his left hand being hit by the ball.
204 As a consequence, the plaintiff misses out not only on the physical activity but also the social contact with friends.
205 As counsel for the plaintiff submitted given the plaintiff’s hobbies pre incident were limited, his inability to pursue them as a result of his injury is of greater significance to him.[49]
[49]T57
206 I accept that the plaintiff hides his left hand in his trouser pocket since the hand surgery. The reason for this is twofold - embarrassment at the scarring which is a matter more appropriately dealt with in an application pursuant to ss(c)[50] and also to protect his hand from further injury as a result of being knocked which is a relevant consequence for the purposes of this application.
[50]T50
207 As counsel for the plaintiff stated it was obvious that on a number of occasions, whilst in the witness box the plaintiff naturally put his left hand in his pocket and that was something he obviously does.[51]
[51]T50
Work
208 After three months off work following hand surgery, the plaintiff started on a graduated return to work and within a few weeks was back to normal tasks.
209 The plaintiff continues to operate the machines he operated prior to the incident. I accept however that he has required more assistance on a casual basis from fellow workers than was the case before the incident. Whilst he still helps fellow workers with their tasks, he does not do so to the same extent as pre incident.[52]
[52]T56
210 As counsel for the plaintiff submitted, fundamentally, as the plaintiff described, in his workplace there are a lot of people helping each other out, such evidence being quite consistent with the fact the plaintiff reports he cannot work as well as he used to.[53]
[53]T57
211 Counsel for the defendant submitted that the plaintiff’s ability to work significant overtime for a number of years, negates against him having serious consequences of either pain or sensitivity in his hand.[54]
[54]T50
212 In my view, the plaintiff is obviously a very hard working man. I accept that whilst his duties are essentially unchanged since the incident as Mr Arderl described and he continues to work significant overtime, the plaintiff still has problems with certain activities at work involving overuse of his left hand and gripping and twisting as Dr Demirtzoglou confirmed. In those circumstances, Dr Demirtzoglou has advised him to rotate his duties.
213 I accept that as a result of working long hours, the plaintiff finds that by the end of the day and particularly the end of the week, the level of fatigue in his hand – the tired feeling described to Mr Jones in July this year - has increased dramatically and he has to reduce his level of activity after work.
214 I accept that the plaintiff’s left hand and fingers cause problems for him in many aspects of his daily life. He constantly has to be careful what he does with his left hand and where he puts it for fear of knocking it and causing what at times is a severe stabbing pain. He has learned to improvise to some extent to minimise the intensity of his pain and try to get on with his life but significant problems continue.
215 Whilst counsel for the plaintiff conceded that this was not an easy case for the plaintiff,[55] taking into account all the evidence, I accept in their totality that the consequences of the plaintiff’s left upper limb impairment are serious and permanent.
[55]T58
216 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
217 Having found the plaintiff has a serious injury pursuant to ss (a), I am not required to consider the application under ss (b) in relation to disfigurement.
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