Turgut v Corex Plastics (Australia) Pty Ltd
[2016] VCC 1382
•20 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-15-04760
| ADEM TURGUT | Plaintiff |
| v | |
| COREX PLASTICS (AUSTRALIA) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 August 2016 | |
DATE OF JUDGMENT: | 20 September 2016 | |
CASE MAY BE CITED AS: | Turgut v Corex Plastics (Australia) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1382 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – right hand injury – paragraph (a) – serious injury – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] 15 VR 649; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Humphries & Anor v Poljak [1992] 2 VR 129; Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages in respect to right hand injury suffered in the course of his employment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S A Smith with Ms A Smietanka | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr I McDonald | Wisewould Mahony |
HIS HONOUR:
Introduction
1 Adem Turgut seeks leave or permission to start a proceeding for damages at common law against the defendant for pain and suffering under s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), saying he has suffered a permanent serious impairment or loss of a body function to the right hand.[1] Although, in his originating motion, he relied upon paragraph (c) of the definition of “serious injury” in s134AB(37), this was abandoned.
[1]Paragraph (a) of the definition of “serious injury” in s134AB(37)
2 Mr Turgut swore two affidavits and gave oral evidence. The parties tendered a number of documents, mainly medical reports.[2]
[2]Those reports relating psychological issues were not tendered
Circumstances
3 Mr Turgut was born and educated in Turkey. He graduated from a Turkish university with a teaching qualification and taught at a primary school. He married in 1979 and came to Australia in 1980 to join his wife who was already living here. He is now fifty-eight, with three adult children.
4 After arriving in Australia, he was unemployed for two or three months; thereafter, he has been continuously employed with only two employers. First, he worked at a factory of Clark Rubber until it closed in 1997, for a year as a general hand and then as a foreman. From 1998, he has worked for the defendant, Corex Plastics (Australia) Pty Ltd (“Corex”), first as a machine operator for ten years and then as a team leader and machine operator. He has completed industry courses including management courses to level 5. Corex makes plastic flute boards for use in fruit boxes, office boxes and signboards.
5 On 21 November 2013, Mr Turgut was working on the plastic extrusion line. While trying to remove a plastic sheet jammed in a guillotine, it cut off the tips of index and middle fingers of his right hand. He felt a strong, cold pain. There was a lot of blood. He was taken to hospital. The next day, under a general anaesthetic, his fingers were repaired by a plastic surgeon, Mr David Ying, using neurovascular island flaps from those fingers and full thickness skin taken from his right wrist. He saw Mr Ying fortnightly, then monthly, for about the first six months. He saw his general practitioner about monthly over that period. He was off work for the rest of November and the entirety of December, returning in early January 2014. From then until April 2014, he did light work on reduced hours. In April 2014, he resumed his full duties. For four or five months after the accident, he used strong pain-killing medicines, including Endone. He has not taken any further time off work except to attend appointments with hand therapists.
6 Pausing there. Mr Turgut’s job is a team leader and machine operator. He supervises the work of others. He arranges for casual employees to work after working out what is needed. He does general administrative work (for example taking telephone calls and accepting deliveries). As is usual for someone who leads a team of machine operators, he also does that work, which he describes as including “material handling, heavy work and the general machinery work”. He gave a fuller description of his work to Mr Joseph Slesenger, an occupational physician:[3] feeding hoppers with recycled and virgin plastic; feeding additives to the production process; loading and unloading pallets; monitoring production, and fixing machinery.
[3]Report dated 11 April 2016
7 For a little more than a year until 29 December 2014, Mr Turgut was treated by hand therapists, mainly, Sara Brito. He saw them eighteen times. At the last attendance, he felt there had been no improvement for a few months. The therapist thought his range of movement and strength had reached a plateau. Treatment stopped with the therapist’s advice that he could return if he was concerned or if he felt he was getting worse. He has not returned. The therapists gave him exercises to do at home, which he does. During his time with the therapists, some of their treatments were painful, as were some of the exercises he did after stopping with them.
8 Over the course of his attendances, the therapists sought to increase his grip strength and the range of movement of his injured fingers. At the last attendance, his grip strength was 28 KgF.[4] On 14 March 2014, it was 22.3 KgF, with a goal of about 46. Eleven days earlier, it had been 17.7 KgF, while on 31 January, it was 22 KgF.
[4]I believe KgF means kilograms force. I suppose “force” is used to show that it is grip strength which is measured and not lifting capacity.
9 In late 2014, Mr Turgut saw a psychologist for anxiety and depression.
10 Mr Turgut has not sought treatment for his right hand since December 2014 despite seeing his general practitioner since then for his left shoulder.
11 On 8 March 2015, Mr Turgut injured his left shoulder at work while using a large Allen key with both hands to undo a stiff bolt. He was put onto lighter duties. He should not reach above his shoulders, lift more than 5 kilograms and avoid repetitive shoulder work. These restrictions have removed some of his duties. He now sees his general practitioner about his left shoulder. He has had an ultrasound, an MRI scan and has been referred to an orthopaedic surgeon, Mr Christopher Pullen. He has constant pain in his shoulder. The diagnosis is a partial thickness tear of the supraspinatus tendon and subacromial bursitis with impingement on the left side. He receives regular physiotherapy. He takes modest painkilling medicines.
Injury
Description
12 No one asked me to look at Mr Turgut’s fingers. Instead, I saw three coloured photographs taken by or for Mr John Anstee in April 2015.[5] They depict the present appearance of his fingers. Both fingers are now shorter.
[5]Mr Anstee is a plastic and reconstructive surgeon. He examined Mr Turgut at the request of an authorised agent. His report, dated 2 April 2015, was admitted into evidence.
13 Dr Darrell Nam is a plastic and reconstructive surgeon. He examined Mr Turgut on 9 December 2015 at the request of his solicitors and said of the injured fingers:[6]
“… there are obvious deformities of the middle and index fingers of his right hand. The tips of his middle and index fingers are shortened. The index finger is shortened by 5 mm and the middle finger is shortened by 8 mm.
There are flaps on the tips of both index and middle fingers, consistent with the flap repairs, and each measures about 2 cm by 1.5 cm. There is a small full-thickness skin graft on the tip of the middle finger. He has a scar on the base of his wrist.”
[6]Report, dated 9 December 2015 at page 3
14 The shortening of each is small, less than a third of the distal interphalangeal joint. The flaps are described as Y-shaped scars. They are well healed. The scar at the base of his right wrist is where the skin was taken for the skin graft on the tip of the middle finger.
Movement
15 A number of specialists have examined Mr Turgut’s fingers. I have already mentioned Mr Anstee and Dr Nam. All looked at the effect of the amputations on the movement of those fingers. After examining each joint of the injured fingers and completing an impairment evaluation record, Mr Anstee concluded the range of movement of those fingers as much reduced. He found reductions in each joint but noticeably in the distal interphalangeal (DIP) of each finger.
16 Dr Nam compared the injured fingers with same fingers on the other hand and, assuming those had normal movement, he considered the movement of DIP reduced by 25 per cent. He also found a reduction in movement of the interphalangeal joint of the middle and ring fingers.
17 Dr Slesenger looked at flexion and extension of the DIP only and found a significant reduction in the flexion of each.
18 Mr Thomas Kossman is an orthopaedic surgeon, who examined Mr Turgut at the request of his solicitors on 22 April 2016. He found more flexion in the DIP joints than Mr Anstee, the same for the PIP joint and less for the MP joint.[7]
[7]PIP is the proximal interphalangeal and MP is the metacarpophangeal
19 Mr Damian Ireland is an orthopaedic surgeon, specialising in hand surgery. He examined Mr Turgut on 2 September 2015 and 1 June 2016 at the request of Corex’s solicitors. He found 10 degrees less movement in the DIP joints than Mr Anstee, while the other joints were normal.
20 Mr Clive Jones is an orthopaedic surgeon. He saw Mr Turgut on 23 May 2016 at the request of Corex’s solicitors.[8] He deferred to Mr Anstee and Mr Ireland on the description of the hand injuries. Mr Jones deferred to Mr Anstee and Mr Ireland on this issue. His only comment about movement appears in answer to Question (2), where he says there is a well preserved range of movement in the hand.
[8]His report, dated 4 June 2016, was admitted into evidence
21 Overall, I would adopt Mr Anstee’s view. He has the expertise. He looked at each joint. There was some agreement with his findings. He concluded the range of movement of each finger was much reduced. Mr Turgut is right-handed and these are important fingers along with the thumb.
Numbness
22 The existence of this numbness was an issue between the parties. Mr Ireland examined Mr Turgut twice and found normal sensation using the two-point discrimination test each time.
23 I have already referred to the hand therapists. The defendant’s solicitors obtained a copy of their file on the plaintiff. It records eighteen visits between December 2013 and December 2014. The last three visits are worth quoting:
(a) 29 December 2014: sensation very poor;
(b) 22 October 2014: still sensitive to deep pressure over finger tips;
(c) 6 October 2014: poor sensation in fingertips.
24 Dr Nam found reduced sensation to touch and abnormal two-point discrimination. Mr Anstee found much reduced sensation over the palmar surface of the distal phalanx of both fingers. Later in his report, he said there was no useful sensation. Dr Slesenger found 70 per cent reduction in sensation in the fingertips. Mr Kossmann also used the two-point discrimination test, found an abnormal distance of separation between points as more than 10 millimetres and concluded there was reduced sensitivity. Mr Jones found the “gross sensation” of the fingertips impaired.
25 As you can see, everyone except Mr Ireland found reduced sensation. Most of the evidence says there is numbness. Even Mr Ireland tried to explain Mr Turgut’s complaint of diminished sensation. In his report, dated 7 September 2015, he says:
“The worker describes diminished sensation in the right index and middle fingertips, however objective findings reveal normal sensation. The condition is best described as a neuropraxia of the digital nerves without objective evidence of sensory compromise.”
26 Although Mr Ireland does not speak of neuropraxia in his next report, I assume he maintains the diagnosis. Mr Ireland first saw Mr Turgut on 2 September 2015, nearly three months short of two years from the accident. If my assumption is correct, then there is little difference between the specialists. The numbness exists, is explicable on medical grounds, and is permanent.
Grip strength
27 Mr Turgut says he has less strength in his right hand because of the accident. This has caused me trouble for two reasons. First, although the records of his hand therapists reveal a loss of grip strength and their efforts to restore it, this alleged deficiency received patchy attention from the medico-legal practitioners. Dr Slesenger noted it. Mr Jones found it “markedly reduced” when compared to his left hand. Mr Anstee noted among Mr Turgut’s complaints an inability to lift more than 10 kilograms with his right hand. Apart from that, he makes no further mention of it. He did not, nor did anyone else, measure the loss. Mr Kossmann mentions it briefly under the heading “Present Complaints”. Dr Nam does not mention it in his report. Nor does Mr Ireland in primary reports but does so in a supplementary report. No one suggested any lifting restrictions for that hand.
28 Second, only Mr Ireland raised the non-organic cause of this issue. He did so when commenting on paragraph 24 of Mr Turgut’s first affidavit[9] where he said:
“I can offer no physical explanation for inability to use a vacuum cleaner or for any diminished grip strength with the right hand.”
[9]Affirmed 25 May 2015
29 Paragraph 24 says:
“Now, I find it harder to use the vacuum cleaner. I find it hard to hold onto it for a long time and my right hand gets tired. Before, I had no problems cleaning the home. Before, I had no problems lifting something weighing 40-50 kg in my right hand. But now, I find it really hard having the strength to do that with my right hand. Now, when I go shopping I tend to do smaller shops and I try to carry the shopping bags with my left hand.”
30 There was little oral evidence about this loss. At one stage, Mr Turgut said he could not hold things for too long. There was an oblique answer to questioning about gripping the galvanised channelling shown in the surveillance film where he said he could not lift very heavy things.[10] In re-examination, he spoke of an inability to lift a part of a machine which he lifted on his own before the accident. He also spoke of an inability to carry as many stacked sheets as before.
[10]Transcript at page 38
31 Is there a loss of grip strength and, if so, is it organically based? It was found and treated by the hand therapists over many months. Implicitly, they treated it as organically based. It was found by Dr Slesenger and Mr Jones in their examinations and noted without further comment. Mr Anstee noted the complaint but made no finding. One of the photographs accompanying his report shows Mr Turgut’s attempt to make a fist and a significant gap between the palm and the tips of the injured fingers. No one measured his grip strength using a dynamometer. Mr Turgut did not complain to Mr Ireland about it during either examination or to Dr Nam. In his supplementary report, Mr Ireland noted mild stiffening of the distal joints of the injured fingers and, later, said he could understand that he may have difficulty using a broad paint brush without saying why. Surely the why lies in the stiffening of the joints and the inability to make a proper, strong grip.
32 I accept Mr Turgut has this loss and it is organically based. The loss of flexion in the injured joints diminishes the ability to grip. The therapists worked at increasing strength and they were successful up to a point. Implicitly, they treated it as organically based for a year. Corex did not deny its existence or specifically argue for its non-organic origin.
33 This then takes me to another issue: what is the extent of the loss. Mr Turgut speaks of finding it really hard to lift 40 to 50 kilograms without saying that he cannot. He told Mr Anstee he cannot lift more than 10 kilograms. Mr Jones said the loss was marked. By the end of 2014, one of the hand therapists found his grip strength well below normal. If normality was his non-dominant left hand, which was 42 KgF in January 2014, then it was about two-thirds of its pre-injury strength. Two-thirds is a significant decline in the strength of his grip in his dominant hand. One supposes the strength of his dominant hand would have been greater than the non-dominant, especially where his job was semi-manual. However, Mr Turgut did not tell Mr Nam or Mr Ireland about it. He told Dr Slesenger, Mr Anstee and Mr Jones but none measured the loss where, if it was significant, one would expect them to do so. The surveillance film shows him carrying shopping bags in both hands without any sign of favouring the left hand. However, the surveillance was recent, coming after the injury to his left shoulder.
34 The loss of grip strength does not affect most tasks. It prevents very heavy lifting and holding onto a vacuum cleaner for a long time. Even though his work has many manual aspects and it is his dominant hand, properly viewed, the effect of the loss is modest.
Complaints
35 As I said earlier, Mr Turgut swore two affidavits and gave oral evidence. One way or the other, he told me a number of things. His injured fingers are stiff but not painful. There is numbness at their tips. Sometimes, his right hand is cramped and stiff. These fingers are weaker and it is hard to make a fist. He has lost strength in his hand. He finds it harder to garden. Being right handed, Mr Turgut naturally tries to do things with it rather than his left. When he does, it is harder to pick up small things, open cans, do up buttons or zips. His wife helps with buttoning shirts most of the time. It is harder to grip or hold things in that hand. He cooks but cutting is difficult. He wears mesh gloves when filleting fish and cutting meat. Using cutlery presents difficulty, which is embarrassing in public. Sometimes he breaks glasses while washing up. These limitations are a blow to his pride.
36 His sleep is interrupted. Once awake, it takes time for him to go back to sleep. His loss of feeling in the fingers makes him nervous and it affects his sex life.
37 Before the injury, he could tell the quality of a plastic sheet by running the injured fingers over it. He has lost this ability and has not replaced it with his left hand. Now he favours his left hand. Sometimes, he feels pain in it and his left arm. He still works with guillotines but is apprehensive.
38 Before the accident, Mr Turgut hunted goats, hares and rabbits with his rifle on most holidays including long weekends. He does not now. He still goes camping with his family despite some of its activities are harder to do. He fishes rarely. In the last fifteen or sixteen months he fished once. He struggles to bait a hook. He uses live bait.
39 He and his wife have moved to a smaller home due, in part, to downsizing. Only one of his three adult children is still at home. His former home was very large. To an extent, the move was due to his inability to maintain the home. He gave three examples. Before his injury, he painted his home. After, he could not control a paint brush as before and hired a painter to do so. Mr Turgut uses the word “control” in his affidavit, which I assume means his ability to direct it. Mr Ireland notes he may have difficulty using a “broad” paint brush. If the deficit is in control, then it would not matter whether the brush was broad or slim. If he paid someone to the job, then his inability is genuine.
40 He gave other examples. First, he found it hard to do small jobs that involved using a screwdriver or hammering in nails. Although Mr Ireland could not explain this physically, it is likely to be tied up with control. Screw driving is as much an exercise in placing the head of the screwdriver in the right place; similarly, hitting a nail. Second, he finds it hard to cutting while cooking and using cutlery, especially a knife, while eating. Sometimes, he drops the knife. This is embarrassing if eating out. He uses mesh gloves when filleting fish and cutting meat. Third, he finds it hard to pick small things up, like, a coin lying on the floor.
41 At his previous home, Mr Turgut had an open fire. He enjoyed sitting in front of it. He chopped his own wood, three to four tonnes each year. After the injury, he tried to chop wood a couple of times but found it hard to manage. In his new home, there is ducted heating. This deprives him of the enjoyment of sitting in front of an open fire, which he found relaxing and therapeutic.
42 He speaks of loss of feeling and strength in his right hand. The former leads to breaking glasses sometimes while washing up; the latter, with vacuuming and lifting weights of 40 to 50 kilograms. His hand tires holding onto a vacuum cleaner for a “long time”. He finds lifting those weights “really hard”. He still uses his right hand but when shopping, he now visits smaller shops, buys less and carries the shopping bags with his left hand.
43 After the injury, he found it hard to cover his fruit trees with netting to stop birds from eating the fruit and tending his vegetable garden, saying he is unable to use his hands as before.
44 In a way, Mr Turgut links sleeping difficulties with the injury. Implicitly, before the injury, he slept well. After, he wakes up many times and then takes a long time to go back to sleep. He says: “I am not sure why this is. I believe it is because of the stress I am having.” He acknowledges his shoulder injury can affect his sleep also.
45 In relation to his sexual activity with his wife, the loss of feeling in those fingers makes him nervous and upset. Sometimes, it affects his relationship with his wife.
46 Mr Turgut describes himself as a very proud person. He took pride in doing his job and doing things at home. At work, he liked people watching him and admiring his skills. Even though he continues in the same work, he believes people no longer admire his skills. These things stress him. He finds it hard concentrating and he often forgets things.
47 Nowadays, Mr Turgut takes Panadol when he has tightness and stiffness in his fingers. He also uses Panadol and other lesser painkilling medicines for his left shoulder.
Surveillance
48 Someone, on behalf of Corex, watched Mr Turgut on two occasions and tried on a third unsuccessfully. He was seen on Saturday, 12 March and Wednesday, 16 March 2016. The length of the surveillance totalled 11 hours. This produced about 13 minutes of film. I do not know what the remaining 10 hours and 47 minutes showed but, from Corex’s perspective, it must not have helped its defence.
49 I watched the film in the courtroom and, privately, since reserving this judgment. It showed no reluctance to use the right hand to open the tailgate of his car and pick up and carry items including plastic shopping bags. Because so much of the film was missing, the film I saw had only minor value.
Legal considerations
50 In deciding in this case whether to give leave or not, these matters govern my decision:[11]
[11]For the purposes of this application, there is no dispute Mr Turgut satisfies the opening words of ss(1) of s134AB.
(a) the “injury” must be a “serious injury” as defined in s134AB(37) and in Mr Turgut’s case, it is a “permanent serious impairment or loss of a body function”;
(b) the body function alleged to be impaired or lost is the right hand;
(c) the impairment or loss of a body function due to the injury is permanent, which means in this context, likely to last for the foreseeable future;[12]
[12]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]. Again, there was no dispute his impairment was permanent.
(d) the term “serious” is satisfied for Mr Turgut by reference to the consequences of his impairment or loss of body function with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of a body function;[13]
[13]Section 134AB(38)(b)
(e) the “pain and suffering consequence” of an injury encompasses both the plaintiff’s experience of pain and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life;[14]
[14]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [9]
(f) an impairment or loss of a body function is not serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;[15]
[15]Section 134AB(38)(c)
(g) in this case, I must not take into account psychological or psychiatric consequences of the injury;[16]
[16]Section 134AB(38)(h)
(h) I must assess whether the injury is serious as at the time the application is heard;[17] and
(i) whether an injury is serious is largely a question of impression or value judgment.[18]
[17]Section 134AB(38)(j)
[18]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628, paragraph [192]
51 Where the plaintiff relies on paragraph (a) of the definition of “serious injury” and not paragraph (c), then s134AB(38)(h) requires me to ignore the psychological or psychiatric consequences of a physical injury. The operation of paragraph (h) was examined in Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis.[19] I will quote part of what Maxwell P said in paragraph [9] of his judgment:
[19](2007) 15 VR 649
“(2) … so far as the evidence allows, the court must identify, and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or physical basis.
(3) The court must therefore exclude any pain and suffering consequences which result from or are a manifestation of:
· any recognised psychiatric condition (for example depression, adjustment disorder);
· chronic pain syndrome or disorder;
· functional overlay;
· exaggeration of symptoms, whether conscious or unconscious; or
· any other aspect of the injured person’s psychological response to the physical injury.”
52 In Stijepic v One Force Group Pty Ltd,[20] the Court disagreed with approach of a judge of this Court in dealing with the words “when judged by comparison with other cases in the range of possible impairments or losses of a body function … fairly described as being more than significant or marked, and at least as being very considerable”. In his analysis, the judge referred to the circumstances of two of the cases looked at by the Full Court in Humphries & Anor v Poljak.[21] The Court doubted the usefulness of this approach, saying:[22]
“… In addition to the two cases to which his Honour adverted there are in our experience many others where very similar fact situations have produced a different outcome. The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”
[20][2009] VSCA 181
[21][1992] 2 VR 129
[22]At paragraph [42]
53 In examining the pain and suffering consequences of an injury, counsel referred me to a comprehensive list of factors set out by Maxwell P in Haden’s Case.[23] The passages are too long to quote in full in this judgment. However, some are particularly relevant in this case:
[23](Supra) at paragraphs [10] to [17]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
…
...
…
What the objective evidence shows about the disabling effect of the pain.[24]
…
As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.[25]
…
… The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed ha[s] been closed off to [him or her].”[26]
[24]At paragraph [11]
[25]At paragraph [13]
[26]At paragraph [15]
54 The counsel for Corex raised Jones v Dunkel.[27] He submitted I should draw an adverse inference against Mr Turgut from his failure to obtain a medical report from the treating surgeon, Mr Ying. I believe the law in this State concerning the failure of a party to call a witness is set out in the joint judgment in O’Donnell v Reichard:[28]
“… where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that party’s case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely: (a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken.”
[27](1959) 101 CLR 298
[28][1975] VR 916 at 929
55 Substituting a failure to call a witness to give oral evidence with the failure to obtain a report from a treating doctor,[29] I would expect a report from the treating surgeon to form part of the reports relied upon by Mr Turgut. In effect, his counsel sought to explain the absence by minimising the injury: “that some Jones v Dunkel inference should be drawn from the failure to have a report from the treating surgeon where a man has had the top of two fingers cut off, is somehow of significance, is misplaced”.
[29]I note clause 77 of Practice Note PNCL 1-2016 says, in part: “It should be noted that when including medical reports in a Court Book, those reports which provide the most assistance to the Court are those from treating practitioners … .”
56 The absence is significant for the existence of numbness is a disputed fact as are the limits upon Mr Turgut’s ability to do things, at work or elsewhere. The inclusion of the operation report is immaterial.[30] Apart from being difficult to understand, it does not help me on those issues.
[30]Plaintiff’s Court Book at page 68
Discussion
Credit
57 The only oral evidence came from Mr Turgut. He was cross-examined extensively. The defendant raised his credit as an issue. He gave evidence with the help of an interpreter. His counsel invited him to give evidence in English and seek help from the interpreter when in difficulty. He did seek such help from time to time. Most of his evidence was given in English. His speech was accented and occasionally hard to understand. The difficulty of using an interpreter when needed arose here. On one occasion he changed his evidence due to his misunderstanding of an earlier question.
58 Corex raised other instances relevant to his credit. On 14 July 2014, a hand therapist noted him saying he fished almost fortnightly. In cross-examination, he explained this as meaning what he did before the accident, not since. This is plausible. Again, saying to Mr Kossmann “he still does a little bit of fishing” is too vague to mount a challenge to his credit.
59 Again, Mr Turgut saw Mr Ireland twice. Each time he spoke about his left arm. The first was brief and concerned his forearm. The second, nine months later, is far more extensive and dealt with his shoulder, with Mr Ireland noting his left forearm pain had settled. The difference in detail is due to the varying nature of the complaint. By June 2016, Mr Turgut had had an ultrasound, referred to a specialist who recommended surgery. The difference in detail reflects the different injuries and how they were treated. It does not affect his credit.
60 I have noted an aspect of the surveillance film and the carrying of shopping bags. I do not think it affects his credit.
61 What I saw and know of Mr Turgut points to honesty. I consider him a truthful witness.
The injury
62 As amputations of fingers go, Mr Turgut was fortunate with only the tips of each finger removed. This much can be seen in the photographs. Undoubtedly, the impairment or loss is permanent.
Pain and numbness
63 The unusual feature is Mr Turgut does not feel any pain in his injured fingers or his right hand. Based on my experience and reading judgments in this area, the usual feature is pain in some part of the body. What he experiences is numbness at the tips of those fingers and stiffness or loss of movement in them, especially the DIP joint. Nothing is prescribed for this physical effect. His hand has not been treated since December 2014. He sees a doctor monthly, who prescribes Pristiq for his stress, and a psychologist almost as frequently for the same reason. The complaint of stress and the fact of those visits I must ignore. The numbness is permanent. As two of the practitioners noted, it exposes Mr Turgut to touching hot things without realising and suffering injury.
64 The next thing to note is Mr Turgut returned to work after the accident and did for a while the same work he did before the accident. Unfortunately, nowadays, there are fewer workers in his team and he works harder as a result. Until his shoulder injury, he did things he did not do before the accident (for example driving a forklift). After the shoulder injury, he is doing less. He was then and is now a team leader and machine operator. From the perspective of his work, the injury has made writing harder, doing the paperwork of his job, picking up small things like nuts and bolts and feeling the quality of plastic sheets. Although there was no evidence of the amount of paperwork he does, given his description of his tasks, I would infer relatively little. He does not lift very heavy things. He once favoured his left arm, causing some pain. But the shoulder injury has stopped that. He tried his left hand to “tell” the quality of plastic sheets but that did not work. He has gone back to his right hand but it takes longer. He avoids the guillotine which injured him. He works with other guillotines which make him a “little bit scared” and a “little stressed”. Mr Turgut’s counsel submitted:[31]
“Whilst Your Honour can’t conflate psychiatric injury or psychiatric impediments with physical impediments in assessing the serious injury, adverse psychological consequences can form part of Your Honour’s consideration.”
[31]Transcript at page 71
65 In view of the broad statement of principle of Maxwell P in Stamboulakis,[32] this submission cannot be correct. I cannot consider Mr Turgut’s fear, stress, avoidance and frustration in determining whether he has a serious injury under paragraph (a).
[32]At paragraph [9]
66 Nowadays, there are fewer workers in Mr Turgut’s team due, perhaps, to economic factors. As a result, he works harder. His left arm injury reduces his ability to rely on it when he would like to do so.
67 Part of his complaints in 2015 and 2016 concern his left shoulder. The injury to his shoulder may have been caused by an incident at work on 8 March 2015 while he undid a bolt using a large wrench. His counsel submitted the only way I could consider this injury in this application was:[33]
“If a man presents to this court with an impaired left arm and his claimed injury is to his right hand the impairment of that right hand, within the context where his left arm suffers from sudden impairment or restriction, takes on an even greater significance.”
[33]Transcript at page 79
68 There is truth in that submission and Mr Turgut’s re-examination explored it up to a point. Owing to his hand injury, he tried to undo the bolt differently.
69 If one ignores the injury to his left arm and its restrictions and the psychological effects of the hand accident, then, when viewed broadly, the injury has had a moderate impact on his ability to do the work he did before the injury. But that impact is increasing through his left shoulder injury and the decrease in the size as his team. He works harder now with less.
70 The injuries inhibit some of his social and recreational activities. The numbness affects buttoning shirts and picking up small things. It affects his fishing through the difficulty in baiting a hook properly. But fishing is now something denied to him through his shoulder injury. He has given up hunting. He goes camping infrequently now for he cannot do some of the activities associated with camping on his own, he needs help. I have understood maintenance and domestic jobs in the home in terms of control. His sleeping difficulties are caused by stress or his left shoulder injury. In either case, I must ignore each for different reasons.
71 The notions of control and self-reliance appears in Mr Turgut’s evidence. It is used in the context of doing something properly. Before the accident, he did things properly. He expresses it as pride; his counsel, as independence. I can understand his unwillingness to fire his rifle, paint, use a hammer or a screwdriver. Since he could not do any properly, he stopped. Mr Ireland was puzzled because using the trigger does not involve the fingertips, it requires flexion of the middle joint of the index finger. During cross-examination, it emerged that he touches the trigger very near to the tip of his index finger, which is affected by numbness. This lack of feeling affects his ability to fire quickly enough to hit his target. I suppose there are unorthodox ways of firing rifles and this is one of them. However, it is surprising he has not changed his method of firing to the orthodox instead of giving up. Given his unorthodox way of firing a firearm, I am surprised he has not retrained himself with an orthodox way of firing. The loss of this pastime must not be as great as he maintains. When pressed in cross-examination about chopping wood, Mr Turgut spoke of using a chainsaw. When pressed about it, he spoke of vibration. I do not see that chopping wood presents a real problem, especially since his new home does not have an open fire or a wood heater.
72 However, his injured left shoulder tends to overshadow social activities. He has fished only once in the last fifteen or sixteen months. He has camped once in the last sixteen to eighteen months. His shoulder injury encompasses both periods. The effects of the shoulder injury prevents those activities rather than the hand injury.
73 The state of his fingers affects Mr Turgut’s intimate relations with his wife. This is a delicate issue and, understandably, everyone was reluctant to delve into it. There was one question in cross-examination and a few in re-examination. His intimate relations with his wife are important to both of them. His injury reduces their enjoyment and, in an undefined way, their relationship.
74 Although Mr Turgut has had no treatment for his hand since December 2014, this is of no moment for he believed, reasonably, nothing more could be done. Such medicines he took could be obtained without a prescription.
75 Age can be important. To a twenty-five year-old, these injuries carry many years of pain and suffering consequences. To Mr Turgut, at fifty-eight, the length of these consequences are much less. However, one supposes he has many years to live and a number of years still in employment.
76 Mr Turgut’s counsel submitted he was stoical. I have quoted from the judgment of Maxwell P from Haden’s Case on the point. The passage is really a warning not to underestimate the pain and suffering consequences of a stoical person. He has abandoned pastimes which have become difficult but stoicism has nothing to do with pleasurable activities. Until his shoulder injury, he persisted in his pre-injury duties with some restrictions. He stills works with guillotines while avoiding the one that injured him. I would imagine he is a valuable employee to Corex. He is intelligent, experienced, personable, loyal and hardworking. He is stoical. I have strived not to underestimate his pain and suffering consequences.
Conclusion
77 The legislation imposes a stern test to be passed before someone has a “serious injury”. In two paragraphs of s134AB(38), Parliament emphasises two things relating to the pain and suffering consequence of an impairment or loss of a body function:
(a) the pain and suffering consequence must be fairly described as being more than significant or marked, and as being at least very considerable;
(b) the description in (a) follows a comparison with other cases in the range of possible impairments or losses of this body function.
78 Because of the abandonment of his claim under paragraph (c) of the definition of “serious injury” in s134AB(38), I cannot consider any psychological affect. Because the body function is the right hand, I largely exclude considering the injury to his left shoulder. Mr Turgut’s counsel took me to Tatiara Meat Co Pty Ltd v Kelso[34] where Mr Kelso lost the tip of his right thumb. I have also looked at a number of cases of judges of this Court dealing with hand injuries. I have drawn on my experience dealing with cases where statutory benefits are sought.
[34][2010] VSCA 12
79 The dominant features are permanent numbness and loss of grip strength. They cause employment consequences. They cause social consequences including his intimate relations. These add up to consequences which are more than significant or marked and at least very considerable.
80 I consider Mr Turgut’s injury is serious and will give him leave to commence a proceeding for damages for pain and suffering only.
81 I will hear the parties on the question of costs.
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