Vaughan v VWA
[2024] VCC 1527
•11 October 2024
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-05394
| MICHELLE VAUGHAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSIKARIS | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 2 July 2024 | |
DATE OF JUDGMENT: | 11 October 2024 | |
CASE MAY BE CITED AS: | VAUGHAN v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1527 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages - serious injury application – injury to the right thumb and hand – disfigurement of the right thumb – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited: TTB SMS v Reading [2020] VSCA 203
Judgment: Leave granted to the plaintiff to commence common law proceedings for pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison KC with Mr A Dimsey | Stringer Clark Lawyers |
| For the Defendant | Ms F Ryan SC with Ms M Williams | IDP Lawyers |
HER HONOUR:
Introduction
1This is an application for leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff at work on 24 July 2019 in which her right thumb got caught in machine rollers.
2She seeks leave to commence proceedings for pain and suffering damages only.
3The plaintiff brings this application pursuant to clauses (a) and (b) of the definition of “serious injury” to be found in s325(1) of the Act. There “serious injury” is defined relatively as meaning:
(a) permanent serious impairment or loss of a body function.
(b) permanent serious disfigurement.
4The body function relied in this case is the loss of function of the right thumb and hand.
5The relevant legal principles are well-known and are not in dispute.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By s325(1)(c) of the Act, the plaintiff’s right thumb and hand must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments or disfigurements, as the case may be, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9The plaintiff relied on two affidavits affirmed on 23 May 2023 and 19 June 2024, and an affidavit from her partner Calum Steel sworn on 17 June 2024. In addition, both parties relied on medical reports and other material which was tendered in evidence.
10I have read all the tendered material and I will refer to the relevant evidence to the extent necessary in these reasons.
The issues
11The issue for determination is whether the plaintiff’s pain and suffering consequences meet the “very considerable” threshold required by the legislation.
Background
12The plaintiff was born in Warrnambool in October 1975 and is almost 49 years of age. She has two children and a partner, Calum Steel.[1]
[1] Affidavit of Michelle Louise Vaughan affirmed on 23 May 2023, Updated Joint Court Book (‘JCB’) 5
13She was raised on a dairy farm in Warrnambool and undertook her secondary education at Warrnambool Tech leaving after completing Year 11. She then worked on a dairy farm for a few years before returning to work in 2003 at a meatworks in Warrnambool following the birth of her two children.[2]
[2] Ibid [2]-[3]
14The plaintiff moved to Ballarat with her family and obtained part-time work at Safeway for about 5 years. She also studied massage and worked as a self-employed masseur specialising in sports and remedial massage, until about 2013. She then worked at the Rivers factory for about 9 months before it shut down. She commenced work with Hakubaku Australia (‘the employer’) making noodles as a factory worker. She worked a 38-hour week with some overtime and was earning about $800 per week before tax.[3]
[3] Ibid 6 [4]-[5]
15Before her injury the plaintiff had suffered a fracture in her left foot in a horse-riding accident from which she made a complete recovery. She is otherwise in good health and has no significant other health problems.[4]
[4] Ibid [6]
16On 24 July 2019 the plaintiff was working in an industrial complex and cleaning some rollers which were involved in manufacturing food. The rollers somehow commenced operating, and her right thumb got caught in the rollers. A staff member drove her to St John of God Hospital where her wound was stitched up and she remained in the ward overnight. The next day she had surgery to repair her crushed thumb.[5]
[5] JCB 6 [7]-[8]
17She was off work for a few months and then was on lighter duties for a few months before returning to normal work. The plaintiff left her employment with the defendant in 2021 as she did not feel comfortable around the machinery and started working at her current work with Luv-a-Duck as a packer.[6]
[6] Ibid 7 [9]
18She had hand therapy after her surgery to improve the use of her hand and thumb. She continued this until it was interrupted by COVID in 2020.[7]
[7] Ibid [10]
19The plaintiff currently works with Luv-a-Duck on a full-time basis but has now moved to the production floor. Her work involves handling duck meat which is refrigerated and cold to touch. Her right thumb is very sensitive to cold and pressure, and she has to wear three pairs of gloves to protect her right thumb. She tends to rely on her left hand as much as possible because her right hand is often in pain when her right thumb is bumped.[8]
[8] Ibid [12]
Lay evidence
20The plaintiff’s partner, Calum Steel, deposed that he and the plaintiff have known each other for about 30 years and currently live together.[9]
[9] Affidavit of Calum Steel sworn on 27 June 2024, JCB 13 [1]
21He taught the plaintiff how to repair and service her car. Before her injury the plaintiff would service her own car and did her own touch ups and repairs on her car. Since the accident, the plaintiff did not really do any work on her car anymore as she has trouble holding tools like spanners and screwdrivers and could not apply any pressure to them. He did all the car servicing now, except topping up the water, which the plaintiff could still do.[10]
[10] JCB 13 [3]-[4]
22Mr Steel deposed that the plaintiff used to love massaging and would massage friends and family which she now could not do. She used to enjoy doing her tapestry most nights to unwind, but now she did not do it.[11]
[11] Ibid 14 [5]-[6]
23He does all the chores around the house including hanging the washing, mopping the floors, and cleaning the dishes as the plaintiff avoided doing any chores that require her to grip onto something. She had trouble gripping onto dishes, and often dropped plates, glasses and bowls, causing them to smash and needed to be replaced. Mr Steel also has to help the plaintiff by tying her shoelaces and tying her hair in a tight ponytail before work.[12]
[12] Ibid [7]-[9]
24He observed that since her injury, the plaintiff has really been limited in what she can do because of the loss of feeling and function in her thumb. She was in pain when cold and wore gloves to keep her hands warm.[13]
[13] Ibid [10]-[12]
Medical Evidence
25Dr Nik Kozlov, general practitioner, saw the plaintiff post operatively on 2 January 2020 and reviewed her again on 18 November 2021. He noted she sustained a crush injury to the right thumb distal phalanx, and she underwent a surgical reconstruction. She suffered a post-traumatic contracture and post-traumatic osteoarthrosis of the distal interphalangeal joint. He did not consider her fit for pre-injury employment due to physical and psychological consequences.[14]
[14] Ibid 16
26He noted she had developed stiffness in the distal interphalangeal joint of the right thumb and weakness of the pinch grip as a consequence, with reduced ability for fine movements in the right hand, particularly her thumb. She had to remodel the way she could use her right hand to perform certain things. Dr Kozlov did not believe that her physical injury caused significant impact on her social, domestic and recreational activities.[15]
[15] JCB 16
27Mr John Anstee, plastic and reconstructive surgeon, examined the plaintiff for medico-legal purposes on behalf of the plaintiff on 28 June 2023. In his report he outlined a number of complaints experienced by the plaintiff namely:[16]
(a)She drops items she has in right hand;
(b)She finds it harder to comb and brush her hair;
(c)Buttons are harder to do up and zips are awkward;
(d)She files her thumb nail rather than cutting;
(e)She does not wash the dishes because she drops them; and
(f)Right hand tasks are harder and sometimes impossible.
[16] Ibid 19
28Mr Anstee described the plaintiff as pleasant and cooperative who made no attempt to exaggerate her “not insignificant problems”.[17] He observed a wound running down the radial side of the right thumb extending across to the ulnar side giving the appearance of a flap about 20mm x 30mm, which was raised. The circumference of the right thumb pulp is 62mm compared to the left which is 57mm. Both hands were work stained, but the right thumb was not. He expressed the opinion that the plaintiff had a significant injury and despite appropriate treatment was left with significant incapacity. The plaintiff returned to pre-injury duties and then subsequently found employment with Luv-a-Duck where she was working full-time and coping, but she avoided heavier work and was still plagued by numbness and tingling in the right thumb.[18] Right-handed tasks were made more difficult. She had a significant measurable impairment. The fact she was back at work full-time was a tribute to her attitude rather than to the severity of her injury.
[17] Ibid
[18] Ibid 20
29Mr Scott Mason, orthopaedic surgeon, was the treating surgeon and was of the view the plaintiff would return to full duties.[19]
[19] JCB 29
30Dr David S Elder, consultant in the speciality of occupational and environmental medicine, examined the plaintiff for an impairment assessment on 21 March 2022 on behalf of the defendant. He observed some abnormal illness behaviour as she held her right hand in front of her with her thumb in a thumbs up position as well as altered sensation which he described as non-anatomical.[20] Nevertheless, after conducting an examination, he accepted there was continuing dysfunction relevant to the original injury treated surgically with no sequela of the scarring.[21]
[20] Ibid 33
[21] Ibid 34
31The plaintiff was assessed by the Medical Panel and in its ‘Reasons for Opinion’ dated 22 November 2022, the Panel detailed the plaintiff’s symptoms, treatment and functional status. Based on the history of the mechanism of injury, the treatment and progress of symptoms, in conjunction with the medical imaging results, the Panel concluded the plaintiff was suffering from persisting right thumb dysfunction and scarring following the crush injury which was surgically treated.[22] The Panel disagreed with Dr Elder as it accepted that the plaintiff had sustained a sensory impairment as a result of the injury, and it also made an allowance for scarring in its impairment assessment.[23]
[22] Ibid 43
[23] Ibid 45
The parties’ submissions
Plaintiff’s submissions
32It was submitted on behalf of the plaintiff that:
(a)The plaintiff has pain which is made worse if pressure is put on the end of her thumb, which is a sharp and tingling sensation, and worse in the cold and after forceful or repeated use. She now relies on her non dominant hand and avoids using her right hand where possible.
(b)The right thumb nail is curved and grows differently. She has allowed the nail to grow to give her some protection.
(c)Although she did not perform paid masseur work, she did massage her partner, and her partner confirms that the massaging is a loss to her as she is no longer able to do this.
(d)The plaintiff has trouble with domestic tasks such as cleaning and had lost manual dexterity. She drops china and cooks less. She cannot do up laced shoes. She relies on her left hand for toileting, showering, dressing, her hair. She has lost the ability to work on her car, use the whipper snipper, or work in the garden. She no longer can do her tapestries and cross stitch.
(e)Mr Anstee confirms that the plaintiff’s ability to perform tasks with the right hand has been made more difficult. He also confirms she experiences numbness and tingling in the right thumb.
(f)The plaintiff is stoic and should not be penalised by treating her injury as less serious simply because she is willing to endure the pain and remain more active than another plaintiff might.
(g)She has found work in circumstances where she does not have a range of employment options given her training.
Defendant’s submissions
33The defendant submitted that:
(a)The X-ray of the thumb revealed no fracture, and the diagnosis was a crush injury and the consequences of the crush injury at the date of hearing do not meet the threshold, although they may be troubling.
(b)The plaintiff only takes over the counter pain relief medication intermittently, infrequently and irregularly. She has no treatment and her treating surgeon, Mr Mason in 2020 said her prognosis for full recovery was good.
(c)The plaintiff left work with the defendant because she was not comfortable at the place of work following her injury and not for reasons connected with her injury.
(d)The plaintiff has retained the ability to perform full-time pre-injury duties including manual work. She uses both hands although relies on the left more. Mr Anstee agrees she can perform her pre-injury duties.
(e)Dr Koslov observed that that the plaintiff’s physical injury does not cause a significant impact on her social, domestic and recreational activities.
(f)The Court was referred to TTB SMS v Reading [2020] VSCA 203 (which involved an injury to 2 fingers of the dominant hand), and it was submitted that the plaintiff does not suffer from other types of physical impairment such as constant pain, significant medical treatment, medication, sleep deprivation, or an inability or reduced ability to socialise. The massage work did not feature largely in the plaintiff case as she had not done it in the six years prior to injury.
(g)Although the plaintiff has some pain and functional impairment, it does not meet the “very considerable” test
Credit
34There was no challenge to the plaintiff’s credit. I agree with Mr Anstee’s observation that she was a pleasant and cooperative woman. She struck me as genuine, and I gained the impression that she was stoic and someone who downplayed the severity of her symptoms. Again, my observations were not dissimilar to those of Mr Anstee who thought that although she was back at work full-time, this was more a tribute to her attitude than a reflection on the severity of her injury.
35She made appropriate concessions in cross-examination in that she conceded she had not worked and earned any income as a masseur since 2013 and in recent times the only massage she did was for her partner. She conceded that at work she used her right hand in a support role now and again.
36The plaintiff’s credit was unimpeached and therefore her evidence and affidavit could be relied on entirely in terms of the consequences that she detailed.
Impairment consequences
Pain
37The plaintiff deposed to having pain in her dominant right thumb whenever she felt pressure on the end of the thumb. The pain was worse when her hand was cold and after using it forcefully and repeatedly. She has difficulty coping at work due to the pain and she often dropped things if using her right hand. She had pain on resting but if she knocked the thumb, the pain was severe.[24]
[24] Further Affidavit of Michelle Louise Vaughan affirmed on 19 June 2024, JCB 11 [4]-[5]
38She regularly massaged her right thumb to reduce the pain, which she demonstrated in Court. She also massaged her hand and thumb under warm water.
39She felt self-conscious about the appearance of her right thumb as a result of the nail curving and growing differently. She is very frustrated and depressed at times about the things she cannot manage anymore. She found it upsetting having to rely on others to do things for her.[25]
[25] Ibid 9 [24]
40I accept that the plaintiff does not have any real respite from ongoing pain, but she is able to manage it with massage and the exercises she has been taught by the hand therapist. I accept that the exercises which she does daily, help keep her right thumb functioning.
Medication and medical treatment
41The plaintiff has avoided taking medication and puts up with discomfort or pain. She took Nurofen if the pain was too strong for her to cope with and in cross-examination, she said she took it when the pain was severe.[26] Whilst the plaintiff’s recourse to medication may appear minimal, I accept that does not mean she is not suffering from continuous pain. Rather she has learnt techniques to manage the pain without medicating herself.
[26] JCB 7 [13]
Work Capacity
42She relies heavily on the use of her left hand and tries to avoid using her right hand. She wears cotton gloves with latex gloves over the top to give her thumb some protection and to help in managing the cold, which is a particular issue at her current work as she works in a cool room. She can manage at work, but it is a struggle for her at times, and she requires help from co-workers to lift things. Her thumb is often painful after a day of work[27]. When she did the packing duties at Luv-a-Duck she mainly used her left hand and used the right as a support hand. Her work now as a production worker involved placing meat on a conveyor belt which moved at a very slow speed. She used her left hand to put the pieces of meat on the conveyor and would only use her right hand if needed as support every now and then.[28]
[27] Ibid 12]
[28] Transcript (‘T’) 5 Line (‘L’) 2-19
43I accept that the impact on the plaintiff’s ability to undertake unrestricted work duties is a very significant consequence to this plaintiff. Again, it is to her credit that she has returned to work despite the restrictions.
44The plaintiff deposed in her first affidavit that she is unable to return to work as a masseur which she had hoped to do as a part-time job but also as an interest. She found it impossible to massage effectively without the full use of both hands. After her injury, she let go of her massage business and an ABN as she could not return to work as a masseur. She could not massage her partner, family or friends and this was a significant loss as she used to enjoy massaging and was good at it.[29] She conceded in cross examination that she last worked in a paid capacity as a masseuse in 2013. I am however satisfied that the plaintiff’s inability to perform massages is a great loss to her. She qualified and worked in this capacity for a time and although she did not perform it in a paid capacity since 2013, she continued to massage her partner, and did not cancel her ABN until after her injury. The possibility of her returning to paid work in this discipline was extinguished with the injury to the thumb given its lasting effects. I do consider that this is a serious consequence to the plaintiff.
[29] JCB 8 [15]
45She accepted that she was able to drive herself and that her work was an hour and a half round trip each day.[30]
[30] T 7 L 9-17
Activities of daily living
46She has a lot of trouble with domestic tasks such as washing dishes, as she has lost manual dexterity. She often dropped plates and cups as she finds it difficult to grip objects. She struggles to use can-openers or open jars, and instead has to rely on her partner or children to do this for her.[31]
[31] JCB 8 [16]
47Household cleaning tasks are difficult and often painful for her. She cooks less frequently as cutting things puts pressure on her thumb and is painful. As a result, her partner now does most of the cleaning tasks and cooking.[32]
[32] Ibid [17]
48She has stopped wearing lace-up shoes as doing up laces is very difficult for her, and she now wears elastic sided boots. She has had to relearn to rely principally on her left arm when performing toileting, showering and dressing her hair. She also struggles with buttons when dressing.[33]
[33] Ibid [18]
Sports and hobbies
49The plaintiff deposed that she used to enjoy car maintenance and did a lot of maintenance on the family cars. She now finds it very difficult to handle nuts and screws. Using a screwdriver or other hand tools with her right hand is very difficult and it is almost impossible for her to use the tools as using her left hand is extremely awkward.[34]
[34] JCB 9 [19]
50She finds it hard to manage a mouse when operating a computer, so instead she relies on a touch-pad mouse.[35]
[35] Ibid [20]
51She struggles to groom and brush her cats and even handle the litter tray. She often has to rely on her partner or children to perform these tasks.[36]
[36] Ibid [21]
52The plaintiff used to enjoy operating the whipper-snipper in the garden, but the vibrations cause increased right thumb pain, so she tries to avoid using it now. She avoids any heavy tasks or using tools like secateurs or hedge trimmers as she relies on her right hand for those tasks, but she inevitably ends up with pain in her right thumb.[37]
[37] Ibid [22]
53She used to enjoy cross-stitching in her pastime but now she cannot hold the needle. She also struggles to operate her sewing machine as it requires dexterity to thread the machine.[38] In her oral evidence she said that she cannot feed the horses on their property, she does not do any of the gardening or prune roses; she said, “I basically just don’t do much”.[39]
[38] Ibid [23]
[39] T 7 L1-5
Findings
54The evidence of her partner, Mr Steel, corroborates the plaintiff’s complaints that she can no longer service or maintain her car, that she no longer performs massages and that she does not do her tapestries. He now did most of the household chores around the house and he confirmed she had problems with grooming as he has had to tie her shoelaces or tie her hair in a ponytail.
55Whilst Dr Koslov opined in his report dated 1 December 2021, that the plaintiff’s physical injury did not cause a significant impact on her social, domestic and recreational activities, it is unclear what understanding or knowledge he had of the plaintiff’s activities. He did state that after the injury the plaintiff had developed stiffness in the joint of the right thumb, weakness of the pinch grip and as a consequence, reduced ability for fine movement in the right hand, particularly involving the right thumb. He also noted she had to remodel the way she had to use her right hand to perform certain things. These comments regarding the consequences of the crush injury, do not support the conclusion that the physical injury does not cause significant impact on her social, domestic or recreational activities.
56The position with respect to the plaintiff’s use of the thumb and hand and the impact on her work, social, domestic and recreational activities, is in my view, more in keeping with the opinion of Mr Anstee. He noted that the plaintiff complained that any right-hand tasks had been made more difficult by virtue of the injury and he had no reason to doubt that. She had “significant measurable impairment and also a significant incapacity. This is permanent”. He also thought her prognosis was fair and she had sustained a significant physical disability.
57I accept the plaintiff was stoic and had the strength of character to push on with her life and work in circumstances where others with less fortitude may not have. Mr Anstee commented that she made no effort to exaggerate her significant injury and incapacity. It was to her credit that she had returned to work. The plaintiff’s suffering in my view cannot be compared to the plaintiff in TTB SMS v Reading and I accept that her injury is productive of very considerable consequences.
58I accept Mr Anstee’s opinion, which I prefer over Dr Elder and Dr Kozlov. Not only did he examine the plaintiff more recently, but he is also eminently qualified having regard to his specialty in plastic and reconstructive surgery, to comment on the effect of the crush injury which also involved extensive soft tissue injury. Whilst Dr Anstee noted that the X-ray taken shortly after the injury was essentially normal, at surgery a wound washout was performed and a debridement carried out with a K-wire inserted and the wound repaired.
59In addition, the purpose of Dr Elder’s examination was for an assessment of the plaintiff’s impairment benefit claim and his report does not descend to the level of detail that Mr Anstee’s does in relation to the consequences experienced by the plaintiff. I also note that unlike Dr Elder, the Medical Panel found sensory disturbance as did Mr Anstee.
60I find that the plaintiff has sustained a crush injury which resulted in sensory loss as a result of the incident at work.
61As plaintiff’s senior counsel remarked, the development of the horizontally opposed thumb is what has enabled humans to proceed from the trees to their current state of development. The thumb is the most important joint in the hand. I find that the impact of crush injury to the plaintiff’s right thumb, which is an important joint in the hand, is felt by her everyday whenever she is required to use her hand for any activity which involves the use of her thumb. Even Dr Koslov conceded that she had weakness in her pinch grip and a reduced ability for fine movements in the right hand.
62In the circumstances, I consider that the plaintiff’s pain and suffering consequences, in relation to her on going pain and restrictions, the impact on her social, domestic and recreational activities, the impact on her ability to perform work, constitutes a serious long-term impairment to the plaintiff, when judged by comparison with other cases in the range of possible impairments and losses “at least very considerable” and certainly “more than significant or marked”.
63The plaintiff brought her case also under paragraph (b), namely permanent serious disfigurement. Having had the opportunity of inspecting the plaintiff’s right thumb and hand, I noted that the right thumb was somewhat larger, and the nail elongated and curved compared with the left. The scarring was visible but I would not regard it as falling into the category of serious disfigurement.
64The plaintiff’s case was based on the appearance of the scar and that she felt self-conscious about its appearance. I accept that the scar is visible. However, it is not particularly prominent or unsightly. Mr Anstee noted that its appearance was like a flap measuring 20mm x 30mm which was raised on the material before me. I am not satisfied that the pain and suffering consequences of the permanent disfigurement suffered as a result of her injury are more than considerable when compared with other cases in the range of possible permanent disfigurements.
Conclusion
65Leave is granted to the plaintiff to commence common law proceedings for pain and suffering only in respect of the injury suffered in the course of her employment on or about 24 July 2019.
66I will hear argument with respect to costs.
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