Vella v Classic Architraves and Skirting Pty Ltd
[2013] VCC 820
•21 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00645
| MARIO VELLA | Plaintiff |
| v | |
| CLASSIC ARCHITRAVES & SKIRTING PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 June 2013 | |
DATE OF JUDGMENT: | 21 June 2013 | |
CASE MAY BE CITED AS: | Vella v Classic Architraves & Skirting Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 820 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to left fifth digit on non-dominant hand – loss of function – whether pain and suffering consequences are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB(38)(c)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: The plaintiff’s originating motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr G A Worth | Shine Lawyers |
| For the Defendant | Mr S J A Jurica | Lander & Rogers |
HIS HONOUR:
Introduction
1 This proceeding is an application brought by Originating Motion dated 10 February 2012, by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of, or in the course of, his employment on 21 February 2006 with the defendant. The plaintiff seeks leave to bring proceedings for pain and suffering damages only.
2 The injury suffered by the plaintiff for which he seeks leave to bring proceedings for damages is an injury to the left wrist and left hand, in particular, his fifth digit on the left hand. His left hand is non-dominant.
3 Mr Ingram, on behalf of the plaintiff, abandoned the application for serious injury in respect of pain and suffering and loss of earning capacity arising from an alleged cardiac condition which was caused by the plaintiff’s employment with the defendant.
4 The plaintiff gave evidence and was cross-examined during the course of the hearing. The following documentation was also tendered as evidence in this proceeding:
·Exhibit A – Plaintiff’s Court Book (“PCB”) pages 27−57D, and pages 78−123;
·Exhibit B – Certificates of Incapacity relating to the plaintiff dating from 4 April 2007 until 29 March 2011;
·Exhibit 1 – Plaintiff’s Court Book pages 58−77;
·Exhibit 2 – Bundle of five documents:
§ General practitioner’s notes from the Dandenong Clinic;
§ Dr Glenton R White’s clinical notes;
§ Australian Government CRS Australia application dated 29 March 2010;
§ Medical report for Disability Support Pension dated 19 May 2011; and
§ Medical report for Disability Support Pension dated 16 July 2011.
·Exhibit 3 – Three DVDs of surveillance of the plaintiff relating to the dates 26 March 2012, 21 July 2012, 26 March 2013 and 27 March 2013.
·Exhibit 4 – Defendant’s Court Book (“DCB”) pages 6−12 and 32−69.
5 This application is brought under the definition of “serious injury” contained in ss37(a) of s134AB of the Act, which requires a plaintiff to prove that he has suffered a “permanent serious impairment or loss of body function”.
6 The loss of body function in this case is the use of the left hand.
7 Mr Jurica, on behalf of the defendant, identified the issue in this application as whether or not the consequences for the plaintiff met the statutory test. In short, this case is a range case.
The Statutory Scheme
8 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999;[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners (supra) at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
9 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
10 The plaintiff was born in July 1953. He is fifty-nine years old. The plaintiff was born in Malta and came to Australia as a very young child in 1954.[3]
[3]PCB 28
11 The plaintiff is a single man and has no children.[4]
[4]PCB 28
12 The plaintiff was educated to Year 10 level at Noble Park Technical College. He completed his education in 1968 and immediately entered the workforce. Unfortunately, in 1969, the plaintiff was involved in a very serious transport accident which left him with serious head injuries. He returned to his work in September 1969 at Australia Post. He then left that employment and commenced employment with Victorian Railways for approximately three years.[5]
[5]PCB 28
13 The plaintiff has predominantly been employed as a truck driver for the whole of his working life.
14 In 2002, the plaintiff commenced his employment with the defendant as a truck driver.[6]
[6]PCB 28
Injury with the Defendant
15 The plaintiff was employed as a truck driver with the defendant company. On 21 February 2006, whilst making a delivery in the course of his employment, the plaintiff was unloading his truck. The plaintiff stated he was required to cut a metal tape which was used to secure bundles of wood, which were the product of the defendant. The plaintiff stated that he used snippers which were provided to him by the employer to cut the metal tape. The plaintiff was pulling on the metal tape when it flicked up and hit his left hand near his wrist, causing a laceration. The laceration damaged tendons and nerves to his left hand.[7]
[7]PCB 32, paragraph 17
16 In his evidence, the plaintiff confirmed that the accident occurred when he cut the metal tape and he was pulling on it. When it got very tight, it flicked free and cut him on the wrist. He described the metal tape as being approximately half-an-inch wide.[8]
[8]Transcript (“T”) 10
17 The plaintiff maintained that at the time of the accident, he was wearing cotton gloves, as required in his employment. He stated that the cotton gloves finished at or about his wrist level and that the metal tape had cut him above the glove.[9]
[9]T 9
18 The defendant did not accept that the plaintiff was wearing gloves at the time of the accident. The defendant’s records show that the plaintiff reported that he was not wearing gloves at the time of the accident, which he was required to do. It was recorded that the plaintiff had taken off his gloves whilst he was cutting the metal strap.[10]
[10]DCB 8
19 The defendant otherwise accepts that an injury occurred to the plaintiff in the manner described by him.
Medical treatment
20 The plaintiff was taken by ambulance to the Austin Hospital for treatment immediately after his accident.[11] The plaintiff received emergency treatment on that occasion at the Austin Hospital. He was discharged and expected to return to the hospital the following day.[12]
[11]PCB 32
[12]PCB 33
21 On 22 February 2006, the plaintiff attended his general practitioner, Dr Demirtzoglou.[13] At the time of his attendance on the general practitioner, the plaintiff had failed to attend his surgical clinical appointment at the Austin Hospital.[14]
[13]PCB 43
[14]PCB 43
22 Dr Demirtzoglou referred the plaintiff to Mr Tham, a plastic surgeon, for surgery.[15]
[15]PCB 43
23 The plaintiff attended Mr Tham on 24 February 2006.[16]
[16]PCB 33, paragraph 20
24 Mr Tham performed an operation to repair the plaintiff’s injured left wrist on 24 February 2006.[17] Mr Tham’s diagnosis prior to operation was a laceration over the dorsum of his left hand with division of the extensor communis, and extensor digiti minimi to the little finger and also the dorsal branch of the ulnar nerve. The plaintiff’s injury was treated by the divided structures being repaired, including a wound debridement, and his left wrist and hand were placed in a resting splint.[18]
[17]PCB 42
[18]PCB 42 and 47A
25 The plaintiff was reviewed on 10 March 2006 by Mr Tham. At that time, there were no post-operative complications and he was referred for hand therapy.
26 On 18 April 2006, the plaintiff developed a significant extensor lag at the metacarpal phalangeal joint of the left little finger, indicative of rupture of the extensor tendon. At that stage, surgical treatment was discussed, but not followed up by the plaintiff.[19]
[19]PCB 57A
27 The plaintiff returned for further treatment with Mr Tham. On 3 March 2007, the plaintiff’s ruptured extensor tendon was eventually treated surgically by tendon transfer.[20] A rehabilitation program was then commenced and he was last seen by Mr Tham on 4 May 2007. At that time, the plaintiff almost had a full range of motion of the left little finger metacarpal phalangeal joint. He was discharged from Mr Tham’s care on that date.[21]
[20]PCB 57A
[21]PCB 57B
28 The plaintiff did not return to Mr Tham until October 2011. At that time, the plaintiff was complaining of lack of strength in his left hand associated with constant pain over the dorsum of his left little finger and lack of dextrous use of his finger.[22] Mr Tham did not provide any further treatment to the plaintiff at that time.
[22]PCB 57C
29 The plaintiff had continued to see Dr Demirtzoglou over the period from 2001 until the current time. In that period of time, other than the initial attendance on Dr Demirtzoglou immediately following the accident, the plaintiff has only complained of his left hand injury, as noted in his clinical notes on 26 June 2007, 8 March 2011 and 18 March 2011.[23]
[23]Exhibit 2, Document 1
30 I note that Dr Demirtzoglou had prepared an email directed to Mr Ingram of counsel on 6 June 2013. This email was dated on the first day of the hearing at 4.46pm. In that email, Dr Demirtzoglou stated:
“He has mentioned his hand pains since his surgery on several occasions during other consultations, in passing, which have not been recorded in the notes.
The occasions that have been recorded have been where there were major concerns about his hand.
He continues to have hand problems which have now stabilised.”[24]
[24]PCB 57AA
31 Whilst I note that Dr Demirtzoglou remembers the plaintiff mentioning some complaints about his left hand, he has not treated the plaintiff specifically for his left hand injury, other than the occasions already noted in these reasons. The plaintiff does not take any medication or alternative hand therapy for his injury.
The medical opinions
32 In this proceeding, no evidence was given by medical practitioners. The parties relied upon the medical reports of the following doctors:
(a) Dr Demirtzoglou, general practitioner
33 Dr Demirtzoglou prepared six reports. The reports were dated 24 October 2006, 25 July 2007, 20 October 2011, 6 April 2011 and 15 August 2013. As I have previously mentioned in these reasons, Dr Demirtzoglou responded to a request from Mr Ingram of counsel, and that email was dated 6 June 2013.
34 It is apparent from the numerous reports from Dr Demirtzoglou that the overwhelming medical condition relating to the plaintiff is his cardiac condition. In respect of the left hand injury, the general practitioner, in his report dated 15 April 2013, stated:
“Mr Vella has residual reduced extension of his left 5th digit, reduced sensation of his 5th digit and reduced left hand grip. This will affect his ability to carry objects with his left hand or use his left hand to grip objects firmly so there may be issues with shopping, gardening etc.”[25]
[25]PCB 57
35 In the Australian Government CRS Australia medical form dated 29 March 2010, Dr Demirtzoglou does not mention the left hand injury. The concentration of diagnoses in that report are ischaemic heart disease and low-back pain.[26]
[26]Exhibit 2, Document 3
36 In the medical report dated 19 May 2011, in support of the plaintiff’s Disability Support Pension, Dr Demirtzoglou nominates heart disease and back pain as the two conditions giving a basis for a Disability Support Pension. I note, for the sake of completeness, that in that same report, in answer to the question−
“Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function?”
the general practitioner nominates left hand pain and states that there is nil treatment for it, and describes the inability to function as pain on gripping.[27]
[27]Exhibit 2, Document 4, page 6 of 8
37 The general practitioner, in preparing the medical reports for the Disability Support Pension dated 16 July 2011, nominated low-back pain as the most significant condition affecting the plaintiff. The second most significant condition affecting the plaintiff was nominated as heart disease. In this more recent certification for the Disability Support Pension by the general practitioner, there is no mention made of the left hand injury.
38 Dr Demirtzoglou has been the treating general practitioner of the plaintiff since the time of his hand injury to the time of this hearing. In that period, the general practitioner has noted complaints of pain by the plaintiff on three separate occasions and his full patient history.[28] On 26 June 2007, Dr Demirtzoglou noted that the plaintiff was still suffering from left 5th digit pain radiating up the arm and “a fair grip”. The next note made by the general practitioner about complaints of pain from the plaintiff about his left hand is 8 March 2011. The general practitioner noted that the plaintiff could form a fist with the left hand and cannot straighten the digit fully. On that occasion, the plaintiff had complained of left 5th digit pain. The final notation made by the general practitioner was 18 March 2011. The plaintiff complained of still having left 5th digit pain. At that same consultation, the plaintiff was also complaining of low-back pains and depression. Those latter conditions are not part of this application.
[28]Exhibit 2, Document 1
39 The email of Dr Demirtzoglou dated 6 June 2013[29] is the last statement by the general practitioner about the plaintiff’s left hand condition. In that email, Dr Demirtzoglou refers to the plaintiff mentioning his hand pains during other consultations which was not recorded in the doctor’s notes. On the occasions that the hand pains were noted, they were described as major concerns for the plaintiff.[30]
[29]PCB 57AA
[30]PCB 57AA
40 I conclude from the general practitioner’s notations and medical reporting that the plaintiff’s major medical concerns are to do with his cardiac and heart condition, and also his low-back pain. The general practitioner is not treating the plaintiff for any symptoms or condition relating to his left hand. On the medical reporting by the general practitioner, the injury to the plaintiff’s left hand and its condition at the present time is not significant or marked, or at least to be considered very considerable.
(b) Mr Stephen Tham, hand surgeon
41 Mr Tham was the treating surgeon for the plaintiff’s left hand injury on 24 February 2006. Mr Tham prepared two medical reports for the purpose of this application dated 10 October 2007 and 17 May 2013. The first report dated 10 October 2007 was prepared some six months after the second surgical treatment by Mr Tham of the plaintiff. The surgery on 3 March 2007 was a tendon transfer to the 5th digit on the left hand. Mr Tham noted that when the plaintiff was reviewed on 4 May 2007, there was almost a full range of motion in the left little finger metacarpal phalangeal joint and that he, the plaintiff, was then discharged from his care.[31] At the time of his report in October 2007, Mr Tham diagnosed the injury as follows:
“Diagnosis of injury.
Laceration of dorsum and ulnar aspect of right hand resulting in division of the extensor tendons to the little finger and dorsal branch of the ulnar nerve. The sensory nerve was repaired together with the extensor tendons, however the extensor tendons ruptured and a further surgical procedure was performed on the 3rd March 2007 to re-establish continuity of the extensor tendon to the little finger.”[32]
[31]PCB 57B
[32]PCB 57B
42 At that time, in Mr Tham’s opinion, the plaintiff was fit to return to his former duties.[33]
[33]PCB 57B
43 The plaintiff returned to Mr Tham on 17 October 2011 for review. At that time, he was complaining of lack of strength in his left hand associated with constant pain over the dorsum of his little left finger and lack of dextrous use of his finger. Mr Tham took a history from the plaintiff that he was not able to return to his previous work as a truck driver since the injury in 2006.[34] That history, of course, is incorrect as the plaintiff returned to work between 2007 and 2008.
[34]PCB 57C
44 In his second report dated 17 May 2013, Mr Tham gave the following opinion about the effect of the left hand injury on the plaintiff, as follows:
“On a scale of mild, moderate and severe I would consider that his left hand injury has affected his activities of daily living, to engage in social, recreational and domestic pursuits, to at worse mild extent.”[35]
[35]PCB 57D
(c) Mr Peter Battlay, orthopaedic surgeon
45 The plaintiff was reviewed by Mr Peter Battlay on 13 March 2007. Mr Battlay prepared a report dated 15 March 2007. At the time of the assessment, the plaintiff’s left hand was still in plaster as a result of the tendon transfer surgery earlier in March 2007. Mr Battlay was unable to examine the plaintiff’s hand properly at that time. At that time, Mr Battlay was of the opinion that the plaintiff would be able to return to pre-injury work.[36]
[36]PCB 61
46 Mr Battlay’s opinion is very dated at this time and is of little assistance to the Court in determining the extent of the injury and consequences to the plaintiff at the day of the hearing.
(d) Mr Murray Stapleton, plastic and hand surgeon
47 On 30 July 2007, Mr Murray Stapleton reviewed the plaintiff on behalf of the defendant. Mr Stapleton prepared a report dated 30 July 2007. At the time of that examination, Mr Stapleton made the following findings:
·that the scar to the wrist had settled well; and
·that the 5th left digit showed no sensory loss.[37]
[37]PCB 63 and 64
48 Mr Stapleton’s report is now some six years old and is not of great assistance to the Court in assessing the plaintiff’s current condition.
(e) Mr Kenneth Myers, consultant general surgeon
49 Mr Kenneth Myers examined and reviewed the plaintiff on two separate occasions. He prepared two reports dated 27 June 2011 and 25 June 2012. In his first report, Mr Myers took a history from the plaintiff that:
“He was off work until 2008, when he obtained work driving on a local milk round for about a year but he had to resign ‘because of recurring pains in the chest’.”[38]
[38]PCB 71
50 In that same report, Mr Myers proffered the opinion that it was totally improper for the plaintiff to return to work as a truck driver because of the risk of suffering a myocardial infarct while driving.[39] In that first report, Mr Myers does not proffer any opinion relating to the left hand injury.
[39]PCB 73
51 In his second report dated 25 June 2012, Mr Myers took the following history from the plaintiff:
“He was able to resume work activities in due course and worked until 2008 but states that he was unable to work after that ‘because of the heart and the hand’.”[40]
[40]PCB 75
52 This report by Mr Myers is concentrating on the left hand injury. Mr Myers noted that the plaintiff claimed that he had a poor grip in the left hand.[41] Mr Myers then gave the following opinion:
“I believe he has no capacity for pre-injury employment or any other form of employment for which he is suited by way of training, education or experience because of his myocardial infarct.
…
The myocardial infarct in particular and the left hand injury to a lesser degree interfere with his lifestyle and daily living activities and ability to engage in social, domestic and recreational activities.”[42]
[41]PCB 75
[42]PCB 76 and 77
53 It is clear from the reports of Kenneth Myers that, in his opinion, the heart condition of the plaintiff is the most significant health issue for him. Mr Myers does not say exactly what activities of daily living the plaintiff would be impaired from doing as a result of his left hand injury. I do not find this particular report from Mr Myers helpful in determining the issue of serious injury for the plaintiff’s left hand.
(f) Mr Kevin King, orthopaedic surgeon
54 Mr King examined the plaintiff for the purposes of medico-legal reporting and prepared a report on 1 February 2013. Mr King took a history from the plaintiff that, after his two surgical operations for his left hand, he obtained work driving a truck for approximately twelve months. The plaintiff stated that he had suffered increasing tiredness and also some weakness and clumsiness in the left hand, and that he gave up his job in late 2009. He has not worked since due to a combination of cardiac and left wrist and hand symptoms.[43]
[43]PCB 80
55 Mr King observed:
“Persistent weakness and clumsiness in the left hand, involving the whole of the left hand, but maximal in the left little finger which he cannot fully extend, the grip of his left hand is weak, and he tends to drop things and can only use a fork in the left hand with difficulty.
My overall impression is that his most severe problem is his general feeling of fatigue which he attributes to his heart condition, compounded by chest pain and dyspnoea. He thinks he might be able to manage truck driving if his cardiac symptoms were relieved but is not sure of this.”[44]
[44]PCB 80
56 In relation to the left wrist injury, Mr King opined:
“My overall impression from looking at his orthopaedic injuries to the left wrist is that he has been left with a mild but definite impairment of overall function the left hand and wrist region, some weakness, stiffness and clumsiness of the left little finger in particular, equivalent on clinical grounds to approximately 20% loss of function in the left hand overall. He is stabilised at this level.
…
He thinks he could probably drive a truck if it were not for his cardiac symptoms but has a definite impairment of function in the left hand.”[45]
[45]PCB 82
57 The plaintiff’s complaints to Mr King related to weakness of his left hand grip and inability to flex his 5th left digit. The plaintiff did not specifically complain of pain in the left hand to Mr King. The plaintiff’s complaint was really relating to an impairment of the function of the left hand.
(g) Mr Felix Behan, plastic and reconstructive surgeon
58 The plaintiff was seen by Mr Behan for the purposes of this application. He prepared a report dated 23 April 2013. Mr Behan found that the plaintiff had a poor extensor function of the left little finger and that he also suffered from an ulnar sensory loss from the dorsal cutaneous of the ulnar nerve, which supplies the dorsal 1½ digits. Mr Behan’s opinion was that the plaintiff could not make a full power grip on the left side.[46]
[46]PCB 92 and 93
59 Mr Behan’s diagnosis of the plaintiff’s injury was:
“Tendon damage and repair and neural damage to the ulnar side of the (L) hand non dominant side and also to the extensor tendon of the (L) little finger.”[47]
[47]PCB 95
60 Mr Behan took a photograph of the plaintiff’s left hand in a fist configuration.[48] The same demonstration of an ability to make a full fist was made by the plaintiff during the course of his evidence. Mr Behan noted that the ulnar power grip was no more than 5 kilograms and that he had a 2/5 Oxford power grip measurement.
[48]PCB 105
(h) Dr Jeremy Hammond, cardiologist
61 Dr Hammond prepared a report for medico-legal purposes dated 23 September 2009. The purpose of Dr Hammond’s examination of the plaintiff was for the cardiac and heart disease suffered by the plaintiff. In the course of taking a history from the plaintiff for the purposes of that report, the plaintiff informed Dr Hammond that:
“Mr Vella reported that this occupation involved working between the hours of 1 a.m. and approximately 9 a.m., delivering crates of milk. He reported that he liked this work, however he found the hours inconvenient, such that he decided to cease work.”[49]
[49]DCB 39
62 The plaintiff also told Dr Hammond that he spends time helping his mother.[50]
[50]DCB 39
63 The history of the reasons given by the plaintiff for ceasing his work as a milk truck delivery driver is at odds with his history to other doctors concerning his heart disease or his left hand injury.
(i) Mr Brian Davie, orthopaedic surgeon
64 Mr Davie examined the plaintiff on behalf of the defendant for the purposes of medico-legal reporting in this proceeding. He prepared a report dated 1 May 2013. In the course of taking a history and examining the plaintiff, Mr Davie noted:
“Regarding the relevant injury he complains of numbness on the ulnar side of the left hand and left finger and loss of extension of the little finger.
…
There was diminished dorsiflexion of the wrist but the other wrist movements were normal.
There was a thirty percent loss of extension in the metacarpophalangeal joint of the left little finger. There was no sensory loss today. There was good grip in the left hand and fingers and normal opposition.”[51]
[51]DCB 59
65 Mr Davie’s opinion was as follows:
“In my opinion, Mr Vella has sustained an injury with a laceration to the left wrist resulting in division of the extensor tendons to the left little finger and dorsal branch of the ulnar nerve. Repair of the ulnar nerve has been very satisfactory. He has required two operations to the extensor tendon and he still has a lack of extension of thirty degrees in the metacarpophalangeal joint of the left hand.
…
I do not believe that the injury to the left hand, wrist and fingers would affect his capacity to work or to undertake social, domestic or recreational activities.
…
According to the plaintiff he has not required any treatment for the injury in the past two years.”[52]
[52]DCB 60
66 In summary, the medical opinion in relation to the plaintiff’s left hand injury is that he has made a very good recovery from the laceration to the left wrist. After two operations, the plaintiff has regained most of the use of his left non-dominant hand. The main limitation is his lack of grip strength and his ability to fully extend his little finger on the left hand. The plaintiff complains that he is unable to finely manipulate things in his left hand. However, it is clear that he can oppose each digit with his thumb. I note that in respect of the medical practitioners, his major complaint in respect of his left hand is not about pain.
Credit of the Plaintiff
67 The defendant did not mount a full attack on the credit of the plaintiff in this case. In the course of the hearing, the plaintiff was shown three separate videos. The total of the video time was approximately 50 minutes. The dates of surveillance of the plaintiff were 26 March 2012, 19 and 21 July 2012 and 26 and 27 March 2013.
68 I note that a total of 50 minutes of surveillance film over a period of some five days’ surveillance is not a significant amount of surveillance. A court has to be very careful when observing surveillance films with all the warnings that were set out by the Court of Appeal in Church v Echuca Regional Health.[53] I have taken into account all of those considerations when weighing up the credit of the plaintiff in this case.
[53](2008) 20 VR 566
69 The filming of the plaintiff showed him freely using both his left and right hands in the activities of supermarket shopping. To a casual observer, there was no apparent restriction in the method or means of him using his left hand whilst carrying bags or obtaining items from supermarket shelves. In the surveillance film of March 2013, the plaintiff was also shown to be using petrol pumps in a service station. On that occasion, he used his left hand to fill up the car and his right hand to fill up a container containing fuel in the boot.
70 I find that the video surveillance film clearly showed that the plaintiff was able to use his left hand in an unrestricted manner relating to shopping, carrying bags and filling his car with petrol. In short, it was clear that the plaintiff was able to engage in the activities of daily living without restriction.
71 The plaintiff’s evidence was that he suffered pain when using the hand or, alternatively, it went numb. The surveillance film did not show any protective behaviours by the plaintiff in respect of his left hand when performing the tasks shown on the film.
72 I conclude that the surveillance film did not assist in any attack on the credit of the plaintiff. I found the plaintiff to be a reasonably frank and straightforward witness when giving his evidence in this case. I do find that he tended to exaggerate in respect of the level of pain that he was suffering in his left hand. The film showed that he was able to engage in most activities using his left hand. Indeed, his evidence was that he could do that.
73 Another line of attack on the plaintiff’s credit was to do with whether or not he was wearing a glove at the time of injury. In the defendant’s documentation relating to a report of the injury, it was stated that the plaintiff had taken off his glove in order to perform the task of cutting the metal ribbon.[54] This record was in contradiction to the evidence of the plaintiff, who said that he had cloth glove on at the time of the injury.[55] I do not find the issue or difference in reporting about whether or not the plaintiff was wearing a glove at the time of the injury as any indication of the plaintiff’s credit in this case.
[54]DCB 8
[55]T9
Consequences of the left hand injury to the Plaintiff
74 The plaintiff has sworn and relies upon two affidavits dated 19 September 2011 and 5 June 2013. The plaintiff was also cross-examined and re-examined in the course of the hearing. The plaintiff also relies upon the affidavit of Anne Christina Vella, sworn 4 June 2013, and Cathrine Joyce Spalding, sworn 4 June 2013. Ms Vella and Ms Spalding are sisters of the plaintiff in this proceeding.
75 The plaintiff deposes to the following consequences as a result of his injury to his left hand.
Sleep
76 The plaintiff deposed that he often had difficulty falling asleep and to remain asleep as a result of the pain from his physical injuries.[56] The plaintiff was cross-examined about this complaint and the following evidence was given:
[56]PCB 36, paragraph 33
Q:“And why is that?---
A:Well, now I have found there is something wrong with my eyes.
Q:So you’re not able to go sleep [sic] because of your eyes?---
A:That’s it, yes.
Q:And it’s not in relation to your left hand, is it?---
A:Not really, no.
Q:And you don’t actually take any sleep medication, do you?---
A:No, I don’t.
Q:And you haven’t asked for any sleep medication from your GP?---
A:I have not.”[57]
[57]T 61, L 3−12
77 In re-examination, the plaintiff was asked:
Q:“You were asked about sleeping and you said at the moment there was some sort of a problem with your eyes, you had previously sworn you had problems sleeping with your left hand. As at the present time in terms of sleeping is there any impact by reason of your left hand on your capacity to sleep?---
A:My hand is always sore, my left hand is always sore, that’s all I can say and that includes having a proper sleep.”[58]
[58]T80, L7−14
78 On the basis of this evidence, I do not conclude that the plaintiff’s sleep is interrupted or affected by his left hand injury to an extent that would be described as “at least very considerable”.
Pain
79 The plaintiff deposed that he continued to experience pain, numbness and pins and needles in his wrist, hand and fingers.[59] The plaintiff has also deposed that he is troubled by the pain in his left hand and that it frequently goes numb.[60]
[59]PCB 34, paragraph 26
[60]PCB 38H, paragraph 4
80 His two sisters, in their affidavits, deposed that the left hand and wrist injury is “bothersome” to him.[61] Ms Spalding deposes that she has observed her brother in pain as a result of his left hand injury.[62]
[61]PCB 38A
[62]PCB 38E
81 In his evidence, the plaintiff described that his pain was mainly on the left side of the hand. He stated that he got the pain every day.[63] His evidence then was:
[63]T14
Q:“And how long does the pain last for?---
A:Maybe ten minutes.
Q:Does it happen once a day, or does it happen many times a day?---
A:Constantly.
Q:So is it ten minutes - - -?---
A:One minute it comes, goes, come and goes comes and goes.
Q:So does it come and go, for example, it’s on for ten minutes?---
A:Yeah.
Q:It’s off for ten minutes, or is it a bit longer - - -?---
A:Off for a while then it comes back and off again, comes back.”[64]
[64]T15, L1−10
82 The plaintiff does not seek any treatment for the pain to his left hand, nor does he take any medication.
83 The plaintiff was cross-examined about seeking treatment or making a complaint of pain to his medical practitioners. The evidence was:
Q:“You don’t complain about your left hand because it is not that bad?---
A:I don’t complain because I know he can’t do nothing about it.
Q:When you say he can’t do anything about it, has he told you this, your doctor, your GP?---
A:No, he hasn’t told me this.
Q:Where do you get that idea from that he can’t do anything for you?---
A:Because I just think that no doctors can cure everything.”[65]
[65]T21, L21−T22, L5
84 In the medical reporting, the plaintiff makes no complaint of pain to Mr Myers,[66] Mr King,[67] Mr Kaplan,[68] Mr Behan,[69] and Mr Davie.[70]
[66]PCB 75
[67]PCB 80
[68]PCB 86
[69]PCB 92 - 93
[70]DCB 59
85 The plaintiff also gave evidence that he had pains everywhere.[71] The plaintiff confirmed in his evidence that he had not sought any treatment for pain relief and had not received any treatment.[72]
[71]T25, L10
[72]T33, L27−28
86 I have previously noted that the plaintiff had attended his general practitioner on three separate occasions from 26 June 2007 until the current time in respect of his left hand complaints. It is instructive to note that the plaintiff attended his general practitioner on 15 March 2012 with a complaint to his 5th digit on the right hand, the complaint being a wart.[73] In the period outlined between the February 2012 and February 2013 in the general practitioner’s notes, the plaintiff has attended on 10 separate occasions. On none of those occasions has the plaintiff made a complaint to his general practitioner about left hand pain.
[73]Exhibit 2, Document 1
87 It was submitted that the plaintiff was a stoical person. I do not accept the plaintiff is a stoical person. He has a very serious heart condition that has required appropriate and constant medical supervision by his practitioners. The plaintiff attends a doctor regularly. If the pain levels or numbness in his left hand were, as he has described in Court, to the extent and frequency that he complains about now, he would have sought from his medical practitioner some treatment or assistance for his symptoms.
88 The experience of pain has to be judged by the impact of the pain and the extent of it on the plaintiff in any particular case.
89 This assessment is to be taken in a framework of:
(a) what the plaintiff says about the pain;
(b) what the plaintiff does about the pain;
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence, if any, shows about the disabling effect of the pain.[74]
[74]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
90 I find that the plaintiff has made little or no complaint to his medical practitioners about the pain and limitation of use of his left hand. The plaintiff has given evidence that he performs most of the tasks of daily activities and that is confirmed on the video surveillance shown in this application. The plaintiff receives no treatment for his symptoms in his left hand.
91 I conclude that the plaintiff does not suffer from consequences, as a result of pain in his left hand, that amount to being properly classified as “very considerable”.
Medication
92 The plaintiff does not take any medication for pain relief in respect of his left hand. The plaintiff’s explanation for not taking any pain relief medication was given in evidence. The evidence was as follows:
Q:“And you don’t actually take any medication for your left wrist, do you?---
A:No sir, I don’t.
Q:You say in your affidavit that since swearing your last affidavit you are scared of taking painkilling medication for your left hand?---
A:Yes.
Q:Because it may cause problems or conflict with your heart medication, is that right?---
A:That is correct.
Q:And why do you have that belief? Why do you believe that that could be the case?---
A:I can’t answer that.
Q:A doctor has not told you not to take pain medication for your left hand, have they?---
A:Not to take? Why is that please? Can you repeat that?
Q.Has any doctor told you not to take medication for your hand?---
A:No they have not, no.
Q:And what I am suggesting to you is that if you had pain in your left hand you would take simple over the counter medicine like Panadol and things like that, wouldn’t you?---
A:Possibly.”[75]
[75]T20, L5−22
93 The plaintiff then went on to give evidence that he did not want to take any pain-relief medication because it might conflict with his medication for his heart condition.[76] The plaintiff stated that his general practitioner had told him that it was “OK” for him to take pain medication, but the plaintiff did not want to take any chances.[77] I conclude that if the pain in the left hand was to such a degree as to be significant, then the plaintiff would have taken pain relief medication. He has not done so. His belief that the pain relief medication would interfere with his heart medication is unreasonable and not based on any medical advice that he has received from his treating doctors.
[76]T20
[77]T21
Activities of daily living
94 The plaintiff, in his evidence, stated that he assisted his mother on two days a week. The assistance supplied by him to his mother involved taking her shopping. This activity was shown on the surveillance film. The plaintiff appeared to be able to freely perform the shopping tasks, both carrying the shopping and obtaining items from shelves or refrigerators. In his evidence, he confirmed he could do all of these things.
95 The plaintiff also stated that he assisted his mother by mowing the lawn at her home in Springvale. In the surveillance film, the plaintiff was shown, for a very short time, using a rake. He was sharing the raking task with his mother. The plaintiff stated that he could do some sweeping at his own home. The plaintiff also stated that he could cook a meal for himself. I do not accept that the injury to the plaintiff’s left hand has any significant impact on the plaintiff’s life or ability to look after himself, or indeed assist his mother in looking after her.
Work
96 In this application, the plaintiff does not make a claim for loss of earning capacity. It was not contested that the plaintiff’s inability to work was related to some other medical conditions. The plaintiff has been assessed as a disability pensioner, either as a result of his low-back pain or his ischaemic heart condition.[78]
[78]Exhibit 2, Documents 4 and 5
97 After the two surgeries on his left hand, the plaintiff was able to return to work in 2007. He was employed as a milk truck delivery driver. In his evidence, he stated he could move as many as 300 crates of milk per day.[79] The crates weighed approximately 18 kilograms. In the period of time that he worked as a mild delivery driver, spanning approximately one year, the plaintiff did not make any complaint to his doctor about symptoms in his left hand.[80]
[79]T46
[80]T59
98 The plaintiff has stated that he ceased work as a combination of his cardiac and left wrist and hand symptoms.[81] This was a history that he had given to Mr King. The plaintiff gave a history to Mr Myers in 2011 that he ceased his employment because of recurring pains in his chest.[82] In the history taken by Dr Hammond, the plaintiff stated that he had ceased employment as milk delivery driver because the hours were inconvenient.[83]
[81]PCB 80
[82]PCB 71
[83]DCB 39
99 I do not accept that the plaintiff ceased his employment as a milk delivery driver in 2008 as a result of his left hand injury. He did not make a complaint of pain or symptoms at that time to his own general practitioner. At the earliest history given to Mr Myers, he stated that he ceased it because of his heart condition.
Conclusion
100 I am required to assess the consequences, in terms of pain and suffering, which the plaintiff’s injury to his left wrist and hand has occasioned him. I am required to determine where the facts of this particular case sit in a broad spectrum of cases. The test to be applied is whether the plaintiff’s pain and suffering consequences, when judged by comparison with other cases in the range of possible impairments or loss of body function, may be fairly described as being more than “significant” or “marked” and as being “at least very considerable”.
101 I take into account in assessing the level of consequences for the plaintiff in respect of his injury to his left wrist and hand by also examining what capacities he has retained despite that injury.
102 I have also taken into account the considerations set out in the cases of Haden Engineering v McKinnon[84] and Sutton v Laminex Group Pty Ltd[85] to determine the impact of pain and the extent of it on the plaintiff in this case. Ultimately, the decision I am required to take is a value judgment in which matters of fact and degree are to be taken into account when making an assessment of the total consequences to the plaintiff arising from his injury to his left wrist and hand.
[84]Supra
[85]Supra
103 I conclude, taking into account the consequences as I have found them to be, that they are not of such a level as to be properly described as being very considerable, either separately and individually or collectively as a group. I am not satisfied the plaintiff’s impairment, as a result of the injury to his left wrist and hand, is more than significant and marked, and properly described as being at least very considerable.
104 The application for serious injury certification for pain and suffering by the plaintiff is dismissed.
105 I will hear the parties on the question of costs.
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