Webber v Veldeman Australia Pty Ltd
[2015] VCC 1799
•11 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03829
| ADAM WEBBER | Plaintiff |
| v | |
| VELDEMAN AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 November, 1 and 2 December 2015 | |
DATE OF JUDGMENT: | 11 December 2015 | |
CASE MAY BE CITED AS: | Webber v Veldeman Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1799 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to right hand and wrist – whether the consequences of such injury are “at least very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave granted to plaintiff pursuant to s134AB(16)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McCredie | Henry Carus & Associates |
| For the Defendant | Mr N Griffin | IDP Lawyers |
HIS HONOUR:
1 Adam Webber alleges that he suffered an injury to his right hand and wrist on or about 23 December 2009 in the course of his employment with the defendant. He seeks the leave of this Court to issue a proceeding to recover damages for pain and suffering and loss of earning capacity in respect of that injury.
2 Mr Webber’s right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a) of the Act
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of Mr Webber’s right upper limb.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18]–[19]
6 With regard to pain and suffering damages, the impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than “significant” or “marked” and as being “at least very considerable”.[3]
[3]Section 134AB(38)(c) of the Act
7 With regard to loss of earning capacity damages, leave is not to be granted by the Court unless Mr Webber establishes that, in addition to the requirements of s134AB(38)(c), he has suffered, at the date of the hearing of the application, a loss of earning capacity of 40 per cent or more when calculated in accordance with s134AB(38)(e), (f) and (g).
8 The defendant denies that:
(a) The pain and suffering consequences of Mr Webber’s injury can be fairly described as being more than significant or marked and as being at least very considerable.
(b) Mr Webber has suffered a loss of earning capacity of 40 per cent or more.
Background
9 Mr Webber is aged thirty-seven. He was born in New Zealand, where he was educated to Form 4 level.
10 In 1993, when aged fifteen, he moved to Australia, initially living in Mildura.
11 Since, he has been employed in various jobs as a manual labourer.
12 In or about 1999, Mr Webber commenced working as an event labourer. This involved helping to set up temporary buildings and structures, such as large tents and marquees, for major events. He began regular work with the defendant on a seasonal basis in 2005, working on temporary structures for events including the Grand Prix and the Australian Open. He performed this work in Melbourne, and on occasions in Queensland and South Australia.
13 Mr Webber is not married and has four children aged between about two years and sixteen years from a previous relationship.
14 He is right handed.
The Accident
15 On or about 23 December 2009, in the course of his employment with the defendant, Mr Webber sustained cuts to his right hand and wrist. He alleges that a box of Stanley knife blades was thrown to him and upon attempting to catch it, blades came loose, striking his hand and wrist, causing injury.
16 The nature of his injuries was not disputed by the defendant. He suffered a tear of the right median nerve and laceration of a small vein in his right wrist.
17 Mr Webber has not returned to work since his injury, save for a brief and unsuccessful 2 day attempt in early 2010. Despite looking for work at various times since his injury, he has not been able to find employment. He was in receipt of WorkCover payments for a time, but now relies on Centrelink benefits as his sole source of income.
Post-Accident
18 Immediately following the accident, Mr Webber was admitted to the Epworth Hospital, and then transferred to the Freemasons Hospital.
19 On the day of his admission, these were surgically repaired by Mr Robert Donato, a plastic and reconstructive surgeon. Thereafter, he was seen intermittently by Mr Donato up to May 2011.
20 Although his wounds healed, he developed a significant amount of scar tissue around the site of the surgery and required intensive hand therapy addressing tenderness around the site of the scar and associated pins and needles.
21 Ms Chrystal Goodwin, hand therapist, noted hypersensitivity, reduced strength, and pins and needles and numbness of his fingers and the palm of the right hand. He continued to experience chronic pain. He was prescribed Lyrica, a medication for neuralgic pain.
22 When Ms Goodwin last saw Mr Webber in November 2010, she considered that he may have permanent sensory disturbances secondary to the injury and may have ongoing issues with pain, particularly in cold weather. Although she considered there might be improvement over time, a full recovery was unlikely.
Consequences of injury
23 I accept that the current consequences of the injury for Mr Webber are:
(a) He continues to suffer consistent pain in his right fingers, hand, wrist and arm;
(b) From time to time, he suffers a feeling like an electric shock which causes his hand to twitch or move suddenly and unpredictably;
(c) He has difficulty lifting items with his right hand, especially if they are heavy;
(d) Repetitive lifting with his right hand causes increased pain;
(e) He has difficulty lifting his young children. He avoids engaging fully in sporting activities with them;
(f) He has problems performing fine movements with his right fingers. This also prevents him from efficiently handling small items such as screws or similar;
(g) He suffers pins and needles in his right forearm, especially if he attempts to use heavy tools or vibrating equipment for anything other than short periods;
(h) His right hand and forearm are always swollen;
(i) His right grip is weaker than his left which is unusual given that his right hand is his dominant hand;
(j) His sleep is interrupted by pain in his right arm and hand most nights. As a result, he often has reduced energy during the day;
(k) He has difficulty working in the garden and mowing the lawn;
(l) His ability to drive a motor vehicle is restricted. He has, on occasions, driven to Melbourne from Glenorchy but could not do so without breaks when his hand became too painful. More often, he caught the bus or train if he needed to be in Melbourne.
24 I found Mr Webber to be an impressive witness. He tended to understate his problems and certainly did not exaggerate his symptoms. His credit was not seriously challenged at any time during the hearing.
25 Although he is not receiving specific treatment for his injuries at present and has not seen his specialist or hand therapist for some considerable time, I do not consider that this detracts from his evidence concerning those consequences. I accept that he has been told by his medical advisors that there is no particular treatment that is likely to assist in helping him. His general practitioner, Dr Baker, ceased prescribing neuralgic pain medication, Lyrica, in May 2014 not because he no longer experienced pain, but because the Lyrica was no longer helping with his pain. Unfortunately for Mr Webber, it appears that the medical profession is not able to further treat him beneficially.
26 Mr Webber was questioned about a large tattoo on his right arm. This was done about four years ago. He said it had been a very painful process. His desire for such a tattoo was explained by him as being part of his Maori culture. To him, such a tattoo had both religious and cultural meanings. Although one might have thought he would have been better advised to avoid such a procedure of his right arm, I did not consider, overall, that having it done detracted from his evidence concerning the effects of the injury upon him.
27 Dr Baker appears to have referred Mr Webber to a pain management clinic in 2014. It is not clear from the evidence as to whether treatment at such clinic was available to him then. In any event, he has recently been advised by Ballarat Health Services that he is currently on a waiting list to see a pain management specialist.[4] Such treatment would not generally be expected to cure pain but hopefully would assist Mr Webber to cope with and live with his pain more satisfactorily.
[4]Defendant’s Court Book (“DCB”) 166
28 Taking all of the evidence into account, I am satisfied that the pain and suffering consequences of Mr Webber’s injury are, 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.
29 The major dispute between the parties appeared to related to Mr Webber’s current capacity for work and as to whether he could establish that he has suffered a 40 per cent loss of earning capacity as required by s134AB(38)(e) of the Act.
30 The defendant tendered a report from an entity named Nabenet, which appears to be a part of a company, Innovative Physiotherapist Services Pty Ltd.[5] On its letterhead, it describes itself as “Integrated workplace health services”. The author of the report is Jennifer Stapleton, a “rehabilitation consultant” with unknown qualifications.
[5]DCB 101
31 In her report, Ms Stapleton identified four employment positions which she considered were suitable for Mr Webber. In his closing address, counsel for the defendant relied on only three of these: a forklift driver, a traffic controller, and an agricultural forestry and horticultural operator.
32 In December 2012, Dr Baker reported that Mr Webber could return to work in such positions provided he could avoid lifting and repetitive movement of his right hand. Dr Baker gave oral evidence and was cross-examined. I formed the view that he had little knowledge of what work someone employed in any of these positions would be required to do on a day to day basis.
33 Mr Webber had worked as a forklift driver before the accident and was also familiar with the work of a traffic controller.
34 Mr Webber described driving a forklift as involving important and precise movements of his right hand to raise, tilt and otherwise position the load on the tynes of the forklift. He was concerned, in my view justifiably, that it would be unsafe for him to operate a forklift. If he suffered from the electric-like shock or twitch in his right hand or fingers, he could inadvertently move the load in such a way as to cause a serious accident.
35 In the past Mr Webber also worked as a traffic controller. He agreed that he could work directing traffic by means of a portable ‘Slow’ or ‘Stop’ sign. However, I accept his evidence that the job would also involve the placement of signs around relevant areas and that such signs were awkward and relatively heavy. From his prior experience, he did not consider that he would be able to do such tasks.
36 The agricultural, forestry and horticultural position referred to by Ms Stapleton was not pursued by counsel for the defendant in cross-examination or closing address. Looking at the job description, it seems clear that the job would involve a good deal of manual and repetitive duties involving both hands.
37 Dr Baker reported in December 2011 that Mr Webber should avoid lifting or repetitive movement of the affected hand but could otherwise return to work in the positions referred to in Ms Stapleton’s report. However, I consider that the positions each involved lifting and repetitive tasks involving the use of both hands. I consider that Dr Baker did not understand the full nature of the duties involved in those positions.
38 Mr Webber has, on occasions in the past, been offered work performing tasks of a nature similar to that performed by him prior to his accident or manually carrying supplies to various food outlets at events such as the Melbourne Show or the Grand Prix. He was embarrassed to decline such offers but believed he would not have been able to perform such work. On another occasion, he was offered fencing work, which he declined. I accept that his injuries would have prevented him from engaging in such work.
39 Mr Webber had provided a history to some doctors that he had, since the accident, been involved in the building of a bungalow at his parents’ property at Glenorchy. I accept his oral evidence that had not performed any of the heavy tasks involved and said that these had been done by others.
40 When examined in August 2014 by Ms Wadsley, an occupational physician, Mr Webber said that he had considered work installing solar panels on rooves of houses. His evidence was that he had briefly observed a neighbour having such a system installed on his roof. Taking all of the evidence concerning Mr Webber’s injuries and their impact on him, I consider that such statement merely reflected unjustified optimism rather than any realistic intention. Such a task would, in my opinion, involve repetitive physical work, regularly accessing rooftops and extensive use of both hands and would not be suitable employment for him.
41 In summary, I do not consider that any of the positions suggested by Ms Stapleton would be suitable employment for Mr Webber. Further, he has only Year 10 education, no computer skills and, in any case, such keyboard work would almost inevitably involve repetitive movements of the fingers of both hands. He has no other training. I do not consider that he is realistically able to be re-trained for a suitably light position.
Accordingly, I am satisfied that Mr Webber has suffered a loss of earning capacity of 40 per cent or more.
Conclusion
42 For the reasons expressed above, I am satisfied that Mr Webber has suffered a “serious injury” as defined in s134AB of the Act.
43 Pursuant to s134AB(16)(b) of the Act, there is leave to Mr Webber to commence a proceeding for the recovery of pain and suffering damages and loss of earnings damages with regard to injuries suffered by him in an accident in the course of his employment with the defendant on or about 23 December 2009.
44 I shall hear the parties in respect of costs.
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