White v N S a Woodcraft Pty Ltd
[2013] VCC 552
•24 May 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-12-00059
| MICHAEL WHITE | Plaintiff |
| v | |
| N S A WOODCRAFT PTY LTD (ACN 007 290 342) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May 2013 | |
DATE OF JUDGMENT: | 24 May 2013 | |
CASE MAY BE CITED AS: | White v N S A Woodcraft Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 552 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Crushing injury to the left dominant hand – whether the pain and suffering consequences are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: The plaintiff is granted leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering arising out of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell with Ms M Lang | Robinson Gill |
| For the Defendant | Mr P Jens | Wisewould Mahony |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 10 January 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 the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr D Purcell of Counsel appeared with Ms M Lang of Counsel for the plaintiff and Mr P Jens of Counsel appeared for the defendant.
4 The injury suffered by the plaintiff for which leave is sought is an injury to the dominant left hand.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 8-65: Exhibit A;
· The defendant tendered its Court Book (“DCB”), pages 1-31: Exhibit 1.
6 The application is principally brought under the definition of “serious injury” contained in ss(37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has a suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.
(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.
(c) 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”.
(d) Subsection (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.
(e) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] 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)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1](2005) 14 VR 622
Background
8 The plaintiff was born in 1975 in the United Kingdom. He migrated to Australia in 1981. After completing his schooling, he entered the armed forces. After leaving the armed forces, he completed an apprenticeship in cabinetmaking.
9 In April 2003, the plaintiff obtained employment with the defendant as a cabinetmaker.
10 On 7 December 2006, the plaintiff suffered a crushing injury to his left hand while he was using a drill.
The Plaintiff's Injury
11 There was no issue that the plaintiff suffered a crushing injury to his left hand, and indeed, no issue regarding the nature and extent of that injury.
12 I was invited to view the plaintiff’s left hand after he entered the witness box and after the oath was administered to him. The plaintiff held up both of his hands, firstly with his palms facing towards me, and then the reverse view. What I observed is the same as the photocopies of photographs annexed to the report of Mr Stapleton.[2]
[2]PCB 63-65
13 When the plaintiff’s hand was held up with his palm facing towards me it was evident that his thumb, little and ring fingers appeared to be normal in configuration. He was able to flex and extend those digits without any difficulty. In relation to his index finger, it was permanently fixed in a hooked position. In relation to his middle finger, it was also permanently fixed in a hooked position but more extensively than his index finger.[3]
[3]Depicted in the photograph at PCB 63 and 65
14 The plaintiff is unable to make a fist. The best he is able to do is to curl his little and ring fingers into the normal configuration of a fist, but he is unable to do that with his index and middle fingers. Both of those fingers remain in a hooked position and elevated up from his palm.[4]
[4]Depicted in the photograph at PCB 65
The Medical Evidence
15 The plaintiff was taken to the Knox Private Hospital and from there he was transferred to the Waverley Private Hospital, where he came under the care of Mr Dowling, plastic surgeon.
16 Mr Dowling died suddenly on 1 August 2010. A number of letters written by Mr Dowling to the insurance agent have been reproduced in the plaintiff’s Court Book which describe the nature of the injury suffered by the plaintiff. It would appear that Mr Dowling operated on the plaintiff’s index finger and middle finger on 8, 12 and 15 December 2006 to reconstruct a comminuted compound fracture of the proximal phalanx of the plaintiff’s middle finger.
17 On 27 April 2007, Mr Dowling operated again to deal with stitch abscesses and buried K wires, which were removed under general anaesthesia.
18 Mr Dowling reviewed the plaintiff about ten months after the initial bouts of surgery. He noted that the plaintiff’s middle finger had a limited range of movement in the metacarpophalangeal and proximal interphalangeal joints due to internal scarring which was tethering the excursion of both the flexor and extensor tendons over the reconstructed proximal phalanx. He advised the plaintiff that he needed further surgery to remove significant scar tissue around the tendons. He also advised the plaintiff that he needed bone grafting to establish skeletal stability in his middle finger.[5]
[5]PCB 24-28 and 33-39
19 Mr Dowling performed five episodes of surgery on the plaintiff’s left hand. Unfortunately, the letters and operation notes make it difficult for me to determine the nature of the fifth episode of surgery; however, there was no issue that the plaintiff had undergone five episodes of surgery. There seems to be some confusion in the plaintiff’s mind about how many episodes of surgery he ultimately underwent. Some medical examiners have recorded a history that the plaintiff underwent as many as seven episodes of surgery, but that is neither here nor there, as the starting point for my consideration based upon the submissions of Mr Purcell and Mr Jens is largely to focus on the medico-legal reports, and in particular, the report of Mr Ireland, hand surgeon, dated 11 April 2012.[6]
[6]DCB 26-31
20 Mr Ireland examined the plaintiff for the defendant on 11 April 2012. He conducted an extensive examination of the plaintiff’s left-hand, and in particular, concentrating on his index and middle fingers. It is unnecessary for me to set out much of that examination. He noted the fixed deformities of the plaintiff’s index and middle fingers. He found loss of sensation over the middle finger, significant loss of movement, and significant loss of grip strength, recording 50, 49 and 50 kilograms in the right hand and 20, 18 and 20 kilograms in the left hand.
21 Mr Ireland summarised his findings as follows:
“The diagnosis is loss of function of the left middle finger due to persisting non-union of a fracture of the proximal phalanx, loss of sensation of the radial digital nerve and compromised function of the ulnar digital nerve. Bow stringing of the flexor tendons preventing effective flexor tendon function of the left middle finger.”[7]
[7]DCB 30
22 Mr Ireland considered that the plaintiff’s condition could be improved by further surgical treatment aimed at securing union of the persisting fracture of the proximal phalanx of the middle finger; however, he was of the view that it would not improve the function of the middle finger, but might diminish the pain the plaintiff was experiencing, which might in turn improve its function.[8]
[8]DCB 26-31
23 The plaintiff has not sought any further surgical opinion. He understands that further surgery has been suggested, but said that he has no intention of undergoing more surgery, having already undergone five episodes of surgery.
24 The plaintiff did see Mr Ying, plastic surgeon, who prepared a report dated 4 November 2010 based upon his perusal of the medical records of Mr Dowling. According to the plaintiff, he saw Mr Ying recently, but Mr Ying refused to treat him because he will not involve himself in medical treatment where WorkCover is involved. The report essentially confirms the treatment provided by Mr Dowling which I have summarised above.
25 The plaintiff has not had any medical treatment of any kind for some time. The only medical treatment on the horizon is the prospect of further surgery, which the plaintiff has declined to consider.
26 The plaintiff said that he uses over-the-counter medication to treat the pain he is experiencing daily. He uses Panadol and Nurofen. The plaintiff’s use of medication was probably the only serious matter of controversy in this proceeding. Mr Jens took the plaintiff to the histories taken by three examining medical practitioners who recorded that the plaintiff told them that he is not using any medication. I will return to this matter later in these reasons.
The Plaintiff's consequences
27 In Dwyer v Calco Timbers Pty Ltd (No 2),[9] Ashley JA observed that impairment and the consequences resulting from the impairment are concerned with what has been lost, but the significance of what is lost relevant to the seriousness of consequences may be informed to an extent by what has been retained.[10]
[9][2008] VSCA 260
[10]paragraph 27
28 I have read the transcript of the plaintiff’s evidence and I have given due consideration to the submissions made by Mr Purcell and Mr Jens, and on the basis of the foregoing, I have concluded that the pain and suffering consequences of the impairment of the function of the plaintiff’s dominant left hand are “serious”.
29 My reasons for so finding are as follows:
· The plaintiff has always been dominant left handed. In his early schooling he wrote left handed, but was persuaded to change to being right handed for that purpose. Otherwise he is left handed in all other respects.
· The plaintiff was a very energetic man. He played ice hockey during winter. He played a version of field hockey, played using inline skates. He coached an under 12 hockey team. He is no longer able to engage in hockey at any level.
· The plaintiff attended a gymnasium seven days a week. The impression I obtained from his evidence is that he used a variety of apparatus which required manual dexterity. As an example, he said that he would bench press 140 to 150 kilograms. He attempted to return to a gym to do weight work for about a month or so, but was unable to manage.
· The plaintiff had a range of gymnasium equipment at his home. He had a bench press, leg machine, free weights, chin up bar, an ab machine, a back extension machine and a lap machine. He could not use any of that gymnasium equipment, and as a result, he no longer has any of it.
· According to the measurements taken by Mr Ireland, the plaintiff has about half the grip strength in his dominant left hand when compared with his non-dominant right hand. It is a very significant reduction in grip strength.
· On the domestic front, the plaintiff has an understandable difficulty gripping. He has been unable to grip and hold onto plates, with the result that he has dropped many. He is unable to open jars using his dominant left hand.
· After going on a long car trip, his left hand will ache and feel stiff as a result of gripping the steering wheel for an extended period of time.
· The plaintiff was employed with the defendant, but is now employed by GNS Cabinetmakers. It is a business owned and operated by Mr Greg Stevens. The plaintiff completed his apprenticeship with Mr Stevens. The plaintiff has modified the manner in which he undertakes his work as a cabinetmaker. For example, he grips tools differently to avoid putting pressure through his index and middle fingers. A lot of his work involves using a nail gun rather than using a hammer. He said that he cannot grip a hammer all that well anymore. He tries not to use a hammer held in his left hand, but when he has, it has caused jarring.
· The plaintiff has difficulty undertaking fine manipulative tasks. He has some difficulty dressing because his index and middle fingers are permanently stiff and get in the way. He described having difficulty with fiddly tasks such as when he put up a greenhouse at his home, he found doing up nuts and bolts difficult. His domestic partner assisted him. He was also interested in lapidary, which involved cutting stones into various shapes. He is not able to do that any more.
· The plaintiff continues to suffer from symptoms of pain and stiffness. He said that these symptoms fluctuate. The symptoms are made worse if he exposes his left hand to too much stress and strain when working or if he knocks it. However, he said that he will attempt to do things even though doing them might cause an increase in pain.
30 I accept the plaintiff’s evidence as I have summarised it above. All of the consequences summarised above I find have resulted from the impairment of function of the plaintiff’s dominant left hand.
31 The plaintiff gave his evidence in a straightforward and utterly believable fashion. I consider that the plaintiff is a stoic. He has continued to apply himself in his work and in activities outside work to the best of his ability given the dramatic injury he suffered to his dominant left hand. I accept his evidence that he has tried to get on with his working life and his life outside work, even in the face of engaging in tasks which will increase the pain which he ordinarily experiences.
32 Mr Jens submitted, quite correctly, that the plaintiff has retained a capacity for activity. It is quite clear that the plaintiff can work. He is able to do gardening work. He has a productive life with his domestic partner. However, when a comparison is made between what the plaintiff has lost and what he has retained, I have no hesitation in concluding that the plaintiff’s losses are enormous.
33 The plaintiff was thirty-one years of age when he suffered injury. He was still at an age where he could be very energetic, engaging in two types of hockey, gymnasium exercise and hard work. He is now thirty-eight years of age. He has lost the capacity to engage in the vigorous sporting and recreational pursuits which were part of his life for the last seven years. He will lose those for the balance of the time that he would have been able to engage in those sporting and recreational pursuits. Furthermore, he cannot undertake his work as a cabinetmaker as freely and as effectively as he did previously because of his inability to handle tools used by a cabinetmaker, and fine manipulative tasks are now difficult.
34 It seems to me that the plaintiff’s losses are such to easily meet the statutory test of being at least “very considerable”.
35 I do not propose to consider the alternative basis upon which this application was made, that is, under ss(37)(b), that the disfigurement also constitutes serious injury. I think it does, based upon what I observed at close range of the plaintiff’s dominant left hand and what I have read in the medical reports.
Conclusion
36 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of his employment with the defendant.
37 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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