Whitten v Alcoa Australia Rolled Products
[2012] VCC 2023
•20 December 2012
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-05710
| GRAHAM WHITTEN | Plaintiff |
| v | |
| ALCOA AUSTRALIA ROLLED PRODUCTS | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 12 December 2012 | |
DATE OF JUDGMENT: | 20 December 2012 | |
CASE MAY BE CITED AS: | Whitten v Alcoa Australia Rolled Products | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2023 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – left thumb injury – pain and suffering damages only – whether impairment satisfies the “narrative test”.
Legislation Cited: Accident Compensation Act 1985 s134AB(38)(a) and (b)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health [2008] VSCA 153; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Sumbul v Melbourne All Toya Wreckers [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison SC with Mr A E A MacNab | Slater & Gordon |
| For the Defendant | Mr S A Smith | Sparke Helmore |
HIS HONOUR:
Introduction
1 By way of Originating Motion, Graham Whitten (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings to recover damages for an injury to his left thumb suffered during the course of his employment with Alcoa Australia Rolled Products (“the defendant”) on or about 31 July 2008 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s134AB(37) the Act.
3 The plaintiff gave evidence and was cross-examined. The plaintiff also tendered various documents.[1] The defendant did not call any evidence.
[1]See Annexure “A”
Relevant Legal Principles
4 The Court may not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of (serious injury” contained in s134AB(37) of the Act which reads:
“serious injury means –
(a) permanent serious impairment or loss of a body function …”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the left thumb.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)“the injury” was suffered arising out of or in the course of, or due to the nature of his employment, with the defendant on or after 20 October 1999;[3]
(b)“the injury”, with its resulting impairment, must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c)“the consequences” to the plaintiff of “the injury” in relation to “pain and suffering” must be “serious” – that is, “When judged by comparison with other cases in the range of possible impairments … [can be] fairly described as being more than significant or marked, and as being at least very considerable”.[5]
The test for “serious” is sometimes referred to as the “narrative test”.
[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622
[4]See Barwon Spinners (op cit) at [33]
[5]See 134AB(38)(b) and (c) of the Act
8 In determining the application the Court:
(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[6]
(b)must make the assessment of “serious injury” at the time the application is heard;[7]
(c)must give reasons which are extensive and complete as the Court would give on the trial and action, and, in so doing, disclose the pathway reasoning dealing with the evidence and the issues raised by the application;[8]
(d)notes that it is stated that the question of whether an “injury” satisfies the narrative test is largely a question of impression and value judgment.[9]
[6]See s134AB(38)(h) of the Act
[7]See s134AB(38)(j) of the Act
[8]See s134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at [89]-[92]
[9]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]
The Issues
9 Counsel for the defendant informed the Court there was no issue that the plaintiff had suffered a left thumb injury arising out of or in the course of his employment with the defendant on or about 31 July 2008 and that such injury resulted in some permanent impairment. The issue is whether the consequences of any such impairment satisfy the narrative test – that is to say, a so-called “range case”.[10]
[10]Transcript (“T”) 17, L2 - 9
The Evidence of the Plaintiff
10 The plaintiff gave evidence that he is a “retired operator” and that he had read his affidavit sworn on 16 June 2011[11] and that the contents of such affidavit were “correct”.[12]
[11]See Exhibit 1 at page 23
[12]T18, L18
11 The Court inspected the hands of the plaintiff, in particular the left thumb. On observation, the left thumb seems shorter compared to the right and the distal phalanx of the left thumb appeared “floppy”. When queried about that aspect of the thumb, the plaintiff gave evidence:
“Yeah, I’ve got no control over that whatsoever.”[13]
[13]T18, L7-8
12 With the leave of the Court, Senior Counsel for the plaintiff expanded slightly on the contents of the affidavit and queried the plaintiff about what tools he has difficulty using. The following evidence was given:
“Q: Could you tell His Honour which tools you had difficulty with?---
A: If I’m using electric saws, yes, and my router, picking up screws, using – drilling to screw in screws.
Q: What difficulties do you have with the router?---
A: Well, hanging on to the – the blades to go into the router. I’ve got to hold them in there.
Q: So, I think you’re indicating the cleft between – at the base of your thumb and your forefinger?---
A: Yeah.
Q: Is that where you hold it?---
A: Yes, that’s correct.”[14]
[14]T19, L8-16
13 By way of his affidavit, the plaintiff gave the following pertinent evidence:
· He is a sixty-four-year-old married man with two adult children and six grandchildren.
· He completed Year 8 at the Geelong Technical School and thereafter, worked as a machine operator, labourer and painter.
· He commenced employment with the defendant on or about 18 February 1974.
· On 31 July 2008, he suffered a severe crush injury to his left thumb. He describes the circumstances of such injury as follows:
“5As I was attempting to position a spray box on a trestle, the crane operator lowered the spray box without warning, crushing my left thumb.
6I had about three tonne of steel on my thumb. I suffered excruciating pain. I was wearing thin cotton gloves. When my thumb was released from under the spray box my glove was covered in blood. I could tell that my thumb was in a bad state.”[15]
[15]See Exhibit 1, PCB 24
· He was initially taken to the defendant’s medical centre and thereafter, transported to the Geelong Hospital, where he underwent surgery. He understands the surgery to be an open reduction, with pins and plates being inserted to stabilise his thumb.
· He remained an inpatient for about two days, and on being discharged, he commenced hand therapy for a period of about six weeks.
· On 24 September 2008, he had the “hardware” removed from his left thumb.
· He was off work for about thirteen weeks and on his return to work, he had difficulty using his left hand as he had prior to the injury. Furthermore, he had lost strength in his left arm and had particular difficulty with fine and manipulative-type activity. He continued to work with such difficulties until he accepted a redundancy package in January 2010, and has not returned to any form of work since then.
· In respect to what he refers to as “pain and suffering consequences”, he states:
“14My left thumb constantly aches. The ache is worse when the weather is cold or if I bump my left thumb. I try and protect my left thumb as much as I can.
15My thumb is deformed and movement is restricted.
16My grip strength in my left hand has diminished.
17I have significant difficult with fine and manipulative tasks. I have great difficulty manipulating, picking up and handling small and fine objects with my left hand.
18I often find that my left thumb is colder than my other fingers and I spend considerable time rubbing it to keep it warm. This is particularly the case during the winter months.
19I am now prone to dropping things that I am holding in my left hand. I have suffered a loss of sensation in my left thumb. At times when my thumb aches I take Panadol.
20At times I get woken up with pain in my thumb at night.
21Prior to suffering injury I used to enjoy fishing, woodwork, gardening, home maintenance, fixing toys for my grandchildren, painting and cycling. As a result of the injury to my left thumb, I have had to modify the way I use my left hand. I have always enjoyed working with my hands. I have a shed full of tools. I am no longer able to use tools as I used to. I still try and do as much as I can with the tools, however, I have had to modify how I use them and at times I am clumsy and awkward when using my left hand.
22I have difficulty setting up my fishing line with hooks and sinkers. I also now have difficulty shelling prawns. I find this extremely annoying because I love my prawns. When I ride a bike I have difficulty changing gears with my left hand because the bike gears are designed for riders to use their thumbs to change the gears.
23There are many daily activities that remind me of the difficulties I have with my left thumb. For example, I have difficulty doing up buttons on shirts. I often need to call on my wife to help me out.
24 I now use my right hand for many daily activities, much more than what I used to.”[16]
[16]See Exhibit 1, PCB 25-27
14 Under cross-examination, the plaintiff gave the following pertinent evidence:
· He was made redundant in January 2010, together with another ninety people. He accepted that he “probably would have taken it” [the redundancy] even if he had not suffered the injury.
· The thumb aches in cold weather. In particular, the following evidence was given:
HIS HONOUR:
“Q: I think what counsel are asking, though, Mr Whitten, is that the ache in the cold weather, is that the only pain you suffer?---
A: That’s – it varies. If I’m working doing things I get pain, but if I’m not I don’t get so much pain, but it’s when I’m in the cold weather it gets real bad.
Q: That’s when you feel it?---
A: Yes.”[17]
[17]T22, L2-8
· There is a bit of tingling in the tip of the thumb.
· If he leaves his hand outside bedcovers during the night, and his hand gets cold, the thumb commences to ache.
· He does not want to proceed to any further surgery on the thumb, although he accepted that Professor Behan said surgery could help him but it might not. He would consider surgery if “things … deteriorated over the years … .”[18]
[18]T24, L17-18
· He has never been prescribed a script for pain relief and just takes Panadol as and when required.
· He agreed that it was “probably” correct that between the date of the injury and December 2011, he attended his general practitioner on thirty eight separate occasions for various medical conditions and prescriptions for diabetes and blood pressure issues.
· Over that period, he has only consulted the doctor on three occasions in relation to the thumb, the first being on 14 October 2008 in order to obtain a certificate so he could return to full duties at Alcoa, and the second occasion being on 27 June 2011, when he requested that an x‑ray be undertaken so he could forward such x-ray to Professor Behan, who was to examine him for medico-legal purposes.
· His redundancy was on 4 January 2010, and from when he returned to work after the injury up to his redundancy, he performed the same type of work as that prior to the injury. In particular, the following evidence was given:
“Q: Sorry, I meant when you went back to work, did the doctor say don’t do that aspect of your job or anything like that?---
A: The plant doctor said to me if I go back to work, if you have problems, come back and see me.
Q: Did you have any problems though, that - - -?---
A: I didn’t really have any problems, I just had to modify the way I done the job.
Q: I see?---
A: Instead of doing it in two hands, I had to do it with one.
… .”
MR SMITH:
“Q: So no trips to any doctor in the 15 or so months after you go back to work, with complaints about problems with work?---
A: Well, I’ve been a worker all my life. I just get on with the job.”[19]
[19]T26, L24 – T27, L6
· He accepted that it was a “correct” description of his duties given by Mr David Jacobs, wherein Mr Jacobs stated:
“Graham’s day to day activities included removing moulds from spray boxes which involved the manual removal of nuts, bolts and screws. He would clean moulds using soap and water as well as on a reasonable regular basis (not necessarily every day) using a drill bit and drill to clean out about 200 x 3mm holes. He would also clean bottom blocks using a 9” disc grinder with a buffing and sanding attachment to clean the bottom blocks removing any carbon deposits. He was also involved in general house cleaning duties. He was primarily involved in the disassembly and assembly of moulds.”[20]
[20]See DCB 34 at paragraph 11
·When queried about certain aspects of his job, so described, he stated:
“Q: When you say for the spray boxes, before you actually lift them out you have to undo nuts and bolts and screws, do you?---
A: Yes. You’ve got to undo the nuts and bolts.
Q: How do you go about that, with spanners or what?---
A: There’s two bolts on each side of the – each corner of the mould.
Q: Yes?---
A: And you have to undo them and take them out.
Q: With spanners or wrenches or - - -?---
A: Yes. We used to have an impact gun but then putting them back in, I used to be able to do two at a time, and now I can only do one at a time.
Q: You had to [use] your right hand on both sides?---
A: Both sides which slowed me down but I done the job.
Q: The drill, what was the drill involving? What did you have to do with the drill?---
A: Drilling the – you’ve got dirt and stuff in these holes and the water running through them all the time.
Q: Would the drill require you to use both hands or one hand or what?---
A: Both hands.
Q: How did you go about that? Was that difficult?---
A: Holding like that (demonstrating).
Q: I see, and then using a disc grinder, what did that involve?---
A: Buffing – I had to hang onto the handle there and yes, you just had to be careful it didn’t bump your thumb.
Q: It said you were involved in general house cleaning duties what does that mean?---
A: Pushing a broom.”[21]
[21]T29, L30-T30, L24
·He would use a screwdriver which had an impact gun which would undo the screws and then he had to go around and lift them out. He had to be “careful” lifting out the various screws. In particular, the following evidence was given:
“Q: Did you use your left hand or right or what doing that sort of operation?---
A: Well, I used to use my left but I had to be careful how I took them and put them in the tin.
Q: Why did you have to be careful? What was the problem?---
A: Well, they were only small. I kept dropping them.
... .”
MR SMITH:
“Q: So you would modify some things, the way you did things?---
A: Yes.
Q: But you do the full range of duties?---
A: I just done my duties, yes.
Q: And you used both hands to do them?---
A: Yes. Sometimes I couldn’t.
Q: Most of the time you did though?---
A: No, no.
Q: Unscrewing the screws, you would use your left as well as your right hand for that?---
A: Putting the screws back in the mould, I could only use my right hand.
Q: Taking them out you would use both?---
A: Yes, because you undo them right out and then you’ve just got to lift them out.”[22]
[22]T32, L2-19
·He has an interest in caravanning and had had a caravan for ten to eleven years before his injury, but has now replaced that caravan with a bigger one which was bought about twelve to eighteen months before his redundancy.
·Such caravan has a roll-out awning.
·Since his redundancy, he has done a couple of trips in the caravan, including trips to Tathra and Mildura.
·He accepted that there was nothing about the condition of his thumb which stops him from travelling around Australia in his caravan. He does not do that much travel because of financial issues and he does not want to go away for long periods of time.
·He accepted he can hitch the caravan on and off the back of his four-wheel-drive and drive without any problems.
·When going to Moama every Easter, he and his wife take mountain bikes, which they do not always ride, but they generally ride around Bright.
·He rides for about an hour, and when in the Geelong area, they ride down to Fyansford and back along the bike track at Queens Park, which would probably involve half-an-hour each way.
·When caravanning, the bikes are attached to the caravan.
·He goes fishing in the warmer earlier months of the year and tends to fish at the new Barwon Heads bridge.
·He goes fishing whenever he has got the “time” available.
·The ages of his grandchildren range from five-and-three-quarters through to fourteen.
·Yesterday, he was babysitting his granddaughter and has done a fair bit of babysitting over the years.
·He would babysit one or other of his grandchildren two or three days a week and he has them for a fair bit of the day, depending on the hours of work of his daughter.
·He looks after his grandchildren as his wife works part-time. He minded a child yesterday from 9am to 2pm and during that time, his wife was at work. The attendance of the grandchild involved him making jellies and peaches for her the night before, and preparing her lunch. He also took her to the park at Gateway Sanctuary, where she played in the playground.
·He has difficulty picking up his grandchildren and fixing their toys.
·Another reason he does not go fishing as much as possible is that he is doing “the housework”. In particular, he gave the following evidence:
“Q: What things do you look after around the house?---
A: Make the bed, vacuum, being (sic) ironing for over 30 years. I am very domesticated.
Q: Cook meals?---
A: Beg your pardon?
Q: Cook meals?---
A: Yes.
Q: Clean the bathrooms?---
A: Beg your pardon?
Q: Clean the bathrooms?---
A: Clean the bathroom, scrub the toilet, mop the floors.
Q: Mow the lawns?---
A: Yes.
Q: Do the gardens?---
A: My wife usually does the gardening.
Q: Is that because it’s her interest? She likes gardening?---
A: Yes.
Q: Your house is, is this fair, it’s in fairly spick and span condition?---
A: Yes.
Q: And it’s fair to say you do all of those things without any real problems with your thumb?---
A: I’ve just to modify the way I do things.”[23]
[23]T41, L2-17
·He explained that he modifies the way he sets up a fishing line with hooks and sinkers by hanging onto the hook with a pair of pliers for the pliers to effectively become the extension of his hand.
·His fishes and rides his bike as much as he wants to.
·In riding his bike, there are three gears on the left-hand side, although the majority of gears are on the right-hand side of the handles. When he has to use the left-handed side gears, he has to move it with his thumbs and it is “awkward”.
·After confirming that it was a “very good package” and he found it attractive, the following evidence was given:
“Q: Is this correct? Now that you’ve taken the package and you’re out of the workforce, you’re basically living the lifestyle that you wanted in your retirement? You are looking at - - - ?---
A: No, that’s not correct.
Q: Well, you’re looking after your grandkids, you’re fishing when you’re able, you’re going on caravanning trips, you’re riding your bike as much as you want to, and - - -?---
A: I’m not going on as many caravan trips as I’d like to.
Q: And that’s a question of finances, isn’t it?---
A: No, not really. My wife works.
Q: But the reason you’re not going on as many caravan trips as you’d like to, is nothing to do with your thumb, it’s to do with your wife’s availability, your finances, things of that nature?---
A: Yes. I’ve – my – my thumb doesn’t come into it.”[24]
[24]T44, L13-27
·He describes that woodworking is an interest and that he made toys for his grandchildren when they were younger. He also described that he has made bookshelves and a bookshelf for his sister-in-law.
·In particular, the plaintiff gave the following evidence:
HIS HONOUR:
“Q: What sort of tools do you have in the shed in relation to your woodwork? Do you have saws, electric saws?---
A: I’ve got a few electric saws, router, four hand drills.
Q: Do you use them now?---
A: Yeah. But I’ve just got to modify the way I – I’ve got a drill stand where you wind the handle down to – to drill and if you’re hanging on to something it’s very awkward.”[25]
[25]T45, L18-25
· He made the bookcase for his sister-in-law earlier this year. He last made a toy for his grandchildren probably two years ago, and that was a doll’s house.
· He accepted that there is nothing that he was planning to make that he has not been able to make because of his thumb, but added that he just has to “modify the way I do things”.
· He cannot text with both hands but is able to text with one hand, and cannot operate the garage remote of his right hand.
· When queried about the worst effect brought about by his thumb injury, he stated:
“Just the frustration of when you try to do things and you can’t handle it.”[26]
·For example, eating prawns, which he enjoys, involves shelling the prawns, and although he can do it, it is “very difficult”, as is cracking an egg open.
[26]T47, L22-23
15 Under re-examination, the plaintiff gave the following pertinent evidence:
·Although he has no trouble driving his car – a Ford Ranger – he has difficulty driving his wife’s car, which is a Falcon. In particular, the car is designed that the handbrake is on the left side and requires the pushing of a button to release the handbrake. Also putting it out of ‘park’ and into gear is “very awkward”. He drives his wife’s car on a reasonably regular basis – probably four times a week.
·He does not have the same trouble in relation to the handbrake in his car, but does have some difficulty getting the gear out of ‘park’ into ‘drive’.
·He wears woollen gloves to keep his finger warm in cold weather, and although he did this occasionally before the injury, he now does it regularly in cold weather.
·Although he went back to his normal job and performed his duties, he was slower because of the difficulties with his left thumb. After a day’s work with the defendant, his thumb got “terribly sore … in the gristle”.[27]
·He confirmed that although he had to be careful at work using the various tools to avoid bumping his thumb, he “made sure I didn’t bump it because I knew it hurt”.
·He has played Lego with his grandchildren and he does that with “difficulty” and had to modify the way he does it.
·He has no difficulty helping his grandchildren dress.
·He has trouble with “lolly papers” and the ones that he particularly likes he either has to get his wife to unwrap them or carry a pair of pocket scissors to open the packet.
·His left thumb feels sore after an hour’s riding if he has had to operate the first and second settings of the gears on the left-hand side of the bike.
·When cooking, he has difficulty cutting tomatoes because they tend to slip out of his hand.
·Drying dishes is the worst and he has broken dishes because they slip out of his left hand.
[27]T51, L18-19
The Medical Evidence Relied on by the Plaintiff
16 The plaintiff has undergone the following investigations:
(a)Plain x-ray of the left thumb at the Emergency Department of the Geelong Hospital on 31 July 2008.[28] The radiologist concluded:
[28]See Exhibit 2, PCB51
“Compound comminuted intra-articular fracture and dislocation of the distal phalanx of the left thumb.”
(b)Plain x-ray of the left thumb on 29 June 2011.[29] The radiologist concluded:
“Findings: there was an old, severely comminuted fracture of the 1st left distal phalanx.
The various fragments appear to be well corticated in keeping with an old fracture. The maximal displacement was probably around 4mm or so.”
[29]See Exhibit 2, PCB52
17 A report from the Geelong Hospital indicates that the plaintiff was admitted to the hospital on 31 July 2008 with a crush injury to his left thumb said to have occurred at work. He was found to have an intra-articular fracture of the distal phalanx of the left thumb with an open wound. This fracture was comminuted.
18 On 1 August 2008, under local anaesthesia and intravenous antibiotic cover, an operation was carried out, at which time the wound was explored, washed out and debrided, and the comminuted fracture of the distal phalanx was immobilised with K-wire. The nail plate in the finger was removed and the nail bed was repaired.
19 The plaintiff was discharged on 2 August 2008 and referred to the Hand Therapy Clinic. On 24 September 2008, the plaintiff returned to the Day Stay Centre for removal of the K-wires.
20 Dr M Marshall from the Kensington Hill Medical Centre (Leopold) reports that he consulted with the plaintiff on 14 October 2008 to provide a certificate that he was fit to return to work. Dr Marshall notes that:
“At that time he had a certificate from Geelong Hospital until 17 October 2008, and was fit and happy to return to work on 18 October 2008. He was at that time having physiotherapy and his thumb movements were improving”[30]
[30]See Exhibit 2, PCB56
21 Seemingly, the plaintiff was referred from a Dr T Jones to the hand specialist, Mr D Ireland, who consulted with him on or about 20 June 2012. In a report of the same date, he states, in part[31]:
“ … He has an unstable non union of the distal phalanx. The proximal fragment is flexed to 90° and it is on the point of this fragment that he feels tenderness. The unstable non union involves the distal 1.5cm of the thumb. The thumb is otherwise normal with normal sensation.
I believe he would benefit by surgery to stabilise the distal phalanx. This would require a bone grafting procedure. It may not restore any motion to the IP joint but simply stabilising the bone would give him more function with this thumb and address the tenderness over the non union. … ,”
[31]See Exhibit 2, PCB56A
Medico-Legal Evidence
22 The solicitors for the plaintiff arranged for the plaintiff to be examined by the following specialists:
(a)the plastic and reconstructive surgeon, Professor F Behan, on 12 July 2011;[32]
(b) the plastic and reconstructive surgeon, Mr J Anstee, on 5 July 2012.[33]
[32]See report of same date, Exhibit 2, PCB57
[33]See report of same date, Exhibit 2, PCB104
23 The plaintiff also relies on the medico-legal reports of the plastic and hand surgeon, Mr M J Stapleton, who examined the plaintiff on 24 May 2010[34] and on 5 October 2011 on behalf of the defendant.[35]
[34]See report of same date, Exhibit 3, DCB2
[35]See report of same date, Exhibit 3, DCB8
24 Mr Stapleton also supplied a supplementary report dated 23 November 2011.[36]
[36]See Exhibit 3, DCB13
25 At his initial consultation with Professor Behan, the plaintiff made the following complaints:
(a) There is no flexor power in the terminal phalanx of the left thumb which restricts power grip, pincer grip and key-holding grip;
(b) The thumb feels “wobbly”, and although on examination there is passive flexion to 45 degrees, the thumb appears unstable in relation to tendon function;
(c) He experiences cold-weather sensitivity in the injured digit;
(d) The nail on the left thumb is somewhat deformed and thickened, making it more difficult pare;
(e) There is some dysthaesia and sense of loss in the terminal phalanx;
(f) Domestically, his deficiency and left-hand grip makes him prone to dropping items such as glasses;
(g) He is restricted in the making of children’s toys, fishing and the changing of gears on his bike.
26 Professor Behan diagnosed compression injury with comminuted fracture of the terminal phalanx of the left thumb and he recommended that consideration should be given to diffusion at the level of the interphalangeal joint.
27 Professor Behan considered that the plaintiff was restricted in relation to the use of his left hand for lifting, pushing and pulling, and also in relation to tasks involving either power, grip or fine dexterous movements of the left hand. He also accepted that it was a reasonable complaint that the plaintiff experiences sensitivity in the thumb during cold weather.
28 At the time of his second examination, the plaintiff again complained of poor pincer activity and flexor range of movement. Furthermore, there was a persistent tensile pulp point which is hypersensitive and disrupts normal pincer activity.
29 At that consultation, the plaintiff noted it was hard to mow with his John Deere motor mower and that he had some difficulty in doing some normal everyday tasks, such as doing up buttons or shoelaces.
30 Although he had ceased to work with the defendant and was now “retired”, he was experiencing some financial difficulties and considering a return to the workforce in his former trade as a painter.
31 Tasks which require frequent pincer grip precipitated pain and there was difficulty in activities such as turning the pages of newspapers due to the loss of pulp of the left thumb.
32 In his report dated 29 May 2012, Mr Behan states, in part:
“1The patient sustained a comminuted fracture to the terminal phalanx of the (L) thumb (non-dominant side) in an accident at work on or about 31 July 2008.
2I would certainly consider the patient’s employment to be a significant contributing factor to the current impairment of the (L) thumb, with persisting non-union of the fracture of the terminal phalanx together with sensory disturbance and pseudo-tenodesis preventing normal flexor movement.
3The patient does experience restrictions in relation to tasks requiring either power grip or pincer grip with the (L) hand, as well as tasks requiring fine and manipulative use of the (L) thumb, and this is likely to persist for the foreseeable future, barring further treatment.”[37]
[37]See Exhibit 2, PCB 87−88
33 Professor Behan also responded in relation to the possible development of Dupuytren’s contracture in the left hand. He stated:
“On palpation today one can feel three bands extending up to the middle, ring and little fingers, which are palpable when the fingers are pulled into hyperextension. This is on the non-dominant side, sometimes consistent with early onset. Immobilisation is part of the aetiology for this condition, which in conjunction with a diathesis can contribute to early presentation and John Hueston identified immobilisation following an injury as a factor which could precipitate nodular contracture in a patient with the diathesis. Other aetiological factors include family history, personal history, genetics, dominance, function, power, injury, alcoholic intake, and epilepsy. While I do note the patient had two seizures five years ago and is now on anti-epileptic treatment and this may be a contributing factor, however the immobilisation following trauma in my mind would be the factor which brought this to a head prematurely in a patient with such a diathesis. In time I think this will come to surgical intervention with a fasciectomy, however at present the patient has the flat hand positive technique and there is no need for present management other than a 6-monthly or 12-monthly review… .”[38]
[38]See Exhibit 2, PCB 88−89
34 When seen by Mr Anstee, the plaintiff made the following complaints:
(a) His left thumb is shorter than his right thumb;
(b) The end of his left thumb is “floppy”;
(c) Every task involving the left hand has been made more difficult and, in some cases, impossible by virtue of the injury;
(d) He cannot perform fine, manipulative tasks with the left hand;
(e) When helping with cooking, washing plates or glasses, they do slip from the left hand;
(f) He finds it hard to use tools in his workshop (whenever); he has difficulty doing up the buttons of his shirt, in particular those of his white caff;
(g) It is tender over the mid point of the thumb top;
(h) He has a nail deformity which makes the trimming of nails more difficult.
35 After examination, Mr Anstee found the plaintiff to be a pleasant, co-operative man who did not seem to be exaggerating his problems. Mr Anstee considered he had suffered considerable injury and, despite appropriate treatment, he is left with a significant impairment involving a floppy thumb tip which interferes with most or all left-handed tasks.
36 Mr Anstee emphasised that the plaintiff had lost significant left thumb function, and the fine manipulative use of the thumb and index finger pinch would be grossly affected.
37 Mr Anstee considered the plaintiff would be precluded or restricted in lifting, pushing or pulling with the left hand, the use of tools and plant and equipment with the left hand, repetitive or prolonged use of the left hand, operating plant or equipment with the left hand and finer manipulative use of the left hand.
38 However, Mr Anstee considered the plaintiff was not precluded from performing any duties for which he was suited prior to the injury, but is now slower and less efficient. Furthermore, he was able to attend to his hobbies, as outlined above, but is less efficient than he was prior to the injury.
39 When initially seen by Mr Stapleton, the plaintiff complained that he has pain in the left thumb on a cold morning or, if he bumped it. He also complained of reduced grip strength and manipulating small objects with his left hand due to the lack of flexion capacity of the thumb.
40 Mr Stapleton diagnosed a severe crushing injury to the plaintiff’s left thumb with the symptoms and restrictions noted consistent with such a diagnosis. He did not detect any aspect of exaggeration.
41 When last seen, Mr Stapleton noted the complaints of the plaintiff to be:
(a) The left thumb aches in cold weather;
(b) He is clumsy because his ability to pick up fine objects is diminished, not only because of lack of thumb length but because the tip of the left thumb is unstable because of the non-union of the shaft fracture of the distal phalanx;
(c) Performing activities with small objects, such as doing up buttons, are a problem for him and his grip strength is diminished and much less efficient, causing him to drop things, particularly dishes and glasses.
Analysis of the Evidence
42 I find that the plaintiff suffered a crushing injury to his left thumb during the course of his employment with the defendant on 31 July 2008. Furthermore, I find that such injury has resulted in permanent impairment and some organic consequences. So much is not disputed by the defendant.
43 The issue on which the plaintiff has the onus is whether such consequences satisfy the requirements of the narrative test.
44 I found the plaintiff to be a witness of credit who, at all times, was attempting to give honest and accurate answers to the questions posed to him. Consistent with the comments of Mr Stapleton (who examined the plaintiff on behalf of the defendant) and Mr Anstee, I consider that the plaintiff was in no way attempting to embellish or exaggerate the circumstances and effects of the injury.
45 I make the following relevant findings of fact:
(a) The plaintiff is a sixty-four year old married man who has now been retired since 4 January 2010. He has two adult children and six grandchildren;
(b) He is naturally right handed;
(c) He commenced employment with the defendant and has had an impeccable work record from 18 February 1974 until his redundancy on 4 January 2010. I do find that he accepted the redundancy offered by the defendant because he found the terms of such redundancy very attractive and maybe had some concerns as to the future of the defendant’s plant. In particular, I do not find that his left thumb injury played any role in the circumstances causing him to accept the redundancy;
(d) After the occurrence of the injury, he was off work until about October 2008 and thereafter, resumed his pre-injury duties, which he continued until he was made redundant. Although he performed such duties in a slower way due to difficulties with his left thumb, he lost no time off work or attended any doctor for medical treatment. Indeed, he attended Dr M Marshall on 14 October 2008 seeking a certificate that he was fit to return to work as from 18 October 2008;
(e) As a result of the crush fracture, the plaintiff has suffered a compound comminuted intra-articular fracture and dislocation of the distal phalanx of the left thumb. This was initially treated with K-wire, but recent x-ray images show almost complete non-union at the terminal phalanx;
(f) As a result of the left thumb injury, I find the plaintiff would have difficulty in relation to tasks involving power grip, pincer grip or fine dexterous movements of the left hand;
(g) In particular, I find the left thumb is shorter than the right thumb and that the distal phalanx of the left thumb is “floppy”, consistent with the non-union of that phalanx;
(h) The left thumb has some diminished sensation and some tenderness on the thumb pulp;
(i) I also find that the plaintiff does experience some pain in his left thumb during cold weather and if he has used his left hand for an extended period;
(j) The plaintiff has had no treatment in relation to his left thumb, takes no prescription medication and only the occasional Panadol.
46 In determining the main issue, I am assisted by the following decisions:
(a) In Sabo v George Weston Foods,[39] the Court of Appeal (consisting of Neave and Mandie JJA) stated:
[39]Op cit
“In considering whether Mr Sabo[’s] impairment is ‘at least very considerable’ weight must be given to the adverb ‘very’. As Callaway JA said in TAC v Dennis:
‘Many [impairments] are considerable, in the sense that they are important or substantial without being very considerable’.”
(b) I refer to Sumbul v Melbourne All Toya Wreckers,[40] wherein Chernov JA stated:
[40][2006] VSCA 292 at [24]
“If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable’.”
These words were later clarified by Ashley JA and Beach AJA in Stijepic v One Force Group Aust Pty Ltd & Anor,[41] wherein they stated:
[41][2009] VSCA 181 at [47]
“… it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered. …”
(c)I also refer to Dwyer v Calco Timbers Pty Ltd (No 2),[42] wherein Ashley JA stated:
[42][2008] VSCA 260 at [27]
“… I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
(d)I also refer to Haden Engineering Pty Ltd v McKinnon,[43] where Maxwell P stated:
“[T]he ‘pain and suffering’ consequence of an injury encumbers both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.
The Experience of Pain
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant the court will also need to assess the frequency and duration of the pain episodes …”
[43](2010) 31 VR 1 at [9]−[11]
47 After consideration of all the evidence, I am, unfortunately, not persuaded that the plaintiff has discharged his onus in relation to the narrative test. I consider that when judged by comparison with other cases in the range of possible impairments, the consequences suffered by the plaintiff may be fairly described as “significant” or “marked”. They are not “very considerable”.
48 I have reached such conclusion for the following reasons:
(a) The plaintiff clearly demonstrated his capacity to perform his pre-injury duties for approximately eighteen months until his redundancy, which was unconnected with his left thumb injury. Although I accept that the work may well have been performed in a slower way, and there was difficulty with finer tasks involving the left hand, the plaintiff lost no time off work, sought no medical treatment and had no change of duties;
(b) Although there is reference in one of the medical reports to the plaintiff contemplating looking for alternative employment, there was no evidence from the plaintiff to this effect. Indeed, although the plaintiff made reference on a couple of occasions as to being careful about money matters, I gained the impression that he was enjoying his retirement, which allowed him to look after his grandchildren when required, and to perform such activities as fishing, cycling and caravanning;
(c) Since ceasing work, the plaintiff has not required any medical treatment or any prescription medication, although I do accept he takes the occasional Panadol to control any pain in the left thumb area;
(d) I gained the impression that such activities as caravanning, woodwork, fishing, riding bicycles and activities with his grandchildren have continued, albeit with some modification as required. For example, the plaintiff described that when he fishes, sometimes he tends to use a pair of pliers in his left hand to hold the hook so that he can attach the line or a sinker as required.
49 Of course, that is not to say that he does not experience some pain in the left thumb when cycling or at times when he is exposed to cold weather, for example. However, again, he sensibly takes the view he wears a glove to avoid such a condition occurring.
50 He gave evidence that, with his wife working, he performs all the household activities involving cleaning, washing and shopping, and also prepares meals. Again, although he made the complaint that cracking eggs or cutting tomatoes is difficult, such can be undertaken with appropriate modification. I do accept that he may have difficulty in utilising his left hand in operating a television remote control, or indeed a garage remote control, but again, he uses his dominant right hand for those activities. He may have difficulty opening lolly papers utilising both hands.
51 Given that the plaintiff has retired from employment for reasons unconnected with his thumb injury, any pain and suffering consequences as a result of the left thumb impairment, when assessed as at today’s date, are concerned with the level of pain suffered by the plaintiff and the impact of his left thumb impairment on his day-to-day retirement activities.
52
Although the distal phalanx of the left thumb is “floppy”, which in turn clearly affects the pincer grip of the left hand, it cannot be said, in my view, that the experience of pain is such that it warrants a finding of “serious injury” or any particular activity or activities has been impacted on to the extent that a
“serious injury” can be found. In general, the plaintiff has been able to pursue his domestic and recreational activities with varying degrees of modification in how he goes about performing such activities.
53 I also note that Professor Behan has expressed the opinion that there are signs that the plaintiff is commencing to experience Dupuytren’s contracture, which he considers, in part, has been brought about by the lack of use of the left hand. No other doctor has made comment in relation to that condition. In any event, I consider that even if one assumes such a condition is emerging, there is no evidence before me that functional limitations of his left hand, and in particular his left thumb, would be any greater than what the plaintiff now experiences.
54 Accordingly, I dismiss the application and I will hear the parties on the issue of costs.
Annexure “A”
The plaintiff tendered the following material:
Exhibit 1
·Affidavit of the plaintiff sworn 16 June 2011
·Letter from Alcoa dated 6 July 2010
All such documents found at pages 23-27 and 30-38 in the Plaintiff’s Court Book (“PCB”).
Exhibit 2
· X-ray of the left thumb dated 31 July 2008
· X-ray of the left thumb dated 29 June 2011
· Report from Dr P Mestitz dated 19 February 2010
· Barwon Health Operation record
· Report of Dr M Marshall dated 3 March 2010
· Letter from D Ireland to Dr T Jones dated 20 June 2012
· Medical reports of Associate Professor F Behan dated 12 July 2011 and 29 May 2012
· Medical report of Mr J Anstee dated 5 July 2012
All such documents found at pages 51-112 PCB.
Exhibit 3
· Medical reports of Mr M Stapleton dated 24 May 2010, 5 October 2011 and 23 October 2011.
All such reports found at pages 2-13 of the Defendant’s Court Book (“DCB”).
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