Wishart v Aero Manufacturing Aust Pty Ltd
[2009] VCC 462
•15 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-03984
| DAVID WISHART | Plaintiff |
| v | |
| AERO MANUFACTURING AUST PTY LTD | Defendant |
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| JUDGE: | Her Honour Judge Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 May 2009 |
| DATE OF JUDGMENT: (with oral | 15 May 2009 |
| reasons) | |
| CASE MAY BE CITED AS: | Wishart v. Aero Manufacturing Aust Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 462 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious Injury Application – Accident Compensation Act 1985 – s134AB(16)(b) – permanent serious impairment or loss of a body function – injury to left hand – partial loss of fingers – pain and suffering
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A.J. Moulds | Rennick Briggs |
| For the Defendant | Mr R.J. Stanley QC | Wisewoulds |
| Ms S.M. Taaffe | ||
| HER HONOUR: |
1 I propose to give oral reasons for decision in this matter.
2 Mr Wishart seeks leave to issue proceedings for the recovery of damages for pain and suffering in respect of an injury he suffered to his left hand in a workplace injury on 19 December 2005 during the course of his employment with the defendant when his left hand was caught between the rollers of a sheet metal roller. He suffered a de-gloving injury to the ring and middle fingers of his left hand. The ring finger was amputated in the accident and was too badly damaged to be replanted. He had surgery to repair the site of the amputation and a skin flap was created to cover the middle finger, which has been shortened and lost about 50% of the nail bed. Two weeks after the accident, he had further surgery to divide the skin flap.
3 The plaintiff says he has suffered a permanent long term impairment of the function the left hand the left hand as well as permanent disfigurement of the left hand. He says he has suffered a serious injury under paragraphs (a) and (b) of the definition of serious injury in s.134AB(37) of the Accident Compensation Act 1985.
4 The parties agree that the plaintiff has suffered a permanent impairment of the function of the left hand as well as permanent disfigurement of the left hand. However, the defendant says that leave ought not be granted because the plaintiff has not met the required test for serious injury under either paragraph (a) or (b) of the definition of serious injury, namely that the pain and suffering consequences of his impairment or disfigurement, when compared with other cases in the range of possible impairments and loss of body function or permanent disfigurement as the case may be, may fairly be described as being more than significant or marked, and as being at least very considerable.
5 It was common ground that in deciding such cases there was an element of value judgment to be exercised. It was also conceded by the defendant that in relation to the claim for disfigurement, the Court was entitled to consider the pain suffered by the plaintiff along with any embarrassment suffered by him as a consequence of his permanent disfigurement as part of the pain and suffering consequences of that permanent disfigurement.
6 The defendant tendered no evidence, and in particular did not rely on the two medico-legal reports of Mr Stapleton and Mr Moran, who examined the plaintiff in June and July 2007. I draw the inference that these reports would not have assisted the defendant.
7 I do not propose to canvass all the evidence in detail. I note the report of the plaintiff’s treating general practitioner, Dr Wood, dated 24 January 2008, particularly his comments as follows:
"It is also of note that his left third finger has been shortened and he has lost about 50% of the nail bed. He continues to suffer phantom pain, especially at night time and with cold weather. He treats this with Panadeine intermittently and by keeping his hand warm. On examination his left hand is marginally cooler than his right hand. He also suffers from decreased dexterity and fine motor movement, that is he finds it hard to pick up nails and screws or to find car keys in his pocket. He suffers from sharp pain when trying to use his hand, for example, to find things in his pockets.
With respect to gross motor skills, he has pain after some 15 golf strokes, and has limited ability for heavy work, that is he needs to wear gloves when shovelling and needs frequent rest breaks or else his pain becomes quite severe.
It is now some two years and one month since Mr Wishart suffered his injury. I believe his injury has stabilised and that he will continue to suffer long term from the conditions I have described above. I believe he has had extensive physiotherapy and hand therapy, however, he remains unable to properly form a fist with his left hand. I do not believe with respect to his sensation, pain, dexterity or strength and range of motion, that this hand will improve any further. I also afraid that without the continued intermittent hand therapy, that he will in fact have a diminished range of motion and dexterity if they were to be ceased.
With respect to Mr Wishart's injury affecting his enjoyment of life, I think the prime example would be his desire for yachting. Prior to the accident he used to yacht and sail regularly. Since his injury he has been unable to use the yacht due to (1) decreased power of his left hand when using ropes; (2) dexterity, tying and untying ropes; (3) decreased power in his left hand to pull the ropes; and (4) pain when he actually holds onto something firm with his left hand, particularly in the stump of his left fourth finger.
8 Dr Wood concluded:
"He finds it impossible to grip firmly with his left hand for any sustained period, that is greater than a minute, he finds gardening difficult as he cannot sustain power in his left hand, that is shovelling or raking is very difficult for him. With respect to the vibrations of the lawn mower he finds it difficult unless he wears very thick gloves in his left hand. The vibrations cause pain in his left hand. For the few months after his accident Mr Wishart found it very difficult to hold his baby who was 12 months at the time. He found this extremely frustrating. I am pleased to report that he can now easily nurse his child.
Mr Wishart's sleep was somewhat affected by his phantom pain, altered sensation and coldness of his left hand…. he will carry these injuries and the disability of these injuries in the long term".
9 The treating surgeon, Mr Pennington, reported on 21 January 2008 (at page 2 of his report):
Mr Wishart has suffered amputation of part of the ring finger of the left hand which is a permanent loss with consequential psychological effect. He will have a permanent reduction in function of the left hand. He had a significant period of loss of use of the left hand and ongoing hand therapy for several months, and a significant amount of pain.
The fingertip is an extremely sensitive area and injuries to the tip of the finger tend to be painful for long periods. They are quite tender when knocked and this can go on for months and even years. Injuries of this type tend to cause pain and discomfort in cold weather which can limit activities during the winter months, and although this sometimes improves over subsequent years, it can effectively become permanent.
Further details on this question would require a separate assessment.
10 Finally, Mr Anstey, surgeon, examined the plaintiff and reported in May 2008 (at page 2 of his report):
Mr Wishart's hand healed satisfactorily after surgery, but despite intensive hand therapy he has an incomplete recovery in the range of movement of the fingers of the left hand. Mr Wishart has a number of complaints of his injury. These include any exposure of the left hand to vibration causes him pain. If he should put his hand in his pocket he finds it difficult to know what is in that pocket. He delegates some of his jobs at work including heavy lifting. He is concerned by the appearance of the hand. Relatively minor trauma to the amputation stump gives him quite severe pain which may last for ten seconds or so.
On examination I found a pleasant cooperative man who does not seem to be exaggerating his problems. The left ring finger has been amputated at about the mid point of the intermediate phalanx. Sensation is impaired over the palmar surface of the intermediate and distal phalanx of the left middle finger. These problems, together with a decreased range of movement will be seen in the accompanying chart.
In answer to your specific questions, Mr Wishart suffered a crush injury to the middle ring and little fingers of the left hand. The left index finger, while not initially injured was used as a donor site to cover the (indistinct) palmar aspect of the left middle aspect. It has some abnormal motion because of that procedure.
Diagnosis is that of an extensive crush injury to middle ring and little fingers of the left hand with abnormal motion in the left index finger, due to the harvesting of the cross finger flap.
He has suffered a significant hand injury and as will be seen from the accompanying charts has a total loss of part of the ring finger together with abnormal sensation in the left middle finger and abnormal motion in all fingers of the left hand. He also has significant tenderness in the amputation stump.
Although Mr Wishart may not deteriorate significantly with the passage of time, he will on the other hand not improve significantly from this point. His present impairment could therefore be regarded as permanent.
Mr Wishart says that it is difficult to hold ropes when he sails. He was a keen sailor prior to the accident. He believes that he is neither as competent nor as safe on the water now as he was prior to the accident. A cold environment and cold water make his left hand less comfortable and less efficient when on the water. He believes his golfing has suffered and believes that he is now significantly worse. He still feels some embarrassment towards his deformity.
Mr Wishart is a skilled worker and has suffered problems with his job. While he says that he can manage most things at work, he does avoid any tools that vibrate and often or usually asks for help in the manipulation of heavier items. He says that his employer is quite understanding. There is, however, no doubt that Mr Wishart is significantly less efficient now in his employment than he was prior to the accident.
11 The material in those reports in my opinion was consistent with the plaintiff's evidence in relation to the impact of the injuries on the function of the affected fingers of his left hand.
12 In his affidavit and at the hearing the plaintiff described the impact of the incident on him. Before the incident he was married with a baby and was a keen sailor whose father owned a Laser Yacht which they sailed in summer. He has not sailed since the accident. He was also a keen swimmer and a competitive and social golfer, although he had not played golf for some years prior to the incident. He would have wanted to be able to return to those activities in due course but feels he cannot do so because of the difficulty he has with gripping a golf club. He has tried hitting some golf balls once since the accident but found he could not grip the golf club properly and that his amputated finger became very red. He said he used to swim recreationally for fitness, and used to hit the ropes when swimming. Since his injury, he has not returned to regular swimming because of a fear that his affected fingers might strike the lane ropes or the end of the pool which would cause him pain.
13 He suffers constant pain in the middle finger, intermittent pain in the amputated finger around the stump, which is all worse in the cold weather. At night he suffers pain in the finger, in the middle finger, particularly when he is not distracted, and he has had to move the television into the bedroom to distract him from that pain so that he can get back to sleep. He has had to learn to modify the way in which he grips objects and tools, and he has had to learn to protect his two injured fingers from striking objects, which would cause him severe pain. Even with his modified grip, he still regularly knocks his fingers, which he finds very painful. This has made his work more difficult and made playing with his daughter difficult. The pain in the fingers is exacerbated by the cold, and he will often keep his left hand in his pocket or keep it covered outdoors. At home, he will often wear a fingerless glove to keep the left hand warm while allowing him to undertake activities. He also has numbness in the area of the graft and a loss of flexion and extension in the two fingers which he demonstrated during the course of the hearing.
14 In relation to the disfigurement he uses various strategies to avoid embarrassment which he feels when people comment on his left hand, which happens regularly. He puts his hand in his pocket when he can, to avoid attracting attention. He sometimes forms a fist so that people cannot see the stump of the amputated finger, or he covers one hand with another hand. He said that he had thought about wearing a glove in public but felt that this would just simply attract further attention and cause him further embarrassment.
15 He agreed that he has been doing a considerable amount of landscaping around his home for the past two years using various tools, and sometimes wearing a glove on the affected hand using a jack hammer to break up sections of rock and sandstone. He said that those activities took him a lot longer than they used to and he had to take frequent breaks. There were some activities that he could no longer do, for example, building some decking, and other people now have to do this for him, which causes him some distress because it makes him aware of some of his limitations.
16 In relation to the submission that the plaintiff had not met the required threshold for pain and suffering, counsel for the defendant referred me to a number of decisions of this Court where leave was not granted even though there had been loss of function of a finger (including, for example, the decision of His Honour Judge Wodak on 11 May 2005 in the case of McCann v. Bonlac Foods Limited [2005] VCC 497). Counsel for the defendant conceded that there are decisions of this Court which favour the plaintiff, and submitted that the decision involved a value judgment. Counsel emphasised the absence of evidence of ongoing medication or treatment being taken in relation to the plaintiff’s pain. He submitted that what the plaintiff described as a sensation of pressure should not be regarded as pain, but should be treated as carrying with it a less serious consequence in terms of pain and suffering than pain. In relation to disfigurement, while conceding that the disfigurement was obvious and permanent, he submitted that the plaintiff was unable to satisfy the “at least very considerable” test in relation to pain and suffering.
17 I consider for a number of reasons that leave under both limbs ought to be granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering in relation to the injury suffered during the course of employment in December 2005.
18 Firstly, I accept the plaintiff as a very genuine and straightforward witness. I found him to be a particularly stoic individual. I am required to have regard to what he has lost as well as to what he is still able to do when considering the pain and suffering consequences of his permanent impairment and disfigurement of the fingers of the left hand. I accept that he suffers pain in the affected fingers. I note that the various reporting doctors referred not only to sensory disturbance he reported but also to the pain he suffers when he knocks his fingers. I note that he said he has constant pain in the affected fingers which he described as a sensation akin to squeezing one’s fingers hard for 20 minutes and then seeing how they feel. I note that his sleep is disturbed regularly at night, that he has suffered a loss of grip strength, that he has had to change the grip he uses for holding and picking up objects and tools; that he generally tries to do these activities without contact with the affected fingers, because any impact can cause him a great deal of pain.
19 Secondly, I noted that at work, he has had to modify how he grips objects and tools in order to manage his duties and this slows him down. He has had to delegate some tasks to others. Thirdly, there is the clear loss of enjoyment in relation to the activities which he feels he can no longer do, playing golf, swimming and yachting.
20 In the light of his evidence which I accept, I consider that the pain and suffering consequences of the permanent impairment in the left hand are, when compared with other cases in the range of possible impairments or losses of body function, at least very considerable.
21 I have reached the same conclusion in relation to the permanent disfigurement because I accept the plaintiff's evidence that he is greatly embarrassed by the amputation of his ring finger on the left hand and by the obvious deformity to the hand created by this missing finger and by the other affected finger. He uses his hands extensively, as most people do, in the normal course of their daily lives. He is regularly embarrassed by the obvious deformity of the two fingers of his left hand. He is embarrassed in anticipation of the comments that will be made and when dealing with those comments. I accept that a great deal of loss of enjoyment flows from this disfigurement.
22 I note that there are other cases of judges of this Court where disfigurements constituted by severe scarring have been held not to meet the relevant threshold in terms of pain and suffering. However, this case concerns an amputation of one finger and a disfigurement of another finger. Having regard to the plaintiff's evidence which I accept concerning the impact of the disfigurement on his activities and on his enjoyment of life, I consider that the pain and suffering consequences of the permanent disfigurement, are at least very considerable when compared with other cases in the range of possible permanent disfigurements.
23 For those reasons I propose to grant leave to the plaintiff in the terms sought.
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