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County Court of Victoria |
Last Updated: 12 April 2016
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Revised
Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the non-dominant left hand
– plaintiff in receipt of WorkCover payments while
working – serious
attack on the credit of the plaintiff – whether the plaintiff suffered the
consequences contended for
or to the degree contended for – film –
whether the acceptable consequences were “serious”
Legislation
Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: The plaintiff’s Originating Motion be dismissed with costs.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Maurice Blackburn Pty Ltd
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For the Defendant
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Russell Kennedy
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Introduction
1 The plaintiff is a thirty-two-year-old man who was born in
January 1983. He and his partner have three children under ten years
of age.
The plaintiff suffered an injury to his left hand on 8 January 2009 when he
walked into a glass panel of a showroom, resulting
in significant lacerations to
the dorsum of his left hand.
2 The plaintiff's application for serious injury
is based on paragraph (a) of the definition of “serious injury”;
that
is, he submitted that he has suffered a serious permanent impairment or
loss of the function of his left hand.
3 Ms J Forbes QC appeared with Mr M
Belmar of counsel for the plaintiff. Mr P Jens QC appeared with Ms Nadj of
counsel for the defendant.
The Plaintiff's medical treatment
4 The plaintiff suffered significant lacerations to the dorsum
of his left hand which bled profusely. The plaintiff was taken to
the Box Hill
Hospital by ambulance. He was treated by bandaging of the wound. He was
discharged and told to return the next day
for surgical treatment.
5 The
plaintiff came under the care of Mr Mann, plastic surgeon, the next day. No
formal medical report was obtained from Mr Mann,
and the reasons for that were
left unexplained. The only material which demonstrates the particular nature of
the injury suffered
by the plaintiff is an operation note which I assume was
composed by Mr Mann.
6 It is unfortunate that no report was obtained from Mr
Mann, because none of the medical practitioners who have provided reports
in
this application bothered to identify precisely the tendons, nerves and arteries
which were affected by the lacerations. However,
it would appear from the
operation note that 100 per cent of the extensor carpi radialis longus tendon
was lacerated; 100 per cent
of the extensor carpi radialis brevis was lacerated;
100 per cent of the extensor pollicis longus tendon was lacerated; 100 per cent
of the radial nerve into branches was lacerated; 100 per cent of the radial
artery was lacerated and 90 per cent of the princeps
pollicis artery was
lacerated.
7 The plaintiff saw Mr Mann on a number of occasions as an
outpatient. It would appear that he was last reviewed by Mr Mann some
time in
2009.
8 The plaintiff was referred to Ms Graham, hand and occupational
therapist. By the time she referred the plaintiff to Ms Frisken,
hand and
occupational therapist, she had seen him on three occasions. Ms Graham
organised for a thermoplastic splint to be manufactured
for the plaintiff, and
she reviewed his oedema management and active motion of the unaffected digits of
his left hand. She noted
that the oedema had decreased, and his range of
movement had improved.
9 A number of letters of Ms Graham were tendered into
evidence. The letters spanned the period between 6 February 2009 and 30 October
2009. In the last of those, dated 30 October 2009, she noted that the extension
and flexion of the plaintiff’s left wrist
was 52 degrees; that he had 20
degrees of radial deviation and 10 degrees of ulnar deviation. I am unable to
decipher the balance
of the examination results. His grip strength was measured
as 44 kilograms on the right side and 29.5 kilograms on the left side.
10 The
letter was directed to Mr Mann, who was to see the plaintiff during the
following week as an outpatient. In order to assist
him, Ms Graham wrote that
the plaintiff was working some hours driving a bus and apparently managing well
on reduced hours. The
plaintiff told her that driving for more than one hour
consecutively produced pain and swelling in his left wrist which settled after
rest. He also told her that he was continuing to assist with domestic chores,
but was having difficulty with sweeping, mopping or
carrying anything with his
left hand of significant weight, for example a washing basket or shopping
bags.
11 Ms Graham was to review the plaintiff the following week, as was Mr
Mann, but there are no reports of either of them regarding
their prognoses, and
certainly nothing relevant to the plaintiff's capacity to undertake work and
social, domestic and recreational
pursuits. I will return to this subject later
in these reasons.
12 Before turning to the substance of the plaintiff's evidence,
I should next state the issues which were raised in this application.
There is
no issue that the plaintiff suffered a compensable injury which has permanently
impaired the function of his left hand.
What is in issue is the plaintiff's
credit, and whether he has suffered any consequences of the impairment of
function of his left
hand, and if he has, whether he has suffered those
consequences to the degree he asserts.
13 The plaintiff swore two affidavits
on 2 April 2014 and 16 September 2015 which were tendered into evidence. In
summary, the plaintiff
described the consequences as follows:
▪ He
experiences pain and discomfort in his left wrist and hand which worsen when he
uses his left hand.
▪ He experiences a sensation of pins and needles
over the dorsum of his left hand.
▪ He has difficulty gripping with his
left hand. He gave the example of having difficulty holding a mug of
coffee.
▪ The pain he experiences is worse in cold
weather.
▪ He can be woken from his sleep by the pain.
▪ The
only medication he uses is Panadol which he takes from time to
time.
▪ His ability to play games, for example backyard cricket and
football with his children, who are now two, six and eight, is
restricted. He
is concerned about the consequence of knocking his left hand when using a
cricket bat and marking a football.
▪ He also played games of backyard
cricket and football with family and friends, which have ceased.
▪ His
relationship with his partner deteriorated after he suffered the injury because
of his level of frustration at being both
injured and
incapacitated.
▪ He is able to engage in levels of domestic activity.
There are some activities that he will not engage in because of the
pain that
will result if he does. For example his partner mows the lawns and he no longer
undertakes gardening tasks such as using
a Whipper Snipper.
▪ He sold
his home gym equipment and weights, which he was accustomed to
using.
▪ He has stopped going to a gym, where he engaged in weight work
and boxing. The impression I obtained was that the boxing
involved using a
punching bag.
▪ He is employed as a truck driver. He mainly uses his
right hand when driving, although it was his evidence that he almost
exclusively
drives an automatic truck which reduces or eliminates the necessity for gear
changes with his left hand. On occasions
when he has been asked to drive a
manual truck, he has refused to do so. The occasions when he is asked to do so
may occur once
a week.
▪ He experiences some difficulty tightening the
restraining curtains on the trucks which he drives, as doing so requires he
employ both his left and right hand.
▪ He is no longer able to pursue
his ambition to be a self-employed tow-truck driver. He obtained a tow-truck
using finance.
As a result of the incident and his inability to work, he was
unable to drive the tow-truck. He surrendered it to the finance company,
and
later paid some difference between the sale price and what he owed the finance
company. His ambition was influenced by the fact
that his father, brother and
an uncle are all self-employed tow-truck drivers.
▪ He is limited in
the extent to which he can ride a motorcycle. He can ride it for up to 60
minutes before needing to stop
because of the onset of aching and pain in his
left wrist and hand.
▪ He sold his house which he had purchased from
his brother. He could not maintain the repayments of about $350 per week.
Instead, he rented a house for $250 per week. He purchased the house in which
he now lives with his family about two years ago.
14 The plaintiff referred
to the scarring on the dorsum of his left hand. I inspected the scarring with
Counsel. It runs along the
same line as the diagram made by Mr Mann in his
operation note.
15 The plaintiff was cross-examined. The substance of the
cross-examination was that he has returned to a significant level of
functioning.
16 A significant portion of the cross-examination was directed
to a WorkCover claim which the plaintiff made fraudulently at a time
when he was
working.
17 I will turn to the credit issues first. The plaintiff submitted
an application for compensation. His claim was accepted. He
then received
weekly compensation payments. He returned to work about four months after he
suffered injury for a bus company. He
worked about 30 hours per week doing what
he described as a school route. He did not inform the relevant WorkCover agent
that he
was receiving a weekly income at the same time as WorkCover
payments.
18 Counsel informed me that he was charged with a number of
offences relevant to the period from July 2009 to July 2010. I was not
informed
what the charges were, but they were in the nature of fraudulently obtaining
monies to which he was not entitled. He pleaded
guilty. He was the subject of
an order made by a court. Part of the punishment imposed on him involves 100
hours of community work.
He was ordered to repay the monies which he
fraudulently obtained.
19 The plaintiff was actually working as a bus driver
in the morning and afternoon, five days a week, for about 30 hours per
week.
20 The plaintiff was cross-examined extensively regarding histories
taken by a number of medical practitioners who examined him during
that relevant
period.
21 The first was Dr Baynes, occupational physician, who examined the
plaintiff on 14 May 2009. According to the plaintiff, he had
returned to work
by then. He told Dr Baynes that he was working part-time as a coach driver two
to three nights a week. He also
told him that he thought he would be able to
return to work full time as a coach driver, although he acknowledged the hours
he admitted
to working represented a fraction of the hours he was actually
working.
22 When the plaintiff was next examined by Dr Baynes on 15 April
2010, he told him that he had worked driving an automatic bus for
30 hours one
week, but by the end of the week he experienced increasing pain and swelling in
his thumb, and he gave that work away.
He also told Dr Baynes that he spent his
day at home with his children and was not doing very much at all. He expressed
his frustration
to Dr Baynes, adding that he wanted to return to work.
23 The
plaintiff was next examined by Dr Elder, occupational and environmental
physician, on 23 July 2010. He told Dr Elder that
he was in receipt of
WorkCover payments and had not been able to return to work. He added that he
had secured a job as a bus driver
which he was due to start the following week.
24 The plaintiff was next examined by Dr Gill, psychiatrist, on 15 July
2010. He told Dr Gill that he had undertaken a trial of work
as a bus driver,
but because of the pain he experienced, longer term work was not made available
to him, and that he was spending
most of his time at home.
25 The plaintiff's
attempt to explain what he did is contained in his first affidavit. He admitted
to having received WorkCover payments
to which he had no entitlement. He
admitted that he was charged with offences, that he pleaded guilty and was the
subject of an
order by a court to repay the monies he received fraudulently.
However, he explained that he was working as a part-time truck driver,
not
working regular hours, and that the problem arose because he had not recorded
all the hours he worked, and had not reported the
same to the relevant insurance
agent. I find that explanation curious, because if he was working as a bus
driver 30 hours a week,
then he would have received a payslip which he could
have submitted with ease.
26 The plaintiff must have submitted documentary
evidence of his level of incapacity for work. It is no secret that the system
operates
on the basis of a claim being made, which is necessarily supported by
medical certificates from a treating medical practitioner,
and usually, the
plaintiff's general practitioner. I assume that between July 2009 and July
2010, that is how the plaintiff's claim
was managed, and how he came to
represent to the insurance agent that he was incapacitated for work and entitled
to the WorkCover
payments he received.
27 The plaintiff's general
practitioner was Dr Jacobs. He provided one report dated 23 April 2010. The
plaintiff first saw him on
4 March 2009. Dr Jacobs was told by the plaintiff
that he had tried to drive an automatic truck, but was unable to sustain that
work because of pain and weakness in his left wrist. It would appear that he
was providing the plaintiff with WorkCover certificates.
He was of the opinion
that the plaintiff was fit for desk-type duties, but inherent in the flavour of
his report is an opinion that
the plaintiff was not fit to work as a driver. He
went to the extent of providing an opinion that it was unlikely that the
plaintiff
would ever return to the physical duties he was previously performing,
which were the duties of a tow-truck driver. He considered
he was limited to
desk-type duties and courier-type activities. It is clear that he was unaware
that the plaintiff was working as
a bus driver at the time when he composed that
report.
28 What is very clear from the foregoing analysis of the histories
given to those medical practitioners is that the plaintiff knew
that he needed
to maintain the facade of incapacity in order to obtain WorkCover payments. He
very seriously misled all of these
medical practitioners, and it would appear
that it was only when he was caught that his payments ceased.
29 Defendant's
Counsel essentially submitted that I should exercise real caution in accepting
any of the plaintiff's evidence, given
the elaborate lengths he went to deceive
medical practitioners who examined him relevant to his claim, and also the
relevant insurance
agent.
30 The fact that the plaintiff behaved in this way
has resulted in a significant dent in his creditworthiness. In the
circumstances,
I will take a cautious approach in determining what I accept of
the plaintiff's evidence relevant to the consequences of the impairment
of the
function of his left hand.
31 Dr Baynes was of the opinion, at the time he last examined
the plaintiff on 15 April 2010, that the plaintiff was incapacitated
for his
pre-injury duties and hours. That must mean as a tow-truck driver. He
considered that the plaintiff could not engage in
work involving heavy lifting,
repetitive or forceful gripping. However, he considered that the plaintiff
could return to his pre-injury
hours, and I infer that to mean work which did
not require the plaintiff to engage in those physical stresses and
strains.
32 Dr Baynes arrived at that opinion without the benefit of knowing
that the plaintiff had returned to work four months after the
incident. I will
not speculate as to what Dr Baynes might have thought of that, but the absence
of a critically important piece
of information renders his opinion of reduced
value.
33 The opinion of Dr Elder is similar, however his opinion seems to
have been directed rather more to an impairment assessment than
the issues
raised in a serious injury application. Similarly, the opinion of Dr Jacobs is
flawed for the same reasons, as is Dr
Baynes' opinion.
34 What that leaves,
in the absence of any report from Mr Mann and any updated reports from Ms
Graham, are the opinions of Mr O'Brien,
orthopaedic surgeon, and Mr Stapleton,
plastic and reconstructive surgeon.
35 Before turning to the opinions of Mr
O'Brien and Mr Stapleton, I should now refer to the film which was shown. The
films were
taken on 7 May 2009 and 24 May 2009. I will only refer to the parts
of the film which I consider to be relevant.
36 On 7 May 2009, the plaintiff
was shown:
• at 11.30am, opening a car door using his left hand.
Carrying his son by holding him in front of his body with both hands
clutching
his son around the upper body with the fingers of each hand outstretched. He
then placed his son into a car. His son
looked to be three or four years of
age.
• At 11.36am, driving a car with his hands on the steering
wheel.
37 On 24 May 2009, the plaintiff was shown:
• At 11.09am,
moving what appeared to me to be an A-frame child's swing. The A-frame had a
horizontal bar between the angular
pieces of the frame. The plaintiff clutched
that horizontal bar with both hands under the bar and then lifted the swing. He
did
the same again at 11.11am.
• At 11.46am, he carried a box from his
car using both hands, and in the next few minutes carried light objects in both
hands.
38 Mr O'Brien examined the plaintiff on 20 July 2015. The plaintiff
told him that he is working as a semitrailer driver. He told
him that the
symptoms of pain and disablement in his left wrist and hand are aggravated by
that work. Mr O'Brien considered that
the plaintiff was not fit to undertake
any manual-type employment. He said very little about whether the plaintiff is
restricted
in any serious way in his work as a semitrailer driver. He
considered that the plaintiff was moderately symptomatic, but then considered
that the plaintiff would have “some” permanent restriction on his
general, social, domestic and recreational activities.
39 Mr Stapleton
examined the plaintiff on 20 July 2015. The history he recorded is remarkably
brief, but he did obtain a history
from the plaintiff that he was not able to
work as a tow-truck in driver, but was able to work as a truck driver driving a
semitrailer
with automatic transmission. His opinion appears to me to have some
internal inconsistencies. Whilst he considered that the plaintiff's
presentation was inconsistent with what he saw on the films he was provided, he
did not doubt that the plaintiff's left wrist had
not returned to normal and
that was a significant contributing factor to his current presentation.
However, he then expressed an
opinion that it was conjectural as to whether the
plaintiff had returned to normal function or not. Therefore, I do not think Mr
Stapleton’s opinion is really of much value.
40 Mr Stapleton was
influenced by the films. Mr O'Brien was not provided with the films, but a copy
of a surveillance report which
was not tendered into evidence. It is not clear
to me whether the surveillance report was prepared by the same investigator who
took the films. The surveillance report did not impress Mr O'Brien as being of
any importance.
41 I accept that the plaintiff suffered a significant
laceration to the dorsum of his left hand which resulted in the injuries
described
in the medical reports which I have reviewed.
42 I accept that the
injuries resulted in a permanent impairment of the function of the plaintiff's
left hand.
43 I am not satisfied that the pain and suffering consequences of
that impairment of function are serious, and I am not satisfied
that they even
reach the level of being significant or marked. I have reached that conclusion
by having regard to other impairments
of a like kind.
44 Counsel for the
defendant submitted that the absence of a report from Mr Mann should see me draw
the adverse inference referred
to in Jones v
Dunkel.[1]
Additionally, in an exchange between counsel for the plaintiff and myself, I
referred to my concern that the plaintiff's creditworthiness
had been seriously
affected by his deceit, and that I was concerned to look for other evidence
which either confirmed what the plaintiff
said or was, of itself, persuasive of
aspects of the evidence of the plaintiff. More pointedly, I put to counsel that
there were
no affidavits from members of the plaintiff's family, for example his
partner, his brother, his father and his uncle. These people
were mentioned
during the plaintiff's evidence and were in a position to have attested to their
observations of the plaintiff's inability
to undertake social, domestic and
recreational activities and vocational tasks, as would someone from the
plaintiff's present employer,
who could attest to any difficulties which the
plaintiff presently experiences in that work and that he has in fact refused to
undertake
work when asked to drive a manual truck.
45 Overall, it was my
impression that the plaintiff's case was very weak on the facts. It is entirely
based upon the plaintiff's
affidavits; his oral evidence; very stale medical
material of Mr Mann, Ms Graham and Dr Jacobs, and the reports of Mr
O'Brien.
46 After reading all of the material tendered by the plaintiff and
the defendant, the transcript of the plaintiff's evidence, and
the addresses of
counsel, I prefer to approach the matter by ignoring the issue of the
plaintiff's creditworthiness, and the Jones
v Dunkel issue, and to assess
whether the plaintiff's consequences are serious on the basis of the evidence
adduced before me.
47 A thesis which I find of great assistance when
determining an application based upon pain and suffering is that espoused by
Ashley
JA in Dwyer v Calco Timbers Pty Ltd (No
2).[2]
His Honour observed that while impairment concerns what has been lost, the
significance of what has been lost may be informed by
what has been
retained.
48 I accept that the plaintiff probably is incapacitated for work
which involves the stresses and strains on his left wrist and hand
referred to
by Dr Baynes. However, he is obviously fit to work as a bus driver full time
and in his present employment as a full-time
truck driver.
49 The plaintiff
works between 40 to 65 hours per week. He drives an automatic semitrailer as
far as the Victorian border and return.
In the days preceding the hearing of
this application, he had driven to Bendigo and back. The actual manual
operations involved
in his present work appear to me to be few, and when
required, are within the range of the plaintiff's capacity to employ his left
hand. He is earning about $100,000 gross per annum in that employment, which is
more income than he has ever earned in any previous
employment.
50 The
plaintiff purchased a TGB 250cc motorcycle in October 2010. He subsequently
purchased a Hunter 350cc motorcycle in 2012 which
was written off in an accident
about eight months ago. He purchased a Harley Davison cruiser 1690cc six months
ago, which he rides
reasonably frequently and without much interference. When
he goes on rides, they can occupy up to half a day or more. He stops
about
every 60 minutes or so for a rest, but I am not satisfied that the need for a
rest is entirely due to his left hand. It is
employed in operating a clutch.
The impression I obtained from the plaintiff's evidence was that the operation
of the clutch is
simple and not particularly arduous. Otherwise, the only other
stress and strain on his left hand is holding onto the handlebars
of the
motorcycle. He usually rides with a group of other motorcycle enthusiasts.
They stop periodically during a ride for a coffee
break or for lunch, and for
other reasons. It was my impression that it was the group which stopped to have
a rest, not just the
plaintiff.
51 The plaintiff is not precluded from all
domestic and recreational activities. I accept that he does not mow the lawns
and use
a Whipper Snipper, but he did concede that when it comes to other
domestic tasks such as vacuuming, hanging washing out and similar
routine tasks,
he can do them to some degree, and it was my impression that he could do them to
more than just a modest degree.
52 I am not satisfied that the plaintiff's
recreational activities of playing backyard cricket and football were as
vigorous and as
extensive as he portrayed. My initial impression was that he
was not someone with a significant interest in those sporting pursuits.
It
transpired that he has not been a member of any formal clubs or teams. His
engagement in those sporting activities has been
limited to his backyard and
with members of his family and his children. It seems to me to be a far cry
from the initial impression
he created. Engaging in those sorts of activities
with children under ten years of age is hardly likely to be particularly
vigorous
and is most unlikely to be beyond the plaintiff. He might be wise to
avoid marking a football with outstretched hands, but it seems
to me to be an
exaggeration for him to suggest that general ball handling is outside his
capacity to do so safely.
53 Counsel emphasised that the plaintiff has lost
an opportunity to be a self-employed tow-truck driver. Whilst that might be so,
it must be remembered that the plaintiff has followed the occupation of driver
for most of his adult life. He still follows that
occupation, and does so very
successfully. He has but one form of driving excluded, which I think is
insufficient to constitute
a considerable consequence on its own.
54 The
plaintiff has had no medical treatment since he left the care of Mr Mann and Ms
Graham. He has not taken any prescription
medication for pain control since
some time in 2009. His resort to medication is the use of Panadol which, on any
view, is a pain
reliever which is very low down on the scale of strength in
terms of the pain relief that it can give. His use of Panadol suggests
to me
that his pain levels are relatively easily controlled.
55 My overall
impression of the plaintiff's evidence is that he has some residual difficulties
with his left wrist and hand which
preclude him from manual work, but otherwise
he is entirely capable of being a truck driver, and otherwise engaging in levels
of
social, domestic and recreational activities. In that respect, I note that
Mr O'Brien did not say much about the extent of the restriction,
except to say
that the plaintiff will have “some” restriction.
56 I was less
than impressed with many of the answers the plaintiff gave during
cross-examination. I can well understand that being
cross-examined is hardly an
experience which is common, and witnesses differ in their management of
cross-examination. However,
I thought the plaintiff tended to give
non-responsive answers and had to be pressed on occasions to give a direct
answer. I do not
think he was being disingenuous, but I thought that when he
could avoid being responsive or give an answer that was self-serving
he tended
to do that.
57 In the end, I am not satisfied that what the plaintiff has
lost meets the statutory test. I think what he has retained is very
significant, and in reality what he has lost is a level of the capacity to
engage in pre-injury activities, but certainly not to
the extent of being very
considerable, and probably rather more modest or moderate at best.
58 For all the reasons set out above, I order that the
plaintiff's Originating Motion be dismissed with costs.
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[1] [1959] HCA 8; (1959) 101 CLR 298
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