Court of Appeal (Vic)|2013-03-07|Before: Maxwell P, Tate JA

Aburrow v Network Personnel & Worksafe Victoria [2013] VSCA 46 (7 March 2013)

Aburrow v Network Personnel Pty Ltd & WorkSafe Victoria [2011] VCC 299 (Judge Kennedy)

ACCIDENT COMPENSATION - Workers' compensation - Refusal of leave to bring common law proceedings - Whether 'serious injury' - 'Pain and suffering consequence' of injury - Whether 'more than significant or marked and ... at least very considerable' - Intensity and frequency of pain - Disabling effect of pain - Whether decision of primary judge 'plainly wrong or wholly erroneous' - Appeal dismissed - Haden Engineering Pty Ltd v McKinnon ; ; Sutton v Laminex Group Pty Ltd (2012) 31 VR 100 applied - , (38)(c).

1 The appellant, Mr Aburrow, brought a 'serious injury' application in the County Court. The application was founded on what the Accident Compensation Act 1985 (Vic) (the 'Act') calls the 'pain and suffering consequence' of the injury.[1] Accordingly, the judge had to decide whether the impact on Mr Aburrow of the pain and suffering attributable to the injury was:

when judged by comparison with other cases in the range of possible impairments or loss of a body function, ... fairly described as being more than significant or marked, and as being at least very considerable.[2]

2 The judge was not persuaded that the 'pain and suffering consequence' of the injury satisfied the statutory criteria.[3] Mr Aburrow now appeals to this Court under s 74 of the County Court Act 1958 (Vic). The first question which arises concerns the nature of the appeal.

3 It was common ground that, following the repeal of s 134AD of the Act (which required this Court to 'decide for itself' whether the injury in question was a 'serious injury'),[4] appeals in serious injury cases are once again governed by the decision of the fivemember bench of this Court in Mobilio v Balliotis.[5] In the absence of specific error, therefore, the determination of the judge - that 'serious injury' had not been shown - will stand unless this Court is satisfied that the determination was plainly wrong or wholly erroneous.[6]

4 For reasons which follow, we do not consider that any such error has been demonstrated. We would therefore dismiss the appeal.

5 Mr Aburrow was born in August 1965. After leaving school, he obtained employment as a chicken boner and, subsequently, as a heel trimmer and forklift driver. In October 1988, during the course of the latter employment, he suffered a crush injury to the tip of his right index finger which required reconstructive surgery (the '1988 injury'). He returned to work fulltime but subsequently resigned. His common law claim with respect to that injury resulted in an award of $25,000 in damages.

6 Between 1990 and 2005, Mr Aburrow engaged in a variety of unskilled work. In February 2005, he commenced employment with the first respondent, a labour hire company, which hired him out to Tasman Meats as a bandsaw operator.

7 Mr Aburrow injured his right hand in August 2006. He was 'pushing a cut of meat through the bandsaw when the saw connected with the inner part of his right hand and sliced it open'.[7] He was admitted to hospital, where he underwent surgery. A full thickness skin graft was taken to cover a defect at the base of his right finger.

8 He was off work until 22 September 2006. He performed unrestricted work from 3 October 2006 and ultimately resigned from that employment in January 2007. Over the next three months he obtained employment as a knife hand, and since then has worked as a forklift driver.

Evaluating the 'pain and suffering consequence'

9 As is typically the case in serious injury proceedings, the judge was required to evaluate a large body of evidence, almost all of it in documentary form. In this case, the evidence comprised: multiple affidavits sworn by Mr Aburrow himself; his oral evidence under crossexamination; affidavits from his partner, his sisterinlaw, a work colleague and a friend; and a large number of medical reports from practitioners engaged by the respective solicitors.

10 As Maxwell P suggested in Haden Engineering Pty Ltd v McKinnon,[8] it is of assistance in reviewing a body of evidence like this - for the purpose of evaluating the 'pain and suffering consequence' of an injury - to distinguish between:

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.[9]

These are not, of course, rigidly separated categories. For example, evidence about the disabling effect of the pain may enable inferences to be drawn about the intensity and frequency of the pain, and vice versa.[10] But the distinction remains important for the purposes of the pain and suffering assessment, as this appeal shows.

11 We deal first with Mr Aburrow's experience of pain as such. The approach suggested in Haden, and subsequently endorsed in Sutton v Laminex Group Pty Ltd,[11] was as follows:

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 need also to assess the frequency and duration of the pain episodes.

The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a) what the plaintiff says about the pain (both in court and to doctors);

(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);

(c) what the doctors say about the extent and intensity of the plaintiff's pain; and

(d) what the objective evidence shows about the disabling effect of the pain.

As to (a), the weight to be attached to the plaintiff's account of the pain experience will, of course, depend upon an assessment of the plaintiff's credibility. The court will make its own assessment of the plaintiff's credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff's accounts of pain.

...

As to (d), the cases recognise that some plaintiffs may be more 'stoical' than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the 'stoical' plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the 'objective' evidence of the disabling effect may be of less significance than usual.[12]

12 Mr Aburrow swore four successive affidavits in support of his application.[13] Much of the content of the affidavits concerned the disabling effect of the pain on his physical capabilities, which we deal with below. Rather little was said, however, about his actual experience of pain. The only direct statements were the following:

I find that the pain ... in my right hand and fingers is worsened with any change in the weather, in particular in cold conditions.
... I continue to suffer from pain and restriction of movement in my right hand and right index finger.

Plainly enough, a statement that a person 'suffers pain' says nothing about the intensity of the pain. Nor, by itself, does a statement that the pain 'is worse' under particular conditions.

13 Nor did Mr Aburrow's oral evidence provide any elaboration of these statements. As her Honour noted in her reasons, Mr Aburrow agreed under crossexamination that he would 'occasionally take painkillers' in order to relieve the pain in his hand. He confirmed that the problem with his hand was 'a problem in cold weather'.

14 As counsel for the employer pointed out, both at trial and on appeal, Mr Aburrow said nothing directly about either the intensity or frequency of the pain. So far as his evidence went, it implied that the pain was variable, requiring only occasional pain relief, and that it was of lowtomoderate intensity, as nonprescription painkillers were sufficient for the purpose. (How pain is managed is, of course, a relevant indicator.)

15 The evidence in this case may be contrasted with that given by the plaintiff in Haden, to the effect that:

he experienced constant pain;
the pain was with him when he woke up in the morning, and got progressively worse during the day;
his pain interfered with his work and obliged him to rest, for up to five to 10 minutes, four to five times a day; and
the pain interfered with his sleep, such that he would often 'wake up to three to five times during the night because of pain'.[14]

16 Nor did the medical evidence take the matter much further. Reliance was placed in the appeal submission on the following statements in the medical reports:

(as at September 2006) the right hand grip remained 'weak, stiff and painful. He was unable to make a firm fist';[15]
(as at July 2009) '[t]he index finger is extremely painful in cold weather ... He is extremely cold intolerant, the finger becoming very, very painful in the cold, tends to go blue and throbs. He has to continuously wear a glove. He has constant pins and needles in the finger';[16]
(as at August 2009) '[h]is right index finger is painful, particularly on a cold morning';[17] and
(as at January 2010) there were persisting problems with stiffness, altered sensation and 'considerable cold intolerance'.[18]

17 Complaint is made about the following finding by the judge:

In the present case there is little, if any, precise evidence as to the constancy and level of pain. Although there are references to the plaintiff's condition worsening in cold weather, the plaintiff otherwise says little about it, and nor do the doctors. Significantly, the plaintiff also manages any pain by only 'occasionally' taking over the counter painkillers.[19]

18 It will be apparent from the extracts of the evidence set out above, and their lack of precision, that her Honour's finding in this respect was open on the evidence.

19 As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff's physical functioning, and interferes with the plaintiff's enjoyment of life. As this Court (Ashley JA) said in Dwyer v Calco Pty Ltd (No 2):[20]

[I]mpairment is concerned with what has been lost. But the significance of what has been lost ... may be informed, to an extent, by what is retained.[21]

20 As suggested in Haden (and endorsed in Sutton),[22] the disabling effect of the pain is to be assessed by considering the impact of the pain on the worker's capacity for work and the degree to which it interferes with the ordinary activities of life, as follows:

As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which 'an area of work which [the plaintiff] enjoyed ha[s] been closed off to [him or her]'.

Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff's:

sleep;
mobility;
cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
capacity for self-care and self-management;
performance of household and family duties;
recreational activities;
social activities;
sexual life; and
enjoyment of life.

Whether and to what extent the matters listed are relevant to the court's task in a particular case will, naturally, depend on the circumstances of the case.[23]

21 The judge summarised Mr Aburrow's evidence about the disabling effect of the pain. In relation to employment, as her Honour noted, Mr Aburrow said:

as a result of the injury, he had ceased his training as a boner and had lost the opportunity to pursue that occupation; his current work, driving a forklift, was easy for him. There was not a great deal of lifting at work.

As to the ordinary activities of life, Mr Aburrow said:

he suffers severe restriction in the movement of the fingers of his right hand, and the right hand itself, in that he has 'great difficulty' in straightening his right index finger or making a fist with his right hand;
he has 'great difficulties at home', attempting to avoid any activity that requires 'any strength or dexterity in my right hand, such as opening jars or bottles';
he no longer derives as much enjoyment as previously from playing with his children, or playing sport in the backyard:

... I no longer enjoy it as much because I'm always aware of the injury to my right hand and I am conscious of protecting it from any further damage.

he is able to drive a car, but experiences some difficulty doing so. He needs to drive a car with power steering, as his grip on the steering wheel is not as strong as it used to be;
before the injury he was 'an avid player of American football' but his enjoyment of this activity is now greatly limited as:

I am too conscious of the injury to my right hand to enjoy playing the game.

he has difficulties with anything that requires even moderate grip strength, such as mowing the lawn;
as he is righthand dominant, the injury impacts on every activity he undertakes;
his ability to enjoy cooking has been affected and he no longer hosts dinners at his house;
the injury has impacted on his enjoyment of drawing, which he now tends to avoid.

22 Under crossexamination, Mr Aburrow agreed that he was now ambidextrous and used his left hand more than his right hand. He continued to write with his right hand but adjusted by using different fingers. As the judge noted, Mr Aburrow 'also fairly conceded that there was nothing he can't do if he put his mind to it'.[24]

head coach of his sons' under 14 football team and was visibly passionate about this role. This involves turning up to training on Tuesdays and Thursdays as well as games on Sundays. He also prepared game plans on other nights in the week.

He also assisted a coach with his children's baseball team (run on an alternate season basis with football) which involved Monday and Wednesday nights and games on Friday night.[25]

24 The appeal submission for Mr Aburrow was that 'the crux' of the medical evidence lay in the reports of Mr James Thomas (hand surgeon), Mr Murray Stapleton (hand surgeon), and Mr Chris Haw (hand and orthopaedic surgeon). The evidence of each of these experts was summarised in her Honour's reasons.

25 Mr Thomas noted that Mr Aburrow had been left with

residual problems of stiffness in this right index finger, altered sensation in the radial digital nerve distribution as well as considerable cold intolerance.

Mr Thomas' report was also concerned with 'Dupuytren's contracture', which played no part in Mr Aburrow's claim. Mr Thomas noted:

with excision of his Dupuytren's, I think we may be able to improve his contracture and range of movement but I do not believe that this would improve either his sensory abnormality or cold intolerance symptoms and indeed surgery for Dupuytren's may make these worse.

26 Mr Haw recorded Mr Aburrow's statement that his index finger was 'extremely painful in the cold weather'. He had 'constant pins and needles'. In Mr Haw's view:

[Mr Aburrow] divided the radial neurovascular bundle and probably damaged the ulnar digital nerve to the volar aspect of the right index finger as well as sustaining skin loss. ... The injury is interfering significantly with his capacity to partake in domestic, social and recreational and occupational activities and it stops him from playing cricket. Interferes with his capacity to play with his children and has changed his work style. He has permanent impairment. The general prognosis is one of ongoing problems unless the problem of the neuroma is addressed and possible reconstruction of the neurovascular bundles is considered, or alternatively the finger is amputated.

27 In his first report, Mr Stapleton recorded Mr Aburrow's statement that his right index finger was 'painful, particularly on a cold morning', and that the finger became blue on a cold morning. Mr Aburrow had 'a partial sensory loss' over 80 per cent of the length of the index finger on the radial side. The flexion and extension capacity of the finger were diminished, and Mr Aburrow's grip was 'significantly reduced'. In Mr Stapleton's opinion, the treatment had been well performed and no further surgery would improve his functioning. There was

significant loss of function and disability with his right, which is his dominant hand, all directly related to the injury ...

28 In his second report, some four months later, Mr Stapleton was asked about the earlier hand injury in 1988. He said:

It is my view that one can never be certain about assessment of what contribution each of the injuries has played to [Mr Aburrow's] right index finger problem as it stands at present; so a reasonable assessment, in my view, would be that 50 per cent of each of those two injuries have contributed to his lack of normal function, as it stands now, of his right index finger.

29 Two medical reports had been obtained on behalf of the defendant, from Mr John Anstee, a plastic and reconstructive surgeon. As her Honour noted, Mr Anstee's opinion was that the injury involved soft tissue and skin only: 'nerves and tendons were intact'.[26] There was a 'reduced range of movement' but Mr Anstee was unable to say how much of that reduction was to be attributed to the relevant injury, as distinct from the 1988 injury. He described Mr Aburrow's prognosis as 'good to excellent'.[27]

30 In a second report, some 14 months later, Mr Anstee described the range of movement of the right thumb and right index finger as 'variable'.[28] He noted a slight reduction in the range of movement as compared with the earlier examination, which he was unable to explain. Mr Anstee noted Mr Aburrow's statement that most righthanded tasks were more difficult than they were prior to his injury, but said:

I have no reason to believe that he is having any difficulty with the activities of daily living from a physical perspective.

31 Her Honour was satisfied that Mr Aburrow had suffered a compensable injury which had resulted in 'ongoing impairment of the right hand'.[29] She was further satisfied that the impairment was likely to last during the foreseeable future.[30]

32 Her Honour identified as 'the real issue' in this case the question whether Mr Aburrow had established that the pain and suffering consequences were 'very considerable'.[31] Her Honour accepted that he suffered from 'various restrictions in the movement of the fingers of his right hand', and that he had difficulty in straightening his right index finger.[32] She also accepted that he had suffered a loss of sensation, and that the position was worse in cold weather.[33]

33 Her Honour noted that Mr Aburrow's counsel had relied on a number of other 'finger cases' considered by other judges of the County Court.[34] Noting that, in a number of those cases there was evidence of 'significant or constant pain',[35] her Honour proceeded to set out her findings. Because complaint is made about the adequacy of her Honour's reasons, this part of the judgment needs to be set out in full:

In the present case there is little, if any, precise evidence as to the constancy and level of pain. Although there are references to the plaintiff's condition worsening in cold weather, the plaintiff otherwise says little about it, and nor do the doctors. Significantly, the plaintiff also manages any pain by only 'occasionally' taking overthecounter painkillers.

The plaintiff's return to work is not decisive and I must consider the whole of the evidence pursuant to Stijepic, above. However, although there is some reference to difficulties in the affidavit material, the plaintiff's evidence in court was not only that he was able to work but that he found the work 'easy'. There was no evidence that the plaintiff is currently managing his work with great difficulty, for example, through access to regular medication or extra sleep.

I accept that there has been impact on the plaintiff's daily life. However, he appears to have adjusted to a point where his left hand has become stronger than his right hand. There has been an impact on his ability to draw. However, in his oral evidence he said that the sort of things he used to draw as a hobby were tattoos for himself and his friends. It is not evident that this would have remained a significant part of his life.

In terms of the expressed desire to be a boner, at most, he appeared to be engaging in some boning 'on the side' with the defendant. It is also highly significant that, notwithstanding a varied work history, the plaintiff had not engaged in any boning between 1988 and 2005. Given his own apparent disinterest in boning over many years, I therefore do not accept that any inability to bone would really be of importance to the plaintiff.

The plaintiff may not be able to play sports as well as he might have in the past. However, he is now 45 years old and would be unlikely to engage in sports, such as gridiron, as he did in the past.

It is also important in considering this application to consider what is retained pursuant to Stijepic, above. The plaintiff currently enjoys stable employment and appears to have filled his life with a significant role in his children's sporting pursuits. Thus he is now the head coach of his sons' football team and he clearly enjoys this role immensely. He may not be as social as he once was, but this appeared largely due to his current efforts to keep away from alcohol, which efforts do him credit. The plaintiff instead enjoys an occasional game of pool at home, a well maintained home, and regular drives to the country with family.

In all the circumstances, the plaintiff has not satisfied me that the consequences to him of his impairment, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked, and as being at least very considerable.[36]

34 We reject the appellant's submission that the reasons for judgment '[fail] to demonstrate a path of reasoning'. In our respectful opinion, her Honour's analysis is unimpeachable. Her Honour was answering the statutory question in accordance with the established principles. The material parts of the evidence having been summarised earlier in the judgment, this explanation of her Honour's conclusions was entirely sufficient for the purpose. The conclusions of fact were open to her Honour on the evidence before her. The appeal must therefore be dismissed.

[3] Aburrow v Network Personnel Pty Ltd & Anor [2011] VCC 299, [75] ('Reasons').

[4] Section 134AD was repealed by s 60 of the Accident Compensation Amendment Act 2010 (Vic). The repeal of s 134AD took effect on 10 December 2009: Accident Compensation Amendment Act 2010 (Vic) s 2(5). Section 134AD provided:

On the hearing of an appeal to the Court of Appeal from a decision made on an application under section 134AB(16)(b), the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive under any other Act or rules of court.

[6] Ibid 835, 836-7, 841-3, 853-4, 858, 860. See also Hawkins v D H L (Express) Australia Pty Ltd [2013] VSCA 26, [4].

[10] See, eg, Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12, [46]-[47].

[12] Haden (2012) 31 VR 1, 109-10 [46]-[48].

[13] The affidavits were made, respectively, on 8 April 2008, 19 August 2009, 27 August 2009 and 20 December 2010.

[21] Ibid [27]. See also Haden [2010] VSCA 69; (2010) 31 VR 1, 4-5 [9]-[14].

[22] Sutton (2012) 31 VR 100, 110-11 [49]-[50].

[23] Haden [2010] VSCA 69; [2010] 31 VR 1, 5-6 [15]-[16] (citations omitted).

[35] Ibid. Her Honour cited the cases of Graham v Qantas Airways (2009) VCC 0537, [49]; Sasalu v Coburg Services Pty Ltd (2009) VCC 1283, [33].

[36] Reasons, [69]-[75] (citations omitted).

Compensation Act 1985

Compensation Amendment Act 2010

Aburrow v Network Personnel & Worksafe Victoria [2013] VSCA 46

At a glance

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Judgment (81 paragraphs)

Aburrow v Network Personnel & Worksafe Victoria [2013] VSCA 46 (7 March 2013)

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Legislation Cited (3)

Cases Cited (3)