Abbas v Transport Accident Commission
[2015] VSCA 217
•19 August 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0002
| SEERAT ABBAS | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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| JUDGES: | BEACH JA and GARDE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 August 2015 |
| DATE OF JUDGMENT: | 19 August 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 217 |
| JUDGMENT APPEALED FROM: | Abbas v TAC [2014] VCC 2063 (Judge Davis) |
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ACCIDENT COMPENSATION – Transport accident – Serious injury application – Dominant hand injury – Consequences of impairment – Consequences relating to pecuniary disadvantage and pain and suffering – Application for leave to appeal from order dismissing serious injury application – Application granted – Appeal allowed – Transport Accident Act 1986, s 93.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr V Morfuni QC with Ms C Spitaleri | Nowicke Carbone |
| For the Respondent | Mr S O’Meara QC with Mr S E Gladman | Hall & Wilcox |
BEACH JA
GARDE AJA:
Introduction
On 20 June 2009, Seerat Abbas, the applicant, was involved in a transport accident. The applicant had been attempting to close the doors of a dump box on a truck. As the dump box was on an incline, the doors were heavy and difficult to close. While the applicant was attempting to close the doors, the truck suddenly reversed, causing the applicant’s right hand to be jammed in the doors. As a result of the accident, the applicant sustained a distal phalanx fracture of his right ring finger and a nail-bed injury to the right middle finger and right ring finger.
By an originating motion filed in the County Court on 21 September 2012, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’), to bring proceedings at common law claiming damages for the injuries he sustained as a result of the accident. The application was heard in the County Court, by Judge Davis, on 8 December 2014. At the hearing of the application, the applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act — namely, ‘serious long term impairment or loss of a body function’. The body function relied upon by the applicant was the function of his right hand.
On the hearing of the application, the applicant relied upon three affidavits he swore on 10 January 2012, 6 August 2013 and 5 December 2014. A radiology report, various medical reports and reports from a hand therapist were tendered by the parties on the application. The only witness to give viva voce evidence was the applicant. He gave brief evidence-in-chief, adopting his affidavits. The respondent chose not to cross-examine the applicant.
On 12 December 2014, the judge dismissed the applicant’s application.[1]
[1]Abbas v TAC [2014] VCC 2063 (‘Reasons’).
The applicant now seeks leave to appeal and, if leave is granted, appeals against the order dismissing his application. The applicant’s grounds of appeal are as follows:
1.The decision that the applicant’s right hand injury did not constitute a serious injury either misunderstood the evidence or failed to correctly apply the evidence to relevant legal principles or was the result of an erroneous reasoning process.
2.The judge erred in failing to find that there were pecuniary disadvantages suffered by the applicant as a consequence of the injury.
3.The judge failed to properly assess the lack of flexibility in relation to future employment as a pecuniary disadvantage suffered by the applicant as a consequence of the injury and failed to consider that the loss of career may be a serious consequence even though it may not immediately result in loss of income.
4.The reasons for the decision failed to demonstrate an adequate path of reasoning for rejecting the application for leave to commence common law proceedings.
Background facts
The background facts in this matter are largely not in dispute. The applicant was 23 years of age at the time of the accident, having been born in Pakistan on 20 January 1986. He completed high school in Pakistan in or about 2003. He then attended university in Pakistan, and completed a degree in commerce in or about 2007. Thereafter, the applicant worked in his father’s garment-making business in Pakistan, before moving to Melbourne, on a student visa, in or about May 2009.
On or about 8 June 2009, the applicant commenced working as a part-time labourer. At about the same time, he commenced a full-time course in hospitality and commercial cookery at the Holmes College in Melbourne.
The accident occurred on 20 June 2009. Following the accident, the applicant was taken to the Royal Melbourne Hospital, where an X-ray was reported as showing a fracture of the tuft of the applicant’s ring finger on his right hand. The applicant was diagnosed as suffering a distal phalanx fracture of his right ring finger and nail-bed injuries to his right middle finger and right ring finger. He underwent surgical repair of the nail beds of those fingers, staying at the Royal Melbourne Hospital overnight before being discharged home with analgesic medication. He thereafter attended at the Royal Melbourne Hospital for several follow-up examinations. Subsequently, the applicant was referred to a hand therapist, Ms Megan Fitzgerald. The applicant underwent hand therapy under Ms Fitzgerald’s care between July 2009 and early 2011.
The applicant is right-hand dominant. Following the transport accident, he was unable to manage the physical requirements of his hospitality and commercial cookery course, and he discontinued that course in mid-2010. Between mid-2010 and 2012, the applicant was a full-time student at the Menzies Institute of Technology, where he completed a Diploma of Electronics & Communication Engineering. However, the applicant deposed that he could not manage the repetitive work involved in working as an electronic engineer.
In about August 2013, the applicant started a full-time, post graduate masters of accountancy course. His evidence was that he hoped to finish that course in 2015.
The applicant’s employment history between the accident and the hearing of his application in the County Court may be summarised as follows:
(1)Between November 2009 and October 2010, the applicant worked part-time as a cleaner at the Greensborough shopping plaza. The applicant deposed that he found this work difficult to cope with because of his injury.
(2)In October 2010, the applicant obtained a security licence and started working as a security guard approximately twice per week.
(3)In March 2011, the applicant started working as a part-time technical assistant at Autotest Products Pty Ltd, while continuing to perform some security work from time to time.
(4)The applicant left Autotest at the start of 2012, and found employment with Dome Security. At the time of the hearing of his application, the applicant was working approximately 20–24 hours per week as a security guard at a shopping centre.
A summary of the applicant’s income tax returns for the 2010, 2011 and 2012 financial years showed that the applicant’s income had increased from $17,000 in 2010 to approximately $24,000 in 2011, and then to about $42,800 in 2012.
As at December 2014, the applicant was a patron and spokesperson for the rights of religious freedom and speech in Pakistan. He had also become active in helping local communities in Pakistan to set up safer places of religious worship. He deposed that he was passionate about these activities and that they gave him direction and purpose.
The applicant’s evidence
In his first affidavit (10 January 2012), the applicant deposed to ceasing attending Ms Fitzgerald in early 2011 as he did not feel any significant improvement in his symptoms. As at January 2012, the applicant said he continued to follow a home exercise program; and from time to time, he would take over-the-counter panadol for pain in his hand. He said he usually avoided taking medication as it often caused him to experience an upset stomach. The applicant described his pain as follows:
Since sustaining my work injuries, I continue to suffer from pain in my right hand, particularly in my ring and middle fingers. The pain usually comes on with any activity which involves repeated use of my right hand, repeated bending of my middle and ring fingers, heavy or repeated lifting with my right arm, or any other activity which places significant pressure on my right hand.
The pain in my right hand sometimes comes on even when I am not using it. For example, I commonly experience pain with a change in weather. I find that my right hand has become sensitive to cold and I usually have to wear gloves on cold days.
I also usually experience stiffness in my right middle and ring fingers. As a result of the pain and stiffness, I now usually have a weak grip in my right hand and I drop things at times. In addition, my right hand tends to tire quickly when I use it and I often have to take a break from what I am doing and rest.
…
The pain in my right hand frequently wakes me up during the night, particularly if my right hand is in an awkward position while I am asleep.
The applicant deposed that prior to the accident, he was passionate about cooking and catering, but that his ability to cook and cater had now become very restricted. As a result of his injuries, he said that he had to abandon his course in hospitality and commercial cookery. This was a matter which was of significance to him.
As to his engineering course, the applicant deposed that the pain in his right hand is exacerbated by prolonged writing and typing on a keyboard, and by hands-on work that he was required to perform in practical classes. Additionally, the applicant deposed to having to decline to perform a number of tasks in the course of his employment with Autotest because of the symptoms in his right hand.
In his second affidavit (6 August 2013), the applicant deposed that the pain in his right middle and ring fingers was present most of the time. He said the pain varied in intensity, and that using his hand could aggravate the pain in both fingers. He also deposed that his right hand was significantly weaker than his left hand, and he found it difficult to grip things properly. He said he took panadol from time to time ‘if the pain is really bad’. He also said he used topical creams on his fingers when they were stiff and sore.
In his second affidavit, the applicant gave further evidence about his desire to work as a chef. He said he had anticipated working as a chef by that time (August 2013), but was now pursuing a career path which he did not really enjoy. He said this was because he had had to change his career path because of his injury.
In his third affidavit (5 December 2014), the applicant deposed to his condition being no better than it was at the time of swearing his second affidavit. He said that he continued to suffer the symptoms and restrictions previously described with day-to-day activity. He said he was still unable to close his hand and make a fist properly. Again, he said that his right hand was significantly weaker than his left hand.
In his third affidavit, the applicant said he was not having active medical treatment. He said that there was nothing that could be done for his injury, and that he still took panadol as required and used deep heat on his fingers when they were stiff and sore.
The medical evidence
While there are a number of reports concerning the applicant’s initial injury and treatment (and some reports dealing with psychological matters), the critical medical evidence so far as the long-term physical effects of the applicant’s injuries was that contained in reports from Mr Damian Ireland and Mr Murray Stapleton. Mr Ireland is a hand surgeon who examined the applicant on behalf of the respondent on 19 February 2013 and 18 November 2014. Mr Stapleton is a plastic and hand surgeon who examined the applicant, at the request of the applicant’s solicitors, on 13 June 2013 and 5 June 2014.
In his first report (19 February 2013), Mr Ireland records the applicant’s then current complaints as follows:
Mr Abbas complains of pain in his right hand involving the middle and ring fingers. He is not able to localise his pain to any aspect of the digit. He does not know how frequently this occurs or for how long it lasts. He claims the pain comes on ‘when I think about it’. It is also provoked by cold temperatures. He also complains that he has lost confidence since his injury.
Mr Ireland then records his examination findings, before concluding that the applicant’s prognosis is ‘excellent’, and that the applicant ‘is not incapacitated for any employment or occupational past-time he would have otherwise chosen’.
The next examination in time is Mr Stapleton’s first examination on 13 June 2013. Mr Stapleton records the applicant’s then current status as follows:
His right middle and ring fingers are painful for most of the day, the pain being made worse in cold weather. He has a complete range of flexion of the fingers, but flexion of the fingers involved is painful and, as such, he has a very weakened grip. There has been no recent improvement.
When he types on a keyboard, that is painful for him.
Mr Stapleton then set out his findings on examination, before concluding that the diagnosis was a crushing injury to the applicant’s right middle and ring fingers. The prognosis for the applicant’s hand was said to have ‘reached its maximum medical improvement’. Mr Stapleton concluded:
The injuries have had a profound effect on his social, domestic and recreational activities, for [the] reasons stated.
It is also undeniable that this gentleman’s right hand which has been injured and that is his dominant hand, and, thus, his earning capacity has been profoundly affected because of this accident.
The next examination in time was Mr Stapleton’s second examination on 5 June 2014. Following this examination, Mr Stapleton expressed the same opinions as he expressed following his first examination. Specifically, Mr Stapleton said that the applicant’s condition had stabilised and that the injuries have had a profound effect on the applicant’s social, domestic and recreational activities, as well as a profound effect on the applicant’s earning capacity.
The last relevant examination was Mr Ireland’s second examination on 18 November 2014. As to progress since Mr Ireland’s first examination, Mr Ireland said:
Since then Mr Abbas states there has been no substantial change in his symptoms with regard to the right hand.
Mr Abbas complains of pain in his right middle finger. He has difficulty locating this pain, initially describing the pain on the dorsal aspect of the middle finger over the proximal and middle phalanges and then describing the pain as circumferentially involving the distal phalanx. This pain is ‘on and off’ and is provoked by ‘work stress’. He is not sure how often this pain occurs but recalls that the last time it worried him was two days ago. It lasts for ‘minutes’. It causes him difficulty when he is typing and he describes ‘a tense feeling in my right hand’.
Following his second examination, Mr Ireland expressed the opinion that the applicant’s prognosis was excellent, and that the applicant ‘is not incapacitated for employment in any capacity for which he is otherwise suited’.
Mr Ireland’s opinion was then conveyed to Mr Stapleton by the applicant’s solicitors. On 26 November 2014, Mr Stapleton wrote two letters to those solicitors. In one letter, Mr Stapleton wrote:
Through the night I have had cause to rethink the details of my report you requested as a matter of urgency. Reading through Dr Ireland’s report, and I must state that Dr Ireland would be regarded as a respected Melbourne hand surgeon, your client has provided for him sufficient information to note that he has no whole person impairment associated with the injury described. That draws the attention, and it certainly will be the case if this matter goes to litigation, that his presentation to me was inconsistent, ie it is not conceivable that for one surgeon who (scil, he) presents a full range of flexion and extension of the fingers and for me he presented to me difficulties as I have previously indicated in my initial report.
I therefore suggest that this matter will provide you with difficulty should you consider litigating the matter. Still, that is a decision for you to determine.
In the other letter, Mr Stapleton said:
It is clear that the examination findings of Mr Ireland are different from mine and that involves how this gentleman presented at the time and whether, when asked to perform manoeuvres such as movement of the right middle and ring fingers, he did it to the best of his ability. I note in that regard, Mr Ireland, on his examination states that ‘there is no angular rotation or deformity of either finger and there was a full active range of motion of all joints of all five digits.’ The range of movements that I indicated were certainly not full and, upon that basis, I offered my opinion so far as impairment is concerned.
Using the Jamar dynamometer, again the indications are, on the basis of a genuine attempt at performing the best of his capacity to perform a grip (sic), is a 35 per cent loss of grip power on the right-hand side and, upon that, I made an observation that he had a genuine whole person impairment. The assessment of somewhere perhaps between the two is where the real situation lies (sic). I have read through my report and, as you have requested, I see no reason to alter what I have previously submitted.
The judge’s reasons
The judge commenced her judgment with a description of the applicant’s case as follows:
Mr Abbas is 28 years old and right-handed. He suffered a crushing injury to the middle and ring finger of the right hand in a transport accident on 20 June 2009. He sustained a distal phalanx fracture of the right ring finger and nail bed injury of the right middle finger and right ring finger. He had surgical repair of the nail bed of the right middle and ring fingers, but the fracture was not repaired. He has suffered pain in the right hand since that time, and has reduced grip strength in that hand. He worked as a book-keeper in Pakistan before moving to Australia on a student visa in about May 2009, and was enrolled in a hospitality course which he hoped would lead to a career as a chef. He says that he changed courses when he could not manage the physical requirements of the kitchen work component of the course. He then qualified as an electronic engineer but found he could not manage the repetitive work involved in that occupation. He worked as a cleaner at least between November 2009 and March 2010. He then obtained a security guard licence and works in that field a few times per week. He is in the process of completing a Masters of Accountancy course and plans to work in that field. He says that, in terms of pain and suffering and pecuniary disadvantage, he has suffered a serious injury within the meaning of sub-paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Transport Accident Act1986 (Vic) and he seeks leave to issue proceedings for the recovery of damages in respect of his long-term impairment of the right hand.
The plaintiff says that he was not cross-examined by the defendant and so the matters to which he deposes in his affidavits are unchallenged and should be accepted. All the surgeons who have treated and/or examined him have received a complaint of right hand pain since the injury, worse during cold weather, and those who have measured grip strength (including his hand therapist) have found his grip strength in the right hand to be considerably less than that in the left hand. None of the doctors found any evidence of exaggeration. The plaintiff’s problems are as follows: he gets pain when the weather changes, wears gloves on cold days, has stiff right ring and middle fingers, has weakened grip strength in the right hand, finds typing difficult, cannot hold heavy items, cannot do motor movements repetitively with the right hand and can no longer do car maintenance. He is able to work full time but would have wanted to work as a chef, or an electronic engineer, rather than as an accountant. He could not manage either of the first two occupations because of the transport accident-related limitations in his right hand. He played cricket at school and is disappointed he can no longer grip a bat or ball adequately. He has suffered an Adjustment Disorder in response to his physical restrictions. No further treatment is available for his condition.[2]
[2]Ibid [1]–[2] (footnote omitted).
The judge then described the evidence in some detail, before turning to the principles that governed the application. The judge then said:
It was common ground and I therefore find that in the transport accident the plaintiff suffered a crush injury to distal phalanges of the right middle finger and ring finger, and that he underwent surgical repair of the nail bed to the middle and ring fingers. He also suffered a comminuted fracture of the tuft of the distal phalanx of the right finger, which was left to heal.
It was also common ground and I therefore find that as a result of the injury to the ring and middle fingers of the right hand sustained in the transport accident the plaintiff has suffered a long term impairment of the function of the right hand, which has produced physical and secondary psychological sequelae.
I accept that the plaintiff has suffered the pain and restrictions deposed to in his affidavits, relayed to various doctors, and which are outlined at paragraphs 1–2 above.[3]
[3]Ibid [26]–[28]. The paragraphs to which the judge refers are set out in [31] above.
The judge having accepted the applicant’s description of his pain and restrictions, then concluded her reasons as follows:
In relation to pecuniary disadvantage, I note that the recent medical opinion of Mr Ireland, to which Mr Stapleton has deferred, is to the effect that the plaintiff is not incapacitated by reason of his right hand injury for any of the occupations for which he is trained. I also note the evidence to the effect that there has been an increase in the plaintiff’s income every year between 2010 and 2012 (from $17,000 to $24,000 and then to $42,800). He is currently working part time and finishing a Masters qualification in accountancy, and, presumably will find work in that occupation. In all the circumstances, I am unable to be satisfied that he has suffered any pecuniary disadvantage either at all, or at a level which would, on its own, meet the relevant threshold.
In relation to pain and suffering, I accept that there is some loss of enjoyment of life in the plaintiff having to give up hands on occupations such as those of chef, although I note that he is very well educated for such a young man, having studied commerce in Pakistan, hospitality and electronic engineering in Australia, and is currently undertaking a Masters of Accountancy. I note that he has given up cricket which he loved, and has trouble typing and with other activities requiring fine movements or tight gripping with the dominant right hand. I also accept that the plaintiff suffers intermittent pain in the relevant fingers, particularly when subjected to pressure. His grip strength is reduced because of his pain when pressure is applied to the fingers. He takes no medication, except Panadol as required, which he has not required for the past 3 months or so. His sleep is interrupted if he sleeps the wrong way on his hand. His main problem in the right hand is stiffness, and the non-united fracture is of no relevance. He has a full range of movement in the right hand and, on the medical evidence, has made a reasonably successful recovery apart from pain and dysfunction experienced on pressure on the relevant fingers. I take into account that he has suffered a mild Adjustment Disorder secondary to the pain and restriction flowing from the right hand symptoms. I accept that he is a young man and that he may experience symptoms of pain and restriction in the two relevant fingers for the rest of his life. I accept that, for him, the pain and suffering consequences of his long term impairment of the right hand are considerable.
However, in all the circumstances, I am not satisfied that the pain and suffering consequences are more than considerable when compared with other cases in the range of long term impairments.
It follows that his application is dismissed. I reserve the question of costs.[4]
[4]Ibid [29]–[32].
Analysis
The applicant’s complaints about the judge’s decision fall into three areas: first, there is a general complaint that the judge was wrong in failing to conclude that the applicant had sustained a serious injury (ground 1);[5] secondly, there is a specific complaint about the judge’s treatment of the issue of pecuniary disadvantage and limitations on future employment (grounds 2 and 3); and thirdly, there is a complaint that the reasons for decision fail to demonstrate an adequate path of reasoning (ground 4).
[5]A complaint that, in the absence of specific error, is not easy to make out: see Cowden v Transport Accident Commission [2003] VSCA 198, [18] (Buchanan JA, with whom Phillips and Callaway JJA agreed).
The applicant’s complaint about the adequacy of the judge’s reasons may be disposed of immediately. This complaint is without substance. It is clear from her Honour’s judgment that her Honour acted upon the opinion of Mr Ireland (to whom she said Mr Stapleton deferred) in concluding that the applicant had suffered no pecuniary disadvantage as a result of his injury. The judge supported this conclusion by noting that the applicant’s income has risen each year since 2010. The judge then gave a brief description of pain and suffering consequences before concluding that, while these consequences are ‘considerable’, they do not satisfy the ‘very considerable’ test. A fair reading of the judge’s reasons leaves one in no doubt as to the judge’s path of reasoning for rejecting the applicant’s application.
However, we think there is force in the applicant’s complaints concerning the way in which the judge dealt with the issue of pecuniary disadvantage (grounds 2 and 3, and thus also ground 1). While it is true (as the judge said) that the applicant is well-educated, and that ultimately he may obtain employment in the field of accountancy, there is force in the applicant’s submission that his injuries have caused a loss of flexibility in the workforce, which loss of flexibility relevantly satisfies the description ‘pecuniary disadvantage’. Indeed, when considering the applicant’s pain and suffering consequences, the judge accepted that the applicant’s injuries have resulted in him having to give up hands-on occupations such as his preferred occupation of being a chef. In the circumstances, it was not entirely to the point for the judge to note that the applicant’s income has increased each year between 2010 and 2012. As was said by this Court in State of Victoria v Glover:[6]
Likewise, the argument appears to overlook the lack of flexibility so far as the respondent was concerned in relation to any future employment. Although he is guaranteed a job, as it were, he cannot change that job, and if he were to seek other employment, then his capacity for doing so and obtaining that employment would be greatly restricted, not only because of the nature of the work he has done in the past but, more importantly, because his injury has impaired his capacity to do different work in the future. In these unusual circumstances his present loss of income, however, is of relatively minor consequence in determining whether there has been impairment of the relevant kind. The impairment may be ‘serious’ although it does not at present result in any substantial loss of income.
[6][1998] VSCA 93, [30] (Ormiston JA, with whom Tadgell and Buchanan JJA agreed).
While, as the respondent submitted, Glover was a very different case on the facts, compared to the present case, at least one point may be derived from it: a pecuniary disadvantage is not to be overlooked, in applications of this kind, merely because what would be assessable as the loss of earning capacity over an applicant’s life, is not presently productive of actual loss of income at the time of the application. The fact that there may be no actual pecuniary loss to the time of the application does not mean that a loss that may occur in the future, by reason of the relevant injury limiting an applicant’s capacity for certain jobs, should not be properly considered as a relevant pecuniary disadvantage. To dismiss the issue of pecuniary disadvantage by reference to the fact that the applicant’s income had increased in each year between 2010 and 2012, was to disregard the totality of the applicant’s circumstances and, in the circumstances of this case, constituted specific error on the part of the judge. The fact that the applicant might always be able to find and hold down employment notwithstanding his injuries does not preclude proper consideration of the issue of pecuniary disadvantage caused by a real limitation that has been imposed upon the applicant in respect of other employments for which has demonstrated suitability.
Next, it appears to us that the judge dealt with the issue of pecuniary disadvantage separately from the issue of pain and suffering consequences, concluding that she was unable to be satisfied that the applicant had suffered ‘any pecuniary disadvantage either at all, or at a level which would, on its own, meet the relevant threshold’.[7]
[7]Reasons [29] (emphasis added).
The judge’s consideration as to whether pecuniary disadvantage ‘on its own’ might meet ‘the relevant threshold’ was, in the circumstances of this case, again not entirely to the point. The point was whether the consequences of the injury that ‘relate to pecuniary disadvantage and/or pain and suffering’ satisfied the ‘very considerable’ test.[8] In this case, the applicant was entitled to have his application considered by reference to the consequences that related to both pecuniary disadvantage and pain and suffering. If the consequences of the applicant’s injury that relate to pecuniary disadvantage and pain and suffering are such that, when his injury is judged by comparison to other cases in the range of possible impairments or losses, it can be fairly described as at least ‘very considerable’, then the applicant is entitled to succeed.[9]
[8]See Humphries v Poljak [1992] 2 VR 129, 140.
[9]Ibid.
Next, we think the judge erred in her treatment of the relevant medical evidence (ground 1). The judge appears to have based her findings in relation to pecuniary disadvantage upon the proposition that Mr Stapleton ‘deferred’ to Mr Ireland’s opinion. First, we do not read Mr Stapleton as deferring to Mr Ireland on this issue, or at all. Rather, Mr Stapleton said he had had cause to rethink his opinion. Having read through his earlier report, however, Mr Stapleton saw no reason ultimately to alter what he had previously written.
Secondly, it appears to us that accepting the applicant has suffered the pain and restrictions deposed to in his affidavits (as the judge did),[10] forecloses the possibility of accepting Mr Ireland’s opinions where they differ from Mr Stapleton’s opinions. Mr Ireland’s opinions are predicated on the proposition that the applicant is not able to give a good description of his pain and symptoms. Indeed, Mr Ireland appears to be of the view that there is nothing wrong with the applicant. However, those opinions cannot stand with the acceptance of the applicant’s uncontradicted evidence about the pain and restrictions deposed to in his affidavits, and accepted by the judge.[11] Further, when one looks closely at the histories and examinations of Mr Stapleton and Mr Ireland as recorded by them, one sees that Mr Stapleton has formed his opinions based upon the underlying facts accepted by the judge, whereas Mr Ireland’s opinions are based upon a factual scenario that is significantly different from the evidence given by the plaintiff and accepted by the judge. It follows that we think the judge was wrong to act on Mr Ireland’s reports to the extent that they differed from the opinions expressed by Mr Stapleton.
[10]Reasons [28].
[11]Ibid.
Additionally, while the judge only makes specific reference to Mr Ireland’s opinion when dealing with pecuniary disadvantage, the judge’s summary of the applicant’s pain and suffering consequences at the conclusion of her reasons[12] is, in our view, more reflective of Mr Ireland’s opinion than Mr Stapleton’s opinion. Put shortly, while the judge said that she accepted the applicant’s pain and restrictions as deposed to in his affidavits, when ultimately considering the matter, her Honour appears to have proceeded upon the more limited basis described in Mr Ireland’s reports. To the extent the judge did so, we are of the view that she erred.
[12]Ibid [30].
The judge having erred in the way we have described, it falls to this Court to either remit the matter to the County Court, or to decide the serious injury question itself. There are no credit issues in this case, and the applicant was not cross-examined. This Court is in as good a position as the judge was to decide the serious injury question. In our view, it would involve an unacceptable duplication of costs to remit the application to the County Court. Accordingly, and as we are fully seized of the matter, we propose to decide the serious injury question ourselves, rather than to remit the proceeding for rehearing.
The applicant is a relatively young man. He has suffered an injury to the ring and middle fingers of his dominant hand. That injury has been productive of pain that, at the time of the application, had been present for four and a half years. The applicant, whose evidence was accepted by the judge and not challenged by the respondent has described his pain as being present most of the time but varying in intensity. Additionally, and again unchallenged, the applicant’s evidence is that his right hand is significantly weaker than his left hand. Mr Stapleton records the applicant’s loss of grip strength at 35 per cent. Curiously, Mr Ireland does not appear to deal with grip strength in either of his reports. Importantly, there is no suggestion that the applicant’s injury will improve or that his pain will subside over time. To the contrary, it is not expected that there will be any further improvement in the injury.
When one looks at the pain and other consequences of the applicant’s injury as described by him together with the pecuniary disadvantage that has been brought about by the restriction imposed on the applicant in relation to hands-on work, in our view, the applicant satisfies the ‘very considerable’ test. That is, the consequences of the applicant’s injury that relate to pecuniary disadvantage and pain and suffering are such that when the injury is judged by comparison to other cases in the range of possible impairments or losses, it can be fairly described as at least ‘very considerable’.[13] The applicant’s pain and limitations are substantial. They involve his dominant hand and therefore affect, and will continue to affect indefinitely, all aspects of his daily life and work in the way he has described in his affidavits. The consequences of his injury are thus very considerable.
[13]Ibid.
Conclusion
We will grant leave to appeal, and allow the appeal. We will set aside the orders made in the County Court and in lieu thereof grant leave to the appellant to commence a proceeding for common law damages in relation to the injuries he sustained in the accident on 20 June 2009.
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