Ajang v VWA
[2025] VCC 1295
•9 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-07331
| JOHN AJANG | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE OVER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2025 | |
DATE OF JUDGMENT: | 9 September 2025 | |
CASE MAY BE CITED AS: | Ajang v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1295 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – partial amputation of left index finger and scarring – leave granted to the plaintiff to argue that he has one or both a “serious permanent impairment” and “serious permanent disfigurement” - whether plaintiff has a “serious permanent impairment” – reliability of plaintiff’s affidavit evidence about impairment consequences – whether plaintiff has a “serious permanent disfigurement”
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Dostal v Lynch Group (Ruling) [2012] VCC 1247; Haden Engineering Pty Ltd v McKinnon (2010) 3 VR 1; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Baker v Transport Accident Commission (1997) 1 VR 662; Ingram v Ingram (1996) 2 VR 435; Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187; Kalinic v Acron Engineering Pty Ltd and Victorian WorkCover Authority [2013] VSCA 341; Transport Accident Commission v Garcia [2015] VSCA 225; Cahun v Victorian WorkCover Authority [2023] VCC 413
Judgment: Proceeding dismissed subject to making a costs order
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr O Lesage | LHD Lawyers |
| For the Defendant | Ms M Cameron | Lander & Roger |
HIS HONOUR:
Introduction
1The plaintiff was born in 1999 and is 26 years old. He completed year 12 and then worked in a variety of jobs before starting with Unique Safety Rails as a labourer in September 2020. He is right hand dominant. He had a fully functioning left hand until 3 September 2021. On that date, while working with Unique Safety Rail dismantling scaffolding on a roof, a piece of metal fell and struck his left index finger, severing the tip (“the work incident”). He was taken to hospital and on the same day had a skin graft applied to the tip of his left index finger, with skin harvested from the palm of his left hand.
2He has suffered injuries to his left hand: an amputation of about 1 centimetre of the tip of his left index finger and scarring on the index finger and palm (“left-hand injuries”). He attended the outpatient clinic of Eastern Hospital a few times for hand therapy management. He has not had medical treatment for his left hand since 22 September 2021.[1] Each day he applies Vaseline to the tip of his index finger.[2]
[1] Transcript of hearing on 30 July 2025 (“T”) 7, line (“L”) 18-20
[2] T7, L14-20
3The plaintiff had a short time off work and then returned to work with Unique Safety Rails for a couple of weeks. He found alternate employment in traffic management, which he continues to work in today.
4He applies for leave pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”) to commence a proceeding for his left-hand injuries for damages for pain and suffering only.
5There is no dispute between the parties that the work incident happened, it has caused the left-hand injuries, and it has caused permanent impairment and disfigurement to his left hand. The medical evidence was refreshingly limited and consistent. The contested issues are confined to the following:
(a) what are the permanent impairment consequences from the left-hand injuries and are they “serious”, in the context where the defendant claims the plaintiff’s account in his affidavits of his impairment consequences are not reliable; and
(b) what is the permanent disfigurement to his left hand and is it “serious”?
The proceeding
6The plaintiff’s application under s328(2) of the WIRC Act relied only on sub-paragraph (a) of the definition of serious injury in s325 of the WIRC Act, being a serious permanent impairment of a body function. At the hearing, he sought to rely, in addition, upon sub-paragraph (b) of the definition of serious injury, a serious permanent disfigurement.
7I granted leave for the plaintiff to amend his application to enable him to seek to establish serious injury under one or both of sub-paragraphs (a) and (b) of the definition of serious injury in s325 of the WIRC Act.[3] The making of the amendment caused no prejudice to the defendant, despite late notice of it, and it was in the interest of justice for the plaintiff to have the opportunity to argue fully his claim that the injuries were a “serious injury”, as he cannot bring a second application in respect of the left-hand injuries.[4]
[3] Dostal v Lynch Group (Ruling) [2012] VCC 1247
[4]WIRC Act, s338
8At the hearing the plaintiff adopted affidavits he made on 15 July 2024 and 11 July 2025 with minor clarification. I sighted with Counsel the plaintiff’s left-hand injuries including having him move his left hand into various positions. The defendant cross-examined the plaintiff about his claimed impairment. It showed surveillance footage. The thrust of the cross-examination was that the plaintiff’s claims in his affidavits of the consequences of impairment were overstated. The plaintiff tendered documents including a report from Dr Murray Stapleton dated 4 May 2025. The defendant tendered documents including the surveillance footage, a report from Dr Darnell Nam dated 5 July 2023, an extract from Easten Health medical records and a letter from the Australian Defence Force (“ADF”).
Medico-legal evidence
9Dr Stapleton, plastic and hand surgeon, medicolegally examined the plaintiff on 15 April 2025 at the request of his solicitors, and he provided a report dated 4 May 2025.
10Dr Stapleton diagnosed the injury as a “crushing amputation of the tip of [the plaintiff’s] non-dominant left index fingertip”. He examined the plaintiff’s left hand, and he stated that his examination showed:
“His left index finger has been shortened by 1 cm … The left index fingernail is parrot-beaked. He has 1 cm of partial sensory loss over the pulp of the left index finger.
His distal interphalangeal joint flexes from 0-60°. The proximal interphalangeal joint and metacarpophalangeal joint flex and extend normally.”[5]
[5]Report of Dr Murray Stapleton dated 4 May 2025, 3
11Dr Stapleton records in his report that the plaintiff reports no pain in his left hand at rest but that:
“[he] has no appreciable sensation over the pulp that is skin grafted on the tip of his left index finger. Manipulating small objects is a problem for him …if he is picking up a small object, he has to oppose the pulp of the thumb to the left middle finger. It is uncomfortable for him to apply a grip with his left hand and the power of his grip is weaker because of his injury.”[6]
[6]Ibid 2
12Dr Stapleton’s report referred to a skin graft having taken place, but he made no diagnosis of injury at the site of the graft and did not record any complaint made by the plaintiff about any symptom from the site of the graft such as discomfort. The photographs attached to his report are of the left index finger and none of them are of the site of the graft.
13Dr Nam, plastic, reconstructive and hand surgeon, medicolegally examined the plaintiff on 5 July 2023 at the request of the defendant’s solicitors. He provided a report dated 5 July 2023.
14Dr Nam examined the plaintiff’s left hand and found that:
“There is about 1 cm of shortening of his left index finger. The nail is beaked. The pulp of his left index finger is atrophied and there is a skin graft scar over the tip measuring about 1 cm in diameter.
There is a full range of movement of the interphalangeal joints of his left hand. There is diminished sensation of the tip of his left index finger.”[7]
[7]Report of Dr Darrell Nam dated 5 July 2023, 3
15Dr Nam diagnosed the plaintiff as having a partial amputation of the tip of the left index finger causing disability. He opined that there was no abnormal movement of the left index finger, but a loss of length of about 1 centimetre (being about ten per cent of the length of the finger). He said there was a loss of sensation of the tip of the left index finger.
16Dr Nam examined the left hand for scaring and he described observing a faint scar at the base of the left hypothenar eminence (the lower part of the left palm) and scarring at the tip of the left index finger.
17Both Dr Stapleton and Dr Nam opined that the plaintiff’s left injury had stabilised and there was no further need for medical treatment.
Plaintiff’s affidavits
18The plaintiff made affidavits on 15 July 2024 and 11 July 2025 that described, amongst other things, the impairment consequences of his left-hand injuries. In his first affidavit, he stated that:
(a) his left index finger is about 1 centimetre shorter with sensitivity, tenderness and numbness on the tip of it;
(b) he has reduced strength and dexterity in his left index finger and more generally in his left hand;
(c) he can perform daily activities of living but must be “very mindful”[8] of using the tip of his left index finger. He says he has difficulties with removing an earring and opening screw tops with his left hand;
(d) his left hand generally feels very uncomfortable;
(e) his left nail grows irregularly with a noticeable curve;
(f) he has scarring on his left index finger and left palm following the surgery and skin graft, both of which are noticeable to others;
(g) he has restrictions on recreational activities. He played gridiron very frequently but did not return after the injury. He no longer plays ball sports;
(h) he went to the gym up to five times a week but stopped after the injury as he could not grip weights due to a lack of strength and dexterity in his left index finger and left hand;
(i) he uses his right hand and arm to carry heavy or awkward items, which places strain on his right hand and arm; and
(j) he works in traffic management on a casual basis. He can work as much as 14 hours in a day, and he often works five to six days per week. He says he can do the role as he holds everything in his right hand.
[8]Affidavit of Mr Ajang dated 15 July 2024, 3
19The plaintiff’s second affidavit mainly confirms the continuation of the impairment consequence stated in his first affidavit. However, the following matters are noteworthy:
(a) he identifies that he has difficulties with gripping with his left hand and manipulating small objects and gives as example putting on an earing and unscrewing bottle caps;
(b) he repeats that in his traffic management work he holds everything in his right hand but then contradicts the absolute nature of that claim by stating that he uses both hands to carry items when setting up, particularly message boards, and that sometimes a frame slips from his left hand and causes pain; and
(c) he said that he has begun volunteering with the Victorian State Emergency Service. He claims that his injury means he cannot do his duties and gave an example of struggling to hold a nail (or perhaps a screw) in his left hand because of his poor grip and had to call another volunteer, which he said was humiliating.
20The plaintiff was cross-examined about his claimed impairment and the main points to arise were the following:
(a) the plaintiff accepted, with some equivocation, that he used both hands in his work as a traffic controller and that his affidavits were wrong in so far as they suggested he only used his right hand in his work;[9]
(b) he said that working sometimes irritates the tip of his left index finger so that over a shift he may favour his right hand for tasks that he would normally perform with his left hand;
(c) he was shown about 18 minutes of video surveillance taken at times between about 8.55am and 12.23pm on 11 June 2025. It shows him working in traffic control. He is seen performing work tasks such as setting up signs and holding a lollipop traffic sign. He uses his left hand and right hand to carry items, such as signs, and hold lollipop traffic signs. He is seen performing personal tasks such as holding a phone in his left hand while scrolling with his right and putting on a belt. In cross-examination and after being shown the video footage, the plaintiff accepted the footage was consistent with him using his left hand as he would have if it had not been injured. He described a further difficulty with work in putting out traffic cones. Ultimately, he accepted that he could work as a traffic controller without any problem;[10] and
(d) he was challenged about his claim that his left-hand injuries have affected his recreational activities such as stopping him playing gridiron and going to the gym.
[9] T10, L9 – T12, L1
[10]T21, L19-20; T25, L19
21In re-examination, a matter arose that was not in the plaintiff’s affidavits. He said he planned to join the ADF and that his chances of joining were now slim because of his left-hand injuries.
Reliability of the plaintiff
22The defendant submitted that the plaintiff was not a reliable witness about the impairment consequences of his left-hand injuries. It pointed to the inconsistencies between the plaintiff’s claims in his first and second affidavits that he held everything in his right hand in his job in traffic management, the video footage described above in sub-paragraph 20(c), and his ultimate concessions after being shown the video footage to the effect that his left-hand injuries had little or no effect on his work as a traffic controller. The plaintiff in submissions said his oral evidence should be accepted and weight given to his affidavits, though he did not say how much weight.
23The plaintiff’s accounts in his affidavits of how his left-hand injuries affect his work were unclear. At least by his second affidavit his claim that he only carried objects in his right hand was qualified – some may say contradicted – by him saying that he put out traffic signs using both hands. In cross examination, his initial answers seemed to conflate the proposition that he only used his right hand at work with the proposition that he used both hands at work but sought to avoid persistent use of his left hand because of injuries to it.[11] After he saw the video footage, which showed him using his left hand without apparent restriction, he accepted in cross-examination that he could really work without any problem despite his left-hand injuries.[12] My overall impression was that the affidavits do not necessarily reliably set out the effect of his injuries on his work and this raises more general concerns about his reliability.
[11] See, for example, T13, L19-23
[12] T25, L19
24I exercise some caution in accepting the plaintiff’s accounts in his affidavits of his impairment consequences. But this is a case where there is objective evidence of injury causing impairments of the type described by the plaintiff, with the real issue being about the extent of the impairment. In making findings about the impairment consequences, I have placed greater weight on the plaintiff’s oral evidence and especially the concessions he made in cross-examination. Where there is an inconsistency between his affidavits, his oral evidence and what he has told doctors, I have generally put less weight on his account in his affidavits and favoured what he is recorded as saying to doctors.
Findings about the injury and impairment consequences
25The plaintiff suffered the left-hand injuries from the work incident. About 1 centimetre of his left index finger has been amputated, and his nail on that finger partially curves over the tip of the index finger, which Dr Stapleton and Dr Nam refer to as beaking of the fingernail. At the tip of the finger there is scarring where the skin graft was applied. There is also some scarring on the palm of his left hand from where the skin was harvested.
26He was 22 years old when the left-hand injuries happened. He will have to live for an extended period with the impairment consequences from the injuries. The impairment consequences will be permanent, his injuries are stable, with no further treatment likely.
27The injury to his left hand is to his non-dominant hand. He has numbness and sensitivity in the tip of his left index finger and a beaked fingernail, which is more difficult to manage. This is consistent with the partial amputation and the scarring from the skin graft. Dr Nam records the plaintiff as at 5 July 2023 complaining of pins and needles and cold intolerances but I find that these had ceased given that Dr Stapleton did not record the plaintiff complaining of them on 15 April 2025 and the plaintiff does not refer to suffering these symptoms at the time of making his affidavits on 15 July 2024 and 11 July 2025.
28I do not accept the plaintiff’s claim that his left hand is “very uncomfortable generally”[13] from the injuries. In Dr Stapleton’s opinion, the parrot beaking of the nail means he can suffer discomfort or pain if he presses the tip of his left index finger onto a flat surface, but he otherwise records that the plaintiff as having “no pain in his left hand at rest”.[14] This is consistent with the plaintiff’s complaint that gripping flat surfaces can cause discomfort or pain. I find that he has occasional pain or discomfort in the tip of his left index finger if he presses the tip into a flat surface, but otherwise he does not have constant pain or discomfort in his left index finger or left hand. There is also no pain or discomfort from the scarring on the palm on his left hand. There is no impairment from the scarring on the palm of his left hand.
[13]Affidavit of Mr Ajang dated 15 July 2024, 3
[14]Report of Dr Murray Stapleton dated 4 May 2025, 3
29The plaintiff last had medical treatment for the injuries on 22 September 2021, being within three weeks of the work incident. Since, he has applied Vaseline each day to the tip of his left index finger. He does not see doctors. He does not take pain relief medication. Even allowing for a degree of stoicism, the lack of medical treatment and pain medication is consistent with my finding that he has occasional pain or discomfort.
30I accept he has some reduction in strength and dexterity in his left index finger but otherwise does not have abnormal movement of the finger. Each of Dr Stapleton and Dr Nam record these symptoms and otherwise record normal or near normal movement of the finger.
31The injury to his left hand affects the function of his left hand but in a limited way. This is evident from the effect of the injury on his work. He has worked for the last three years in traffic management. It is a better paying job than he was doing at the time of the work incident. He is employed on a casual basis and works five to six days a week, sometimes up to 14 hours a day. Although his affidavits created the impression that his left-hand injuries meant that he carried and held objects solely or mainly in his right hand, that impression was wrong. As he conceded, he uses both hands in his work, and he has no real problem with using his left hand. However, I accept that when he engages in repetitive tasks at work, like griping flat surfaces that require him to press the tip of his left index finger to a surface, he can suffer temporary and occasional discomfort or pain in the tip of the finger, but that it is mild. Further, that he can have difficulties with manipulating small objects if it would normally require him to manipulate the object by using a pincer like movement by opposing his left index finger and thumb and that, as recorded by Dr Stapleton, he has had to adapt by instead opposing his left middle finger and thumb.
32When he has discomfort or pain in his left index finger, he will sometimes avoid using his left hand for tasks that could further irritate his index finger. But the impact is limited. He is right-hand dominant and the times when he will favour his right hand for tasks to avoid the chance of causing discomfort in his left index finger are not common. I do not accept the plaintiff’s claim that his capacity for manual work has been affected to any great extent, nor that he has suffered strain to his right arm and hand because of his left-hand injuries.
33The impairment has impacted on his recreational activities. He played gridiron for a few years before the work incident. In the year before the injury, he played about four games and trained on a Thursday. I accept this was a social outlet for him, and that he stopped playing gridiron because of his left-hand injuries. Similarly, I accept that he avoids playing ball sports. He went to a gym five days a week lifting weights. I do not accept that his left-hand injuries prevent him from going to the gym: he has a home gym that he uses, and he has not yet sought to explore what exercises he can do at a gym with his left-hand injuries. Regardless, his plan is to return to the gym, and it seems likely he will resume going to a gym, though with possibly modified routines. At its highest, the left hand injuries may require him to modify his previous gym routines.
34The plaintiff applied to join the ADF. He said in evidence that his left hand injuries mean he has a slim chance of being accepted by the ADF. He did not disclose in his oral evidence that the ADF had rejected his application for another unrelated medical condition. According to a letter from the ADF, it refused his application because he had a medical condition (unrelated to the left-hand injuries) that meant he was medically unsuitable for ADF services.[15] The letter goes on to refer to his left-hand injuries as one of three conditions (the other two being unrelated to his left hand injuries) that could affect his medical suitability for service. He can reapply in 2026 to join the ADF. At its highest, his left-hand injuries may present a problem for any future application, but this is in the context that he may be precluded from service for other unrelated medical conditions.
[15] Letter from Australian Defence Force dated 30 January 2024
35The left-hand injuries have otherwise had little impact on many aspects of his life. He can perform most activities of daily living without problem. He finds tasks that require use of the tip of his left index finger difficult, such as putting on an earring, which he wears occasionally, but can modify how he performs tasks so that they can be done with little or no discomfort. He said that he struggles to open a screw top bottle with his left hand, but as a right-hand dominant person he would normally do this with his right hand. The defendant, in closing submissions, took me through the factors considered by the Court of Appeal in Haden Engineering Pty Ltd v McKinnon.[16] Having regard to that non-prescriptive and non-exhaustive list of factors,[17] he has either fully or largely retained his capacity for work, sleep, mobility, cognitive functioning, capacity for self-care and self-management, performance of household duties, social activities, sex life and enjoyment of life.
[16](2010) 3 VR 1
[17]Ibid [16]
36Having made findings about the impairment consequences for the left-hand injuries, I must compare them with the consequences of other impairments of a hand and other types of physical impairment that may be suffered to other body functions such as the spine, brain, knees, shoulders and so on.[18]
[18]WIRC Act, s325(2)(c); an example of the needed comparison under the equivalent provision of the Accident Compensation Act 1985 in respect of injury to a hand is TTB SMS Pty Ltd v Reading [2020] VSCA 203, [31]
37Making that comparison, I consider that the consequences of the plaintiff’s impairment of his left hand when judged by comparison with other cases in the range of possible impairments or losses are best described as marked. He has suffered injuries to his left hand at a young age and will have permanent impairments from them, but it is an injury to his non-dominant hand, the loss of the function of his left hand is partial, and the consequences of that impairment are limited with much retained. I do not accept the plaintiff’s submissions that they are more than marked or considerable, let alone very considerable.
38I find that the plaintiff has a permanent impairment of his left-hand, but it is not a serious injury within the meaning of sub-paragraph (a) of the definition of serious injury.
Extent of disfigurement
39In determining whether the disfigurement of the plaintiff’s left hand is a “serious permanent disfigurement”:
(a) regard must be had to the physical characteristics of the disfigurement such as the extent, size, location and obviousness of it;[19]
(b) regard should be had to subjective features of a plaintiff that could impact on the seriousness of the disfigurement (for example, age), but no regard can be had to the psychological or psychiatric consequences from the disfigurement;[20]
(c) the disfigurement must be compared with the range of possible disfigurements and judged by comparison as being fairly described as being more than significant or marked and being at least very considerable;[21]
(d) it is common for a court to view the disfigurement;[22] and
(e) it is a value judgment that permits little elaboration.[23]
[19] Baker v Transport Accident Commission (1997) 1 VR 662, 664
[20] WIRC Act, s325(2)(h)
[21] WIRC Act, s325(2)(c)
[22]See, for example: Baker v Transport Accident Commission (1997) 1 VR 662, 664; Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187, [24]
[23]Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187, [24] & [29]; Transport Accident Commission v Garcia [2015] VSCA 225, [13]
40The parties in closing submissions took me to decisions where a court has or has not found a permanent disfigurement to be serious.[24] Insofar as it was submitted that I should seek to identify the disfigurement closest to the plaintiff’s disfigurement and follow the outcome in that decision, I reject that approach. At their highest, the cases are examples of how courts have assessed other disfigurements.
[24]Baker v Transport Accident Commission (1997) 1 VR 662; Ingram v Ingram (1996) 2 VR 435; Kalinic v Acron Engineering Pty Ltd and Victorian WorkCover Authority [2013] VSCA 341; Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187; Transport Accident Commission v Garcia [2015] VSCA 225; Cahun v Victorian WorkCover Authority [2023] VCC 413
41I observed the disfigurement of the plaintiff’s left hand, and note the following:
(a) the plaintiff’s left index finger is about 1 centimetre shorter than his right. This is most evident when he holds the palms of his hands together as if praying; The tip of the index finger looks slightly bulbous, with the fingernail bending over the tip slightly. The tip of the index finger is paler than the tips of his other fingers consistent with scarring from the skin graft. A person who casually interacted with the plaintiff would not necessarily notice the disfigurement of the left index finger, but would likely to do so with time or if the plaintiff was using his left hand;
(b) on the pad of the left palm there was a faint circular scar about the size of a five-cent piece with some smoothing of the skin around this scar. The scaring was not pronounced; a person would likely not notice it without being told to carefully inspect the area for a scar; and
(c) the disfigurement is on a part of the body that is generally visible. Gloves could be worn to conceal it, but it is not generally socially acceptable for men to wear gloves all the time and doing so could cause its own problems.
42The plaintiff has permanent disfigurement of his left hand in the form of the partial amputation of his left index finger and scarring of the tip of the left index finger and the pad of his left palm. The disfigurement is marked, especially given his age and it being on a hand, but I do not consider that it is more than significant or marked, nor that is at least very considerable. I find that the plaintiff has a permanent disfigurement of his left hand, but it is not a serious injury within the meaning of sub-paragraph (b) of the definition of serious injury.
Conclusion
43The plaintiff struck me as a decent young man who has suffered a nasty work injury that has led to permanent impairment and disfigurement. But for the reasons given, he does not meet the statutory threshold of establishing a serious injury, either by way of impairment or disfigurement.
44I ask that the parties seek to agree a costs order. If they cannot agree an order, they should request that the proceeding be listed for hearing of any application about costs.
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