Allen v Victorian Rail Track
[2020] VCC 903
•26 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05940
| JOHN LESLIE ALLEN | Plaintiff |
| v | |
| VICTORIAN RAIL TRACK | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 June 2020 | |
DATE OF JUDGMENT: | 26 June 2020 | |
CASE MAY BE CITED AS: | Allen v Victorian Rail Track | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 903 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Abdominal injury – surgery creating a 15-centimetre abdominal scar – whether the pain and suffering consequences are “serious” – whether the disfigurement is “serious” – whether the psychological or psychiatric consequences of a physical injury are to be taken into account in assessing disfigurement
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325; Evidence (Miscellaneous Provisions) Act 1958
Cases Cited:Baker v Transport Accident Commission [1997] 1 VR 662; Ingram v Ingram & Anor [1996] 2 VR 435; Transport Accident Commission v Garcia [2015] VSCA 225
Judgment: The plaintiff’s application relevant to pain and suffering consequences is dismissed. The plaintiff has leave to bring a proceeding relevant to the application for disfigurement.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Gold | Adviceline Injury Lawyers |
| For the Defendant | Mr B R McKenzie | Minter Ellison |
HIS HONOUR:
Introduction
1 The plaintiff was employed as a technical officer with the defendant. On 3 August 2017, the plaintiff suffered a significant abdominal injury in the course of lifting batteries weighing 55 kilograms from the back of a truck in order to place them onto a pallet.
2 The plaintiff required surgery to ameliorate the abdominal injury, leaving him with a significant scar running from just below his ribcage to his navel. He submitted that the pain and suffering consequences of the abdominal injury meet the statutory test of seriousness, and in the alternative/additionally, that the disfigurement resulting from the scarring also meets the statutory test of seriousness.
Appearances
3 Ms S Gold of counsel appeared for the plaintiff. Mr B R McKenzie of counsel appeared for the defendant.
4 The parties consented to the trial of the application being conducted by audio-visual link pursuant to the relevant provisions of the Evidence (Miscellaneous Provisions) Act 1958.
Executive summary
5 I am not satisfied that the pain and suffering consequences of the abdominal injury meet the statutory test of seriousness. I am satisfied that the disfigurement resulting from the scarring meets the statutory test of seriousness.
The incident
6 On 3 August 2017, the plaintiff was at the Spotswood store operated by the defendant when an unexpected delivery of backup batteries arrived. The relevant storeman was away, which meant that the responsibility for receiving the delivery fell to the plaintiff.
7 After some discussion with the truck driver, the plaintiff appreciated that he could not use the forklift to unload the batteries, so he proceeded to do so manually. The batteries weighed about 55 kilograms each. He estimates that it was about the thirteenth battery that he lifted when he was met with sudden severe abdominal pain which he described as if something was tearing in his chest.[1]
[1]Plaintiff’s Court Book (“PCB”) 21
The Plaintiff’s treatment
8 After reporting the incident, the plaintiff went home at the end of his shift noticing that he had a large bulge in his lower chest area. When it did not resolve, he saw Dr Dimitrios Kollios, general practitioner, on 7 August 2017. Dr Kollios subsequently provided a report dated 26 November 2018.[2]
[2]PCB 49-50
9 Dr Kollios examined the plaintiff and considered that he had suffered an abdominal diastasis. He advised him to exercise, and he referred him to have an ultrasound. Dr Kollios received advice from the physiotherapist that it was appropriate for the plaintiff to undergo an ultrasound, which was performed on 15 August 2017. It demonstrated an abdominal diastasis. He then referred the plaintiff to Ms Ingra Bringmann, plastic surgeon, for a surgical opinion.[3]
[3]PCB 49-50
10 Ms Bringmann subsequently referred the plaintiff to have a CT scan, which was taken on 28 September 2017. It demonstrated that the plaintiff had suffered a large ventral divarication, also described more generally as a hernia. Ms Bringmann referred the plaintiff to Mr Michael Weymouth, plastic surgeon, who then assumed control of the plaintiff’s surgical treatment.
11 The plaintiff first saw Mr Weymouth on 10 November 2017. He inspected the CT scan and examined the plaintiff. He noted that the plaintiff had a ventral hernia extending from his xiphisternum to his umbilicus, which he considered to be consistent with a traumatic rectus sheath injury and resultant rectus muscle divarication. Subsequently, Mr Weymouth performed a herniorrhaphy using an onlay mesh repair. In his report dated 12 October 2018,[4] he described the surgery and the subsequent complication of the surgery as follows:
“… At the time of surgery it was noted that the rectus sheath was extremely attenuated, and thin as a result of the trauma. It was a difficult repair given the relatively flimsy nature of the tissues involved and unfortunately he suffered a post operative haematoma, which required evacuation and a revisionary operation of the hernia repair. Following this he wore a binder for 6 weeks and was restricted from doing any heavy lifting for approximately 6 months.”
[4]PCB 54-55
12 In addition to providing the report, Mr Weymouth wrote courtesy letters to Dr Kollios dated 1 February 2018,[5] 3 April 2018,[6] 1 June 2018,[7] 2 July 2018,[8] 17 December 2018[9] and 30 May 2019.[10] The aggregate of his report and the courtesy letters outline his follow-up treatment and his considered view of the plaintiff’s progress.
[5]DCB 2
[6]DCB 3
[7]DCB 4
[8]DCB 5
[9]DCB 6
[10]DCB 7
13 At the time Mr Weymouth wrote his report, he was unsure whether the plaintiff’s abdominal wall was stable or was likely to be prone to further injury. He considered that the plaintiff should avoid lifting weights of the degree he was lifting when he was injured because the stretching of the abdominal sheath created a proneness in the plaintiff to suffering a further hernia in the future. He referred to the plaintiff undergoing physiotherapy to build up his core strength. He did not consider that the plaintiff required any further surgical treatment. He considered that the plaintiff should be restricted to lifting weights less than 20 kilograms, possibly using a lifting aid and wearing a supportive brace to avoid hernia recurrence. In relation to recreational activities, he did not consider that playing golf, tennis and similar pursuits would place the plaintiff at increased risk of recurrence of hernia.
14 In his last courtesy letter to Dr Kollios dated 30 May 2019, Mr Weymouth referred to having reviewed the plaintiff on that day. He considered that the plaintiff was making steady gains in his recovery through monthly physiotherapy sessions and working on building up his core strength. He noted that the plaintiff had returned to work with a lifting restriction of 20 kilograms or less. He considered that the restriction on lifting needed to be reinforced for the next “couple of years at least, if not for all time”.
15 Dr Kollios continued treating the plaintiff until the plaintiff returned to his home state of Tasmania on 5 November 2019.[11]
[11]PCB 32
16 In his second report dated 13 May 2020,[12] Dr Kollios noted that the plaintiff did not require any further treatment except to maintain core strength to prevent further injuries through lifting. He also noted that the plaintiff was able to resume his normal duties with that 20-kilogram lifting restriction, and otherwise he did not consider that the plaintiff had any restriction on his ability to undertake domestic, social or recreational pursuits where that lifting restriction was not infringed.
[12]PCB 52-53
17 Since the plaintiff returned to his home state of Tasmania, he has not sought nor obtained any medical treatment for the hernia. He has sought and obtained medical treatment for a different medical condition.[13]
[13]Transcript 31
The medico-legal assessments
18 Dr David Elder, consultant in occupational and environmental medicine, examined the plaintiff on 13 May 2019, and provided a report bearing the same date.[14] He set out a history of the plaintiff’s injury, the surgery he required and other matters relevant to the impairment assessment he was retained to undertake by the relevant insurance agent.
[14]PCB 73-76
19 Dr Elder examined the plaintiff’s abdomen. He did not believe that the plaintiff had suffered a true hernia or divarication but rather a prolapse and attenuation of musculature. On examination, he measured the scar at 10 centimetres in length, with numbness over its entirety. He found a palpable prolapse of the abdominal wall on coughing and sneezing, lifting the plaintiff’s head gently off the couch when lying down and when raising his legs. Otherwise, the balance of his report is devoted to making an impairment assessment.
20 Mr John Anstee, plastic surgeon, was the only medical practitioner requested by either party to undertake an assessment of the plaintiff’s disfigurement on a medico-legal basis. He did so on 27 April 2020 by teleconference. He provided a report dated 29 March 2020.[15]
[15]PCB 56-58. The need for a teleconference assessment occurred because of the social distancing requirements of the COVID-19 pandemic. The defendant did not take any issue with the adequacy of Mr Anstee’s examination of the plaintiff and his report on his findings.
21 Mr Anstee set out the history of the plaintiff’s injury, the surgery he required, and some of the plaintiff’s complaints of pain and interference with activities. On examination, he noted the vertical abdominal scar which measured 150 millimetres vertically and 13 millimetres horizontally. He noted that the scar was slightly darker than the surrounding skin and that there was a contoured defect of up to 4 millimetres, with some tethering of the scar, particularly in its superior part.
22 Mr Anstee’s opinion relevant to the plaintiff’s surgery and his return to function appears to be entirely consistent with the opinion of Mr Weymouth. He added that he doubted that the plaintiff would make a complete recovery physically and that he should always restrict the weights that he lifts. He considered that there would be no further improvement in the scarring with the passage of time. He considered that the plaintiff’s prognosis was good if he took care to restrict the weights that he lifts. He thought the lifting restriction of no more than 10 kilograms was appropriate. In a general comment, he considered that the plaintiff would be adversely affected in his capacity to undertake domestic, social and recreational pursuits. He did not doubt the plaintiff’s complaint of interference with sexual activity and activities like collecting firewood with friends.
Pain and suffering consequences
23 The plaintiff was absent from his work with the defendant for about two months. He returned to work on modified duties on 11 February 2018 with a restriction on lifting. He wore a binder for six weeks and obtained physiotherapy treatment regularly in an endeavour to build up his core strength. He ultimately ceased all treatment because he was told that there was nothing further that could be done which would assist him to any further level of recovery.[16]
[16]PCB 23
24 The plaintiff moved to his home state of Tasmania, taking up residence in Launceston. He was struggling to maintain his work with the defendant and was feeling somewhat depressed while being in Melbourne. It was his hope that a return to his home state to be with family and friends who reside in Tasmania would be of assistance to him.
25 The plaintiff ceased working for the defendant on 4 October 2019. He subsequently obtained employment with Nielsen Television Audience Measurement Australia (“Nielsen”) on a full-time basis working from 8.00am to 4.00pm, presumably five days per week. He successfully applied to Nielsen to transfer his role from the Victorian office to the Tasmanian office. His current work tasks involve installing and maintaining television and audience measurement equipment to obtain television ratings.[17]
[17]PCB 32-33
26 The plaintiff swore three affidavits in which he described the pain and suffering consequences of the impairment of the function of his abdomen.[18] I have summarised those consequences as follows:
[18]PCB 18-26, 31-35 and 36-44
· Some pain occasionally, which worsens if he has engaged in a physically demanding working week.
· Use of over-the-counter medication for pain relief.
· Interference with sexual activity.
· Difficulty climbing up and down ladders and performing a lot of driving and walking.
· Coughing, sneezing, lifting his head slightly when lying on a couch or bed or when raising his legs makes the prolapse of his abdominal wall more visible.
· Proneness to suffering a similar injury related to lifting heavy weights.
· Precluded from playing tennis which he played once every two weeks.
· Precluded from playing golf.
· Difficulty playing cricket with his sons.
· Precluded from going to the gym which he attended once a week.
· Precluded from engaging in tenpin bowling.
· Precluded from going camping because of the difficulty with loading and unloading equipment from his vehicle.
· Precluded from taking his dog to the beach because the dog weighs 25 to 30 kilograms, which means he cannot lift the dog out of his vehicle because she is too heavy.
· Interference with being able to play fetch with his dog, which I presume means throwing an object which his dog will then retrieve.
· Interference with some household chores, for example moving heavy pieces of furniture, and undertaking car maintenance, such as removing tyres, gearboxes and batteries.
· Interference with undertaking house maintenance involving climbing up and down ladders.
· Interference with lawnmowing.
· Interference with sweeping and vacuuming.
· Difficulty reaching around his body to undertake personal care.
· Difficulty pulling on a pair of pants because of a need to hold onto something for support.
· Needing to sit down to put on socks and shoes.
· Sometimes needing the assistance of his wife to help put on his clothes.
· Difficulty getting out of bed in the morning, needing to roll onto his side to place his feet on the ground to push himself up.
· Interference with social contact with friends, resulting in he and his wife going out less and he no longer being the fun-loving and happy person he was before.
· Restrictions on pursuing alternative employment to Nielsen’s.
27 Under cross-examination and re-examination, the plaintiff referred to other aspects of interference with activities which he did not refer to in his affidavits:
· Playing social games of cricket, for example at Christmas, and in particular, having trouble with his over arm action when bowling.[19]
[19]Transcript 19
· Recently removing a clutch from a car he is doing up, needing his sons to do most of the work for him.[20]
[20]Transcript 17
· Loss of the monetary benefits of being on an on-call roster with the defendant when he worked for the defendant.[21]
[21]Transcript 28
· A preference to leave the work he is performing with Nielsen’s and worked for a friend as a truck driver which is work he cannot do because of the physical requirements to do heavy work, such as shovelling and pushing wheelbarrows.[22]
[22]Transcript 13 and 29
· Undertaking simple physical movements, such as reaching into a cupboard. Stretching or pivoting too hard in some way gives him a reminder of the injury, and I assume he meant that he encounters some adverse physical result when he engages in these sorts of activities.[23]
· Considerable frustration when his sons are working on his cars for him because he believes they do not do the things he wants them to do, and he finds it uncomfortable to be on the ground crawling around underneath cars.[24]
[23]Transcript 29
[24]Transcript 30
28 The plaintiff’s wife, Mrs Ruth Allen, swore an affidavit on 15 June 2020 in which she confirmed a number of the complaints made by the plaintiff:[25]
[25]PCB 45-47
· He is not a person who complains.
· She has noticed that he becomes frustrated by his physical restrictions.
· She has observed him to react as if in pain when doing work around the house and in the garden.
· He is not good at asking for help because she thinks he is stubborn, and for example lifting things which are heavier than he should lift, and when that happens, observing him to be in pain for days later.
· She asks others to provide assistance with things that he would ordinarily do, for example mowing the lawns.
· Observing him to have difficulty playing pool.
· Interference with their sexual relationship.
29 Under cross-examination, there were aspects of the plaintiff’s evidence which appeared to me to give a different complexion on the nature and extent of his pain and suffering consequences:
· The physical problems he has in his work with Nielsen’s is not significant, and it is work he has managed without needing any time off. He estimates that he can do that work as well as a fully able and fit person could.[26]
[26]Transcript 11-12
· If the plaintiff had been successful in his application for an alternative job to Nielsen’s with Tasmanian Network, he would be doing that job now even though it involved undertaking a tower climbing course which might cause him some problems with his right knee.[27]
[27]Transcript 12
· The job as a driver working for a friend could be difficult to some degree because of the requirement to undertake shovelling and pushing wheelbarrows because of his right knee, although, under re-examination, he said that his friend indicated he would not employ him because of his abdominal injury.[28]
[28]Transcript 13 and 29
· He played golf about once or twice every six months before the incident, going out to have a bit of a hit.[29]
[29]Transcript 21-22
· He played tennis about every six weeks.[30]
[30]Transcript 22
· He still goes out camping about five or six times a year on weekends, estimating that it occurs about every two months.[31]
[31]Transcript 23
· He engaged in tenpin bowling about once every six months.[32]
[32]Transcript 24
· He walks his dog about two or three times a week. He often takes the dog with him when he goes to work.[33]
[33]Transcript 24-25
· He is able to do some domestic tasks, such as mopping and vacuuming.[34]
· He is still able to catch up with friends and family for barbecues, dinners, parties and is able to attend his church, funerals, christenings and like activities.[35]
[34]Transcript 17
[35]Transcript 19-20
Are the impairment consequences “serious”?
30 The defendant submitted that if an assessment is made between what the plaintiff has lost, that is, the impairment consequences he says have resulted from the impairment of the function of his abdomen against what he has retained, then, when judged by comparison with other cases in the range of possible impairments of a body function, it is difficult to describe it as being “more than significant or marked”, and certainly not reaching the standard of being “at least very considerable”.
31 The defendant principally relied upon the fact that the plaintiff is working and is likely to do so without any difficulty; is not having any medical treatment of any kind for the injury or its consequences; resorts only to the infrequent use of Panadol, and otherwise is still able to engage in a measure of activities which were part of his life prior to the occurrence of the incident. He is able to do some domestic tasks around his home; work on his cars; interact with people at his workplace and with friends and family; is able to go camping, and otherwise when a global view is taken of his life as a whole, he has retained a significant level of functioning and activity inconsistent with his impairment consequences coming within the range of the statutory test of seriousness.
32 The plaintiff submitted that although he is able to function to the extent described by the defendant, what he has lost is very significant. Additionally, it was submitted that the plaintiff is a stoic. Reliance was made of the observations of his wife, Mrs Allen, who has observed him to be in pain when engaging in physical activity, to engage in physical activity beyond what he should engage in, and to be an uncomplaining person. I accept her evidence, and I should add that I accept that the plaintiff is a creditworthy and reliable witness. There was very little of what he said which I do not accept; however, I do not agree that his impairment consequences meet the statutory test of seriousness.
33 The fact that the plaintiff is able to work full time in a job which has physical components, and is able to undertake all of the tasks relevant to that employment without difficulty, is of itself a significant factor weighing against a conclusion that the impairment consequences meet the statutory test of seriousness.
34 There are also many other factors which need to be weighed into account. The plaintiff is not having any medical treatment. That is probably the case, because none can be offered to him which will be effective in improving his current situation; however, the pain he is experiencing is occasional and only requires the occasional use of Panadol. That of itself points to the fact that the plaintiff is coping reasonably well with the pain that he experiences. He has resorted to medical treatment for another medical condition while in Tasmania, but has not seen a general practitioner, or for that matter any other medical practitioner, for any treatment for the injury.
35 The plaintiff undoubtably must avoid heavy lifting of the weights described by Mr Weymouth and Mr Anstee, but notwithstanding their opinions, he is able to engage in a range of activities which are reasonably consistent with what he was able to do prior to the occurrence of the incident.
36 On the domestic front, he is able to perform sweeping, mopping and vacuuming with care. He is able to engage in levels of home maintenance and gardening.
37 On the recreational front, he is able to go camping. He no longer plays tennis, golf or goes bowling, but under cross-examination, I was left with the strong impression that the plaintiff played tennis infrequently. He played golf about twice a year, which hardly puts him in the category of being a golfer, but rather someone who just had a hit, and the same seems to be the case with bowling and social sporting games he engaged in with members of his family, for example over Christmas. He is still able to work on his cars, but he has some difficulty when getting under a car and no doubt doing certain kinds of work on cars. He is still able to go camping and has done so as frequently as he did before he suffered injury.
38 On the personal care front, I accept that he has difficulty with certain movements which may make it more difficult for him to look after his personal care and dress.
39 On the work front, it would appear that the plaintiff has no incapacity relevant to his present employment. He said that he no longer likes the job and would like to take up work with another employer and with a friend as a driver. It was not my impression that he could not take up the other jobs or perform the tasks inherent in them. He failed in his application for one job, and was not offered the job as a driver by his friend because of his friend’s attitude to the plaintiff’s injury, not necessarily because the plaintiff said that he could not do the job.
40 As to his personal relationship with his wife, I accept that their level of intimacy has deteriorated significantly.
41 When the plaintiff’s impairment consequences are judged by a comparison with other cases in the range of possible impairments of a body function, as the case may be, they cannot fairly be described as being “more than significant or marked” and as being “at least very considerable”.
John Berti
42 I should pause at this point to deal with one aspect of the cross-examination of the plaintiff. The defendant relied on the affidavit of Mr John Berti, who was the plaintiff’s direct supervisor from about 29 April 2019 to 4 October 2019.[36]
[36]Defendant’s Court Book (“DCB”) 8-18
43 The purpose served by the content of Mr Berti’s affidavit, or so I assume, is to cast doubt on whether the plaintiff suffered any adverse consequences of the injury just because Mr Berti did not observe the plaintiff to have any restriction in his work or receive any complaint by the plaintiff of having any difficulties with his work. He exhibited the plaintiff’s letter of resignation, making the point that nowhere in the letter did the plaintiff mention any reasons for his resignation and his relocation to the State of Tasmania.
44 I am not one bit persuaded that there is anything in what Mr Berti has deposed to which is capable of changing my view of the plaintiff’s evidence. Indeed, I consider the contents of Mr Berti’s affidavit to be mischievous. I think the plaintiff put his evidence in its proper perspective. He said that Mr Berti was his manager, but was not his direct supervisor, and because of that, he did not know what work the plaintiff performed.[37]
[37]Transcript 6-7
45 I accept the plaintiff’s evidence that Mr Berti was probably not in a position to know what work the plaintiff performed, and therefore, whether he was encountering any difficulties with his work.
46 As far as not informing Mr Berti of his reasons for relocating to the State of Tasmania, I hesitate to put it in such colloquial terms, but I will – so what. The purpose of the letter of resignation was to do no more than inform Mr Berti that the plaintiff intended to resign. It achieved that result.
Disfigurement
47 There is no discernible controversy in the medical evidence relevant to the disfiguring nature of the scarring of the plaintiff’s abdomen and the prolapse evident when the plaintiff coughs or sneezes or lifts his head or raises his legs.
48 At the conclusion of the plaintiff’s evidence-in-chief, I asked him to show me the scarring. The plaintiff removed his shirt and stood front on and then side on, which gave me an excellent view of the scarring and the prolapse in addition to four photographs.[38] The first photograph shows the scar extending from just below the plaintiff’s ribs, down to his navel. The second photograph is much closer up, showing the scar and the scarring and disfigurement of his navel. The third and fourth photographs show the plaintiff lying down. The third photograph was taken from his right-hand side and the fourth photograph was taken from his left side. Both photographs show the prolapse. It looked to me to be a significant bulging, almost along the entire length of the scar.
[38]PCB 41-44
49 I asked the plaintiff to indicate the size of the prolapse or bulging around the scar. He used his finger to circle around the scar. I estimated that he was indicating that the prolapse extended about 3 or 4 centimetres either side of the scar.
50 There are two estimates of the length of the scarring. There is no doubt that the scar begins just under the plaintiff’s ribs and extends down into his navel. Mr Anstee estimated that the scar was 150 millimetres (or 15 centimetres) long and 13 millimetres (1.3 centimetres) wide, in addition to a contoured defect of 4 millimetres. Dr Elder measured the same scarring and considered that the scar was 10 centimetres in length. He did not measure any of the other dimensions of the scarring. I prefer the evidence of Mr Anstee relevant to the length of the scarring and its other dimensions because he measured the scarring using a tape measure. Dr Elder did not describe how he made the estimate of its length; however, it probably matters little, because they measured the same scarring which I have observed both in the photographs and at close range.
51 In the plaintiff’s three affidavits, he described the scarring, the prolapse and their consequences to him. The plaintiff said that he is self-conscious of the scarring. His wife has told him that she does not like the look of it and finds it unattractive and off putting. It has had the consequence of interfering with their sexual intimacy.[39] He describes the scar as being numb, with no sensation evident when he runs his finger over it. He now tends to cover up the scarring whereas previously he would often be bare bodied. In his last affidavit, he described hating the way the scar looks. He then gave a description which I think is very apt, that the scar is “long and ugly, puckered at the top with a divit (sic), and no belly button down the bottom”. He does not like looking at it nor thinking about it, and he sometimes feels like a freak.[40]
[39]PCB 25
[40]Transcript 38-39
52 I was referred to a number of authorities by the defendant, all of which are well-known and often referred to in this context.[41]
[41]Baker v Transport Accident Commission [1997] 1 VR 662 (“Baker”); Ingram v Ingram & Anor [1996] 2 VR 435 (“Ingram”), Transport Accident Commission v Garcia [2015] VSCA 225 (“Garcia”)
53 In Baker,[42] Brooking JA paid regard to the location, size and degree of obviousness of the scarring in determining, on appeal, whether the appellant’s scarring was serious.[43]
[42]ibid
[43]Baker at 664-665, and also Garcia (ibid) at paragraph [23]
54 In Garcia,[44] the Court of Appeal used different language to describe the estimation of the impact of scarring in that appeal as being plainly large, unsightly and in a prominent position. Whichever descriptors are used, they seem to me to be to the same effect and direct me to the objective basis for assessment of the plaintiff’s scarring.
[44]ibid
55 The location of the scarring is in the centre of the plaintiff’s body mass. It is unmistakable when the plaintiff is viewed front on. The scarring is just plainly dreadful. It is long, wide and enters the plaintiff’s navel, which is also disfigured by scarring to the extent that the normal contours of his navel have been completely disrupted and changed in shape. The scarring is appallingly obvious, and would be even at a reasonable distance. Having looked at the photographs and observed the plaintiff when undressed, I think the plaintiff’s description of the scarring and the prolapse as “long and ugly, puckered at the top with a divit (sic), and no belly button down the bottom” is very apt indeed.
56 The authorities I have referred to were all determined pursuant to s93(17)(a) of the Transport Accident Act 1986. In an application under that enactment, it is permissible for a psychological or psychiatric consequence of a relevant injury to be taken into account when assessing seriousness; however, this application has been brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013. Section 325(2)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise. The defendant submitted that it must follow that any emotional reaction on the part of the plaintiff which amounts to a psychological or psychiatric consequence must be ignored when determining whether the scarring constitutes a “permanent serious disfigurement”. That is the approach I propose to take.
57 I also note in Garcia[45] that the trial judge was criticised by the appellant because of the level of detail of consequences that one would expect to see in an application brought under paragraph (a). The Court of Appeal noted that the nature of the consequences of scarring are not likely to be something about which one can dilate at length.[46]
[45]Op cit
[46]At paragraph [30]
58 I do not think there is much more I can say. I think the scarring and the prolapse, when compared with other cases in the range of possible disfigurements, can fairly be described as being “more than significant or marked”, and as being “at least very considerable”.
Orders
59 I will grant the plaintiff leave to commence a proceeding at common law and order that the defendant pay the plaintiff’s costs.
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