Assaad v Inox Fabrications Australia Pty Ltd
[2022] VCC 1479
•12 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-02782
| ZANE ASSAAD | Plaintiff |
| v | |
| INOX FABRICATIONS AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 2, and 18 August 2022 | |
DATE OF JUDGMENT: | 12 September 2022 | |
CASE MAY BE CITED AS: | Assaad v Inox Fabrications Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1479 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury ꟷ reliability of plaintiff’s self-reported incapacity ꟷ where self-medication purported to indicate severity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Browne v Dunn (1893) 6 R. 67 (H.L.); Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Plunkett | Callahans Lawyers |
| For the Defendant | Mr T Storey | Lander & Rogers |
HER HONOUR:
1On 24 January 2014, a metal handle fell on Zane Assaad’s hand while he was working as an apprentice steel fabricator for the defendant. Mr Assaad suffered a fracture to the third metacarpal of his right hand. Unfortunately, the fracture was not detected until September 2014, with Mr Assaad suffering ongoing pain and swelling until this time. On 28 November 2014, Mr Assaad underwent an open reduction and fixation surgery, including a bone graft. The bone did not fully unite. Mr Assaad continued to suffer ongoing pain and swelling. On 6 August 2015, Mr Asaad had a second operation to remove the metalware from his right wrist, excise the non-united fragment, and repair his ECRB tendon back to the bone. Mr Assaad has also undergone at least two cortisone injections and many months of hand therapy. Mr Assaad says that none of this treatment has been effective to resolve his pain and other symptoms.
2The sole question[1] for determination in this proceeding is whether, as a result of the fracture to his right third metacarpal on 24 January 2014, Mr Assaad has suffered a permanent serious impairment of his right hand, in the sense that the pain and suffering consequences of the impairment of his right hand may be fairly described as “more than significant or marked” and as being “at least very considerable”.[2]
[1]Although there was some evidence of the impact of his injury on his mental health, Mr Assaad did not contend at the hearing that he had suffered a permanent serious mental or behavioural disturbance or disorder as a result of the fracture to his right hand. Partway through the hearing, he also abandoned any claim to have suffered a serious impairment of his right hand with respect to the loss of earning capacity consequences of his injury.
[2] Section 134AB(38(c) of the Accident Compensation Act 1985 (as amended) (“The Act”)
3Mr Assaad says that he relies not only upon the treatment history outlined above, but also his evidence of ongoing pain, weakness and dysfunction in his right hand and supportive medical opinions. The defendant accepts the treatment history outlined above, but disputes the existence of the ongoing symptoms and consequences relied upon by Mr Assaad.
Mr Assaad’s evidence of the consequences of injury
4Mr Assaad, in his written and oral evidence, painted a picture of extreme incapacity of his right hand.
5In his first affidavit,[3] Mr Assaad said he had a sharp pain in his right hand which was “always there”, as well as “constant” pins and needles.[4] He said he frequently dropped things, as often as three to four times per day.[5] He said he had lost a lot of grip strength and could no longer hold his body weight at the gym when doing chin ups, or perform deadlifts without tying his hand to the bar with straps.[6] He said the pain in his hand affected his sleep, making it difficult to get to sleep, and also leading to him waking in the middle of the night.[7] He said it made it difficult to hold a pen and, as a result, he wrote more slowly, and in a manner which was often illegible to others.[8] He said, when he drove, he relied mostly on his left arm and hand and, in particular, held the steering wheel with his left hand.[9] Even things like brushing his teeth, opening door handles and holding a coffee cup, he said, caused him pain.[10]
[3] Paragraphs [39]-[46]
[4] First affidavit, paragraph [39] at Plaintiff’s Court Book (“PCB”) 11
[5] First affidavit, paragraph [40] at PCB 11
[6] First affidavit paragraph [41] at PCB 11
[7] First affidavit, paragraph [42] at PCB 12
[8] First affidavit, paragraph [43] at PCB 12
[9] First affidavit paragraph [44] at PCB 12
[10] First affidavit paragraph [45] at PCB 12
6In his second affidavit, Mr Assaad said that his pain had, if anything, gotten worse.[11] He said, as a result, he was let go from employment at Mazda. He said he now worked in the family fish-and-chip shop. and made $500 per week, but that he was very limited in his capacity to perform his duties. He made it clear this was not work he would be able to obtain on the open labour market. He said he was unable to hold frying baskets when they were full of food and unable to wrap cooked food in paper. He said, when he tried to do more, he ended up doing it one handed, and so would do a worse job than his co-workers, and take twice as long. He said he took two tablets of Panadeine Forte every second day or so for his pain.
[11] Second affidavit, paragraph [17] at PCB 15; see also Transcript (“T”) 34, Lines (“L”) 1-11
7In his third affidavit, Mr Assaad said he continued to suffer from constant pain and pins and needles. He said he took Panadol and Nurofen most days. In addition, he gave evidence that he took unprescribed OxyContin every second day or so. He said he continued to work for his brother at the fish-and-chip shop and was generally rostered on for four to five five-hour shifts per week. He said he avoided helping with the cooking, as he had trouble using his right hand to lift things, and gave the example of dropping a basket full of deep-fried calamari. He said he continued to regularly drop things and didn’t even notice he had dropped them until they hit the ground. He said he had trouble doing things like cleaning his teeth and cleaning his backside, and had difficulty doing up buttons. He said he had trouble cooking and needed to cut food up with his left hand. He said he was limited to doing light laundry tasks and cleaning his room.
8In oral evidence, Mr Assaad:
(a) agreed that, in November 2019, dropping things with his right hand was a “constant issue” happening on a “regular basis”;[12]
(b) agreed that:
“… if you attempted to lift something heavy with your right hand, chances are you would have dropped it. …You’re dropping light things like phones and coffee cups.
Something heavy would almost be a certainty…”;[13]
[12] T30, L9-13
[13] T30, L26-31
(c) agreed that “[he] avoided driving using [his] right hand at all”;[14]
(d) agreed that “ [his] right hand [in July 2021]… was so weak that [he] could be holding a very light item and it would just come out of [his]right hand”;[15]
(e) agreed that he avoided placing the frying baskets into the deep fryer “at all costs” because they were too heavy;[16]
(f) agreed that even something like wrapping cooked food in paper and twisting the bag was too painful for him;[17]
(g) agreed that these restrictions applied in July 2021 and as at the date of the hearing;[18]
(h) agreed that “the fryer and the cooking area, that’s still just a no-go zone for you”;[19]
(i) said there had been no improvement in his grip strength over the last few years;[20]
(j) stated that “occasionally I would, you know, mistakenly grab it with the … right … and it would fall. And I would remind myself to use the left”;[21] and
(k) confirmed he had difficulty with personal grooming and toileting and said he did it all with his left hand “and it’s hard”.[22]
[14] T33, L7-8
[15] T35, L15-17
[16] T38, L 19-24
[17] T39, L25 ꟷ T40, L5
[18] T40, L16-20
[19] T48, L9-10
[20] T48, L20-22
[21] T32, L11-13
[22] T50, L8
9Mr Assaad’s oral and written evidence of the functional capacities of his right hand stood in marked contrast to evidence of his capacities drawn from other sources. First, there was surveillance footage which spanned dates in 2016, 2020, 2021 and 2022. There is footage from each of these years showing Mr Assaad using his right hand for tasks such as holding a mobile phone, using a keyboard, or lifting a box without apparent restriction. The footage from 2021 is the most detrimental to Mr Assaad’s case. He is seen working in a fish-and-chip shop over several hours on 30 August 2021 and on 25 October 2021. Mr Assaad is seen to use his right hand to lift a basket of food in and out of the fryer on multiple occasions and to shake it and carry it across the kitchen. He is seen to use tongs with his right hand. He is seen to lift two baskets of food at a time, one in his left and one in his right. He is seen to wrap food in a bag and twist the corners using both hands. He is seen typing with his right hand and using his right hand for the EFTPOS machine. He is seen using a basket in his right hand to scoop items out and flipping what appears to be a potato cake in the grill with his right hand. The overall picture provided by the footage taken on these dates is of a person working without apparent restriction in a busy and demanding role, in a fish-and-chip shop, and using his right hand to perform those duties, without apparent hesitation or outward manifestations of pain.
10Second, there is Mr Assaad’s admission, under cross-examination, that he worked at a vape store for “a number of years” after his injury. In cross-examination, Mr Assaad said that he obtained this job on the open labour market (i.e.: in response to a job advertisement). However, there was no mention of his work at the vape store in any of Mr Assaad’s affidavits, despite him dealing expressly with his employment in each affidavit. To the contrary, in each of his affidavits, he referred to his belief that he would not have a job without his brother, and his fear that he would be unable to obtain employment without his brother’s assistance. Mr Assaad said, in cross-examination, he was unable to remember when he started working at the vape store, but admitted working two shifts a week on the weekend in the vape store, in addition to working full-time at Mazda. This is, at the very least, a surprising workload, given the level of incapacity and pain of which he complained. Surveillance footage of Mr Assaad working in the vape store in 2020 showed him using both his left and right hand for tasks, with no sign of any restriction on use of his right hand, or outward manifestations of pain.
11Third, there is the photo of Mr Assaad at a body-building competition, which was posted on his Facebook account on 3 March 2019. In the photo, Mr Assaad demonstrates considerable muscle bulk and definition in his torso and arms. In surveillance footage and other photographs from 2019, and later, Mr Assaad appears to have a high-muscle mass in his upper body. This level of muscle mass is not apparent in photos of Mr Assaad from 2016 and earlier.
12It is a matter of ordinary experience that bulk in muscle of the kind seen in Mr Assaad’s torso and arms in surveillance footage and other photographs, is unlikely to be achieved and maintained without some ongoing and repetitive weight lifting. Notwithstanding this, Mr Assaad maintained, in cross-examination, that he had not bulked up in his upper torso at all since his injury, but had only lost weight. He also claimed that the size of his muscles came from the fact that he had been a “labourer” his “whole life”[23] (although in fact the evidence was that he worked as a labourer for a few years between the ages of seventeen and nineteen). He claimed that he achieved his “weight loss” through cardio alone and that, although he tried to do arm and upper torso exercises, he was not able to do so successfully. He maintained, “I’ve been doing cardio, I’ve been training my legs. And I can’t train my upper body. I have tried, I can’t”.[24] In cross-examination, he would not admit to doing so much as a bicep or tricep curl, bench press, pull-up or dead lift.[25] This was notwithstanding the fact that, in his first affidavit, he swore that he did chin ups or deadlifts with the assistance of a strap which tied his hand to the bar. His evidence in this regard was evasive and unconvincing.
[23] T64, L4-8
[24] T52, L21-23
[25] T75-77
13Finally, photos of Mr Assaad posted on social media in August 2019 show him lifting his fiancée; and in December 2015 with his right hand on the steering wheel of his car.
14There were additional reasons to treat Mr Assaad’s evidence with caution. Mr Assaad’s responses in cross-examination were often evasive and non-responsive. This was particularly so in relation to his evidence of his body-building and his work in the fish-and-chip shop. His explanations for the inconsistencies between his oral and written evidence, and the photographs and surveillance, was unconvincing. There were also marked inconsistencies between his oral evidence and his affidavits. For example, in his third affidavit, he gives quite specific evidence that, although he “aspired to compete in a natural bodybuilding competition one day, this never in fact occurred”.[26] In cross-examination, he admitted that this statement was incorrect. He could not provide any satisfactory explanation for giving this incorrect evidence. He also maintained, in his affidavits and cross-examination, that the fish-and-chip shop at which he worked was owned by his brother. However, he later admitted, under cross-examination, to being a director and shareholder of the company which owned and operated the fish-and-chip shop, although he maintained that this was “for tax purposes and so we could put the money into the house”[27] only. As I have already noted, none of his three affidavits referred to his work at the vape store. His evidence in relation to his complete inability to perform upper-body weights was also at odds with the evidence in his first affidavit that he could perform pull-ups and deadlifts with the assistance of a strap. Finally, he also demonstrated a surprising lack of recall – for example, being unable to even attempt to answer when he commenced work at the vape store, or whether he had travelled overseas to any place other than Lebanon or interstate.
[26] Third affidavit, paragraph [21] at PCB 21
[27] T100, L12-15
15I am conscious that surveillance footage and photographs can only provide evidence of a snapshot in time. Such evidence is not necessarily representative of a person’s ongoing capacities. However, Mr Assaad’s evidence was, not that he suffered an intermittent or highly-variable condition, but one of severe incapacity, with sharp constant pain and pins and needles in his right hand. His evidence was that he lived with the constant threat he would drop, even light items, without realising; and was unable to perform basic self-care tasks with his right hand, such as brushing his teeth and cleaning his backside. This is simply not consistent with the observational evidence described above, which has been obtained from a number of different sources over a variety of years and in different contexts. When this evidence is considered together with Mr Assaad’s presentation under cross-examination, the inconsistencies in his evidence and his asserted lack of recall, I find myself unable to accept Mr Assaad’s evidence as to his symptoms and capacities, as being reliable, or, indeed, credible, in the absence of corroboration from other sources. In particular, I do not accept Mr Assaad’s evidence that he suffers ongoing constant sharp pain and pins and needles in his right hand and loss of grip strength; and is regularly prone to dropping even light objects.
Other objective evidence of consequences of injury
16I turn, then, to consider what, if any, objective evidence there is of the consequences of Mr Assaad’s injury. To a very significant extent, the reliability of the opinions expressed in each of the medical reports tendered in evidence is dependent upon Mr Assaad’s description of his symptoms.[28] Those opinions are significantly undermined by my findings in relation to Mr Assaad’s reliability and credibility. In particular, I do not accept the medical opinions as adding weight to Mr Assaad’s reported symptoms, insofar as they relay Mr Assaad’s reports of pain and weakness, or describe his grip strength or range of movement. All of these matters, it seems to me, are dependent upon the reliability of Mr Assaad’s history and presentation when assessed.[29]
[28] Mobilio v Balliotis [1998] 3 VR 833 at paragraph [39]
[29]As an aside, I do not accept that the rule in Browne v Dunn (1893) 6 R. 67 (H.L.) required counsel for the defendant to specifically put to Mr Assaad that his history or presentation to the medical practitioners was not reliable or credible. It was made abundantly clear in both opening submissions and cross-examination that the reliability and credibility of Mr Assaad’s description of his symptoms, and his presentation, was in issue, and that it was contended by the defendant that Mr Assaad did not suffer any significant restrictions in his right hand – see particularly T127-8.
17However, counsel for Mr Assaad relied upon a number of matters which he submitted constituted objective evidence of the consequences of Mr Assaad’s injury.
18First, there is the fact of the fracture and the requirement for two significant surgeries. This is not disputed. I accept that the requirement for significant surgery (and resultant rehabilitation time) is a relevant factor in the assessment of whether Mr Assaad has a serious injury and whether or not those surgeries are in the past or the future.
19Second, there is the possibility that Mr Assaad will have surgery in the future. In relation to this issue, Mr Assaad gave evidence that his treating hand surgeon, Associate Professor David McCombe, “think[s] I might benefit from further surgery”.[30] In oral evidence, Mr Assaad said that Associate Professor McCombe had actually recommended that he have surgery, both in April 2021 and again in November 2021.[31] This is not consistent with the report of Associate Professor McCombe, dated 28 April 2021, which was tendered in evidence and which raises the possibility of surgery, but falls short of a recommendation for surgery:
“… while removal of the anchor at this point would be feasible, it would require us to overdrill this with implications in terms of the consequent trauma to the base of the metacarpal and while providing the degenerative part of the dorsal carpometacarpal joint may be of some benefit, considering the diffuse nature of his pain and the features that are consistent with a chronic pain syndrome, I am not sure this type of surgery would necessarily produce significant benefit and there would be some risk of aggravating his situation. … .”[32]
[30] Third affidavit, paragraph [6] at PCB 19
[31] T42, L9-11; T44, L4-11
[32] PCB 65
20I do not accept Mr Assaad’s evidence that Associate Professor McCombe had positively recommended surgery. Rather, he raised the possibility, and noted the possible risks and limited likely benefits in a context where, in his view, Mr Assaad’s symptoms were largely attributable to a pain syndrome.[33] Whether surgery would be recommended, would depend upon an assessment of the likely benefits to Mr Assaad in light of those risks. An assessment of those benefits turns upon an acceptance of Mr Assaad’s self-reported symptoms. The person best placed to make that assessment is Mr Assaad, and he has chosen not to have surgery, despite his protestations of severe incapacity. Dr Murray Stapleton, the medico-legal plastic surgeon retained by the plaintiff, stated that it was possible more surgery would be required. Dr Joseph Slesenger, the medico-legal occupational physician retained by the plaintiff, recommended surgery. I take into account the possibility that Mr Assaad may have surgery to his right hand in the future; but do not consider that such surgery is a probability or medically-recommended course, as opposed to a possibility.
[33] Report dated 31 March 2021, PCB 63-64; Report dated 28 April 2021, PCB 65
21Third, there is evidence of degenerative changes in Mr Assaad’s hand. In his report of 31 March 2021, Associate Professor McCombe notes that:
“… [A CT scan with co-registered bone scan] did show there was some increase in bone scan uptake at the base of the third metacarpal consistent with a stress reaction
…
… There is some stress reaction noted at the point of insertion of the metallic anchor and some minor dorsal irregularity of the carpometacarpal joint which may be contributing to a small degree to his ongoing symptoms”[34]
[34] PCB 63
22In his report of 28 April 2021, he states, “[t]here is some degenerative change in the dorsum of this joint”.[35]
[35] PCB 65
23Dr Stapleton’s evidence was that it was:
“… likely that he will develop an osteoarthritis of the metacarpophalangeal joint or of the basal joint of the right metacarpal and, for that, only time will tell … .”[36]
He continued:
“There is evidence that arthritis of his right hand is developing as noted above
…
The wrist joint is likely to deteriorate in the future because of the fracture as described”.[37]
[36]PCB 99
[37] PCB 99
24I accept that there are some degenerative changes in Mr Assaad’s hand, although it is apparent from Associate Professor McCombe’s report, in particular, that the extent of these changes is not such as would explain the extent of Mr Assaad’s current complaints of ongoing symptoms. I also accept that Mr Assaad is at increased risk of developing osteoarthritis in the future. However, there is no specificity or detail provided as to the likely timeline or consequences of the development of any osteoarthritis. I take this factor into account, particularly in light of Mr Assaad’s age, but it is difficult to accord it a great deal of weight without any specific evidence as to the likely impact on Mr Assaad’s right hand symptoms in the future. It is also difficult to assess the gravity of this factor when the relevant doctors start from an assumption (based on his self-described symptoms) that Mr Assaad is already significantly incapacitated.
25Fourth, there is Mr Assaad’s use of pain medication. The first thing to note about this is that Mr Assaad’s use of pain medication is based on subjective self-report and therefore vulnerable to my previous findings in relation to Mr Assaad’s credibility and reliability. In his second affidavit, he reported using Pandeine Forte for his pain, two tablets every second day. This would have required obtaining regular prescriptions from his general practitioner. His answers in cross-examination varied. Initially, he asserted that he filled a prescription at the pharmacist every couple of weeks, or every week.[38] Later, he said that he was not sure how often he obtained a prescription from Dr Reuben Ganasan. Regardless, he agreed that he saw Dr Ganasan very infrequently after the middle of 2021. By the time of his third affidavit, he was not taking any prescription medication. Instead, he said that he was relying upon Panadol and Nurofen, and unprescribed “OxyContin” (oxycodone).
[38] T37, L6-9
26Counsel for Mr Assaad submitted that I should have regard to Mr Assaad’s use of oxycodone as indicative of the seriousness of Mr Assaad’s pain. Mr Assaad’s evidence was that his general practitioner refused to prescribe oxycodone to Mr Assaad, but that he nonetheless sourced it, without prescription, from an unnamed “friend”. Mr Assaad said, in evidence, he took it in the evening because:
“… It makes me extremely drowsy, very – very passive and I just sort of – I just pass out and get a good night’s rest.”[39]
[39]T135, L23-25
27Oxycodone is a highly addictive opiate medication. It may be that Mr Assaad’s use of oxycodone is indicative of Mr Assaad’s level of night-time pain in his right hand. It may also be that it is indicative of opiate addiction. In the absence of any medical evidence, I am unable to conclude that oxycodone is medically indicated; or that its use supports Mr Assaad’s claim to be suffering a serious injury of organic origin.
28Fifth, there is evidence that Mr Assaad has undergone other treatments for his right hand injury, including cortisone injections and hand therapy. This is relevant, although I note that there is no evidence of any such treatment for many years (other than his claim to perform hand exercises).
29Sixth, there is Mr Assaad’s inability to return to his duties as a steel fabricator. Mr Assaad relies only upon the pain and suffering consequences of his injury, not upon his loss of income-earning capacity. I accept that loss of ability to work in a profession may nevertheless be relevant to the question of pain and suffering to where “an area of work which [the plaintiff] had enjoyed ha[s] been closed off to [him]”.[40] There is no evidence that this was the case for Mr Assaad. To the contrary, he remarks in his first affidavit that:
“Although I was employed as an apprentice steel fabricator, I mostly just did steel polishing. … I suspect I was employed as an apprentice rather than a steel polisher as apprentice wages were much lower than those of a steel polisher.”[41]
[40]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [25]; cited in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [15].
[41] First affidavit, paragraph [9] at PCB 6
30In any event, Mr Assaad’s subjective reports of his symptoms and capacities, the credibility and reliability of which are impugned, are the primary means of assessing his inability to work in this profession, or any other profession for which he is suited.
31Finally, counsel for Mr Assaad relied upon the defendant’s assessment of Mr Assaad – conducted in response to Mr Assaad’s claim for impairment benefits – as suffering a combined physical whole person impairment of 14 per cent. In my view, very little can be drawn from this. It is made in relation to a very different statutory test to the one which I am considering, and on the basis of a medical opinion or opinions which were not tendered in evidence. The most that can be said, is that it is evident Mr Assaad has some ongoing physical impairment.
Is this a serious injury?
32To succeed, Mr Assaad must demonstrate that he has suffered an injury which is both permanent and serious. To be serious, the consequences of the injury must be “very considerable”, in the sense that they are “more than significant or marked” when compared to other cases in the range of possible impairments of a body function.
33I have taken into account Mr Assaad’s young age and the fact that he is right-handed. I have taken into account the fact that Mr Assaad has had to undergo two significant hand operations, and associated rehabilitation; multiple cortisone injections and months of hand therapy. I accept that these are serious consequences, although they are all in the past. I have also taken into account the fact that there are demonstrated degenerative changes in Mr Assaad’s hand which are likely to lead to osteoarthritis at some point in the future, although I am unable to make findings as to the likely consequences, timeframe or probability of that osteoarthritis. I have taken into account the fact that Mr Assaad may be limited in his capacity to perform very physical jobs in the future, although there is no evidence that this is a particularly significant consequence for him from a “pain and suffering” perspective, as opposed to a “loss of income earning capacity” perspective.
34However, I do not accept Mr Assaad’s evidence that he suffers sharp, constant pain and pins and needles. I do not accept his evidence that he regularly drops even light items and must always prefer his left hand for tasks. I do not accept his evidence as to the extent to which his inability to use his right hand interferes with his ability to work, engage in exercise such as bodybuilding, perform self-care and housework, handwrite or sleep. I am not satisfied that future surgery is any more than a possibility. I am not satisfied that Mr Assaad’s use of unprescribed oxycodone can be seen as an indicator of his pain levels. Mr Assaad is otherwise now only taking over-the-counter pain medication. I have been unable to find alternative evidence of Mr Assaad’s current symptoms and incapacities which is not reliant in some way upon Mr Assaad’s self-report or presentation, beyond the “small degree” of contribution noted by Associate Professor McCombe. In the absence of other credible evidence, Mr Assaad’s appearance in the surveillance videos and photographs tendered in evidence, provides the best evidence of his capacities. That evidence shows a man who is able to use his right hand without apparent restriction, avoidance or overt demonstration of pain.
35The statutory test requires me to assess the seriousness of the consequences of the injury, rather than the seriousness of the organic injury itself. The burden of proof is upon Mr Assaad. Having considered all of the matters above, I am not satisfied that the consequences of this injury to Mr Assaad are “very considerable”.
36The application is dismissed.
37I will hear from the parties on the question of costs.
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Certificate
I certify that these 14 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 12 September 2022.
Dated: 12/09/22
Cian (Coco) McMahon
Associate to her Honour Judge Tran
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