Beattie, Andrew v ABC Body Repairs Pty Ltd

[2010] VCC 106

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-01630

ANDREW BEATTIE	Plaintiff
v
ABC BODY REPAIRS PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	18 and 19 January 2010
DATE OF JUDGMENT:	27January 2010
CASE MAY BE CITED AS:	Beattie, Andrew v ABC Body Repairs Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 0106

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the left wrist – disfigurement - pain and suffering only – whether consequences to the plaintiff are serious.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Carson	Holding Redlich
For the Defendant	Mr A Middleton	Wisewould Mahony Lawyers
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 24 April 2005 (“the said date”).

2          The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.

3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

“(a) permanent serious impairment or loss of a body function.”

4          The plaintiff also brings an application pursuant to clause (b) claiming permanent serious disfigurement.

5          The impairments of body function relied upon in this case are the left wrist and disfigurement thereto.

6          The plaintiff relied upon two affidavits and he was cross-examined. The plaintiff’s wife, Karina Barca, swore an affidavit on 21 November 2009 and she was cross-examined. Further, the plaintiff relied upon an affidavit sworn by his brother in law Brett Coe on 21 November 2009 and an affidavit of Travis Grose, the plaintiff’s current employer, sworn on 2 December 2009. In addition, both parties relied on medical reports and other medical material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence

7          The plaintiff is current aged twenty six, having been born on 2 June 1984. He married in late 2009, having met his wife in 2001 and they presently live in Bundoora.

8          The plaintiff completed Year 12 in 2002 and then commenced a four year apprenticeship as a panel beater with the defendant the following year.

9          As at the said date, the plaintiff’s health was good. He was employed full-time as a third year apprentice in work which was often physically demanding.

10        The plaintiff played Australian Rules football in a reserves grade team with Montmorency in the Diamond Valley League playing as a rover, changing as a forward line player. He had played in that side from the time he left school in 2002.

11        In addition, the plaintiff also enjoyed playing mixed doubles tennis on a weekly basis. He also played golf weekly with friends on public courses. He went snowboarding, went to the gym and jogged for fitness. He also led a busy social and family life.

12        On the said date, in the course of his employment, the plaintiff suffered injury when the blade of his Stanley knife severely lacerated his left wrist and forearm when he attempted to separate a rear bumper bar from the rear quarter panel of a motor vehicle (“the incident”).

13        Immediately after the incident, the plaintiff was conveyed by ambulance to the Royal Melbourne Hospital (“the Hospital”) where he was admitted under the care of Mr Peters, a plastic and reconstructive surgeon.

14        Shortly thereafter, the plaintiff underwent surgery to repair some nerves, tendons and an artery in his left wrist and forearm.

15        The plaintiff was discharged from the Hospital on 27 April 2005 and thereafter underwent hand therapy in the Hospital’s outpatient department. Hand therapy later continued with Karen Stewart of Northern Hand Rehabilitation in Heidelberg. This therapy was often painful and caused the plaintiff a great deal of discomfort.

16        The plaintiff returned to work with the defendant on light duties in early 2006 at which stage he was still undergoing therapy with Ms Stewart. He was then able to resume his full normal duties without any medical restrictions placed upon him.

17        The plaintiff was able to begin driving a manual car a few weeks before he returned to work. Before that time he did not have enough strength in his left lower limb to operate the gears.

18        The plaintiff completed his apprenticeship with the defendant in early 2007 and continued in that employ until June 2007.

19        The plaintiff deposed that after the incident he was treated differently by the defendant. He was treated as “an injured worker” particularly in that he was not given any responsibility in his work.

20        When re-examined, the plaintiff said he left that employ because “he felt like he was getting nowhere.”

21        The plaintiff was offered work as a panel beater by the partners of Bevz Body Repairs (“Bevz”), a business run by former employees of the defendant.

22        The plaintiff continues to work full-time in that job. His present employer makes allowances for the problems he experiences in relation to his injury.

23        The plaintiff deposed that he undertakes his work duties with difficulty and tries to use his left hand as little as possible. As a result he suffers compensatory pain in his right upper limb.

24        The plaintiff has particular difficulty using his left hand in confined spaces, a task he faces quite often in his job. Also because of his injury, the plaintiff does not believe he is as good at his job or as efficient or as fast as he had been before the incident. The plaintiff is concerned that if he lost his current job with an understanding employer, he would have great difficulty finding alternate work.

25        The plaintiff continues to suffer pain and discomfort in his left hand and wrist especially after activity involving the use of his left hand and fingers for a long time. The plaintiff continues to experience numbness in his left little and ring fingers, as well as weakness in his left hand and forearm, in particular, a weakened pinch grip on the left. This is particularly troublesome when he is trying to perform activities requiring fine finger movement. The plaintiff believes his grip strength is significantly weaker on the left compared to his right.

26        In cross-examination the plaintiff described cramping in his hand if working in a confined space. If he moves his hand around, the cramping goes in a relatively short period of time. He agreed he had a fairly reasonable pinch grip and that there was mainly numbness in his ring and little finger. He demonstrated that he was unable to move the fingers of his left hand so they were all touching.

27        Most of the time the plaintiff is tired at the end of a day’s work but his discomfort or tiredness would not be obvious to an observer.

28        In cross-examination, the plaintiff agreed there is no job he is unable to do because of his injury. Further, he works regular overtime.

29        The plaintiff wears a glove at work in the winter because “he struggles with his fingers stiffening”. Once his hand warms up, he is able to work without the glove.

30        On a normal working day, the plaintiff is not in pain at work. It is at the end of the day that his injury starts to affect him, but not every day. He is not in a situation at the end of the day that he is unable to do things with his left hand because of pain or discomfort.

31        In re examination the plaintiff said that his wrist was normally not too bad by the time he went to bed because he “worked on it” by stretching it and rubbing the scar area and the muscle.

32        The plaintiff also continues to have difficulty with heavier jobs around the house and in the garden, especially tasks requiring lifting. Operating vibrating machinery such as a lawnmower causes a significant increase in pain.

33        The plaintiff described recent problems he had when trying to lift a washing machine with another person and also when he lifted a Christmas tree.

34        The plaintiff finds it difficult and embarrassing holding a fork when eating and adopts a stabbing grip rather than being able to use his fork freely.

35        In cross-examination, the plaintiff said there was not really anything that he does not now do for himself that he did prior to the incident. He then described that he previously opened jars with his left hand but now uses his right.

36        The plaintiff’s injury is the only reason he has given up playing football. He has not tried to return to football since the incident. He is too scared that he will hurt his arm. He has tried “kick to kick” a couple of times and does not really go down to watch the football much anymore.

37        When cross-examined about his Facebook page as it appeared when he was aged twenty three, the plaintiff denied that it was true as set out therein that he stopped playing football because he “got hooked on snow boarding.”

38        The plaintiff no longer plays tennis as he now has difficulty with double- handed tennis backhand shots “as the ball does not go where he wants” and he has problems with his ball toss.

39        The plaintiff has played golf about twice a month in recent times. He continues to experience problems with the vibration that goes through the club when he hits the ball.

40        On virtually every occasion, he has not been able to get past nine holes and the pain he suffers after playing can be quite intense. When he did try to play eighteen holes, he “lost count of his score.” He experiences discomfort rather than severe pain when he playing which gets worse when he has stopped.

41        Prior to the incident, the plaintiff very much enjoyed going to the snow and would have described himself as quite an accomplished snowboarder. In contrast, last winter he had to be careful to ensure he did not bump or bang his left hand and he is not able to do very much snowboarding in comparison to what he did before the incident.

42        The plaintiff went to Falls Creek once or twice in the last season and he also went on a snowboarding holiday to Japan for five days. When he went to Japan he spent about seven hours per day on the slopes. He did not use his left hand to do anything whilst snowboarding. He just got on with it and did not sit around and watch. He had problems hanging onto the t bar.

43        In cross-examination the plaintiff said that he could go snow boarding without any problems.

44        The plaintiff took up volleyball in 2009 for exercise. He plays B Grade mixed two ball sand ball - a game played inside on sand with two players per team. He has played about one dozen games. Most times he copes but at times his arm gets sore so he plays on the right side of the court to compensate .

45        In cross-examination, the plaintiff agreed there was a bit of diving involved in playing volleyball and that he coped with playing. He had hurt his left hand sufficient to almost stop playing on one occasion.

46        The plaintiff surfs and goes boogie boarding but he described his ability at both sports as hopeless. He could not recall the last time he had engaged in these activities.

47        The plaintiff currently drives a manual car and he also drove a manual before the incident. On one occasion in 2006 or 2007, when he was still having hand therapy, the plaintiff had problems changing gears and lost control of his vehicle and wrote it off. Since that time his hand has improved.

48        The plaintiff has seen the surveillance video taken on 15 January 2009 of he and his father-in-law doing some gardening in the front of his father-in-law’s house.

49        The plaintiff agreed he was shown pruning bushes with a pair of shears and sweeping up leaf litter. He was wearing gloves, not only to protect his hands in general, but also to stop the jarring effect of the shears on his left hand. The left handed glove also helped him to grip the shears and the broom.

50        The plaintiff explained that the video did not show him performing any fine finger movements of his left hand because he normally leaves those sorts of jobs to others. He prefers to perform only tasks which involve more gross movement of his left hand compared to those which required repetitive use of his left hand and fingers.

51        Although he avoids using his left limb during those activities, the plaintiff still suffers increased pain and discomfort after performing them.

52        The plaintiff recalled suffering increased pain after he engaged in this gardening.

53        In cross-examination the plaintiff showed his scarring. There was a faint scar which went from the middle of his wrist to the side resulting from the knife laceration. There was also a series of surgical scars in a Z shape. None of these scars were prominent or raised.

54        The plaintiff continues to take analgesics from time to time. He most recently took Panadol or Panadeine Forte in January this year. He probably takes this over the counter medication once every two months or so and he does not really like taking tablets.

55        The plaintiff sometimes massages his left arm and at times he receives a massage from his wife.

56        The plaintiff last saw his general practitioner, Dr Ahearn at the Bundoora Medical Centre in relation to his injury in late 2005. The plaintiff ceased hand therapy in early 2007 and has not had any other treatment for his injury since he last saw Mr Peters in late 2006.

Lay evidence

57        The plaintiff’s wife, Karina Barca, swore an affidavit on 21 November 2009 and she was cross-examined. She and the plaintiff met through mutual friends in about 2002 and they commenced going out at that time, marrying on 2 November 2009.

58        Since the incident the plaintiff has experienced almost constant pain of which he complains to her most days. He also has become grumpy and silent.

59        The plaintiff rubs his left arm a lot and his pain is especially bad when the weather is cold.

60        At night when he gets home from work, the plaintiff often asks her to massage his wrist, which she does for about ten minutes, probably three or four times a week.

61        The plaintiff finds it difficult to do small tasks with his left hand. The restriction she most notices is that the plaintiff cannot hold his fork properly and he looks strange when eating. He feels embarrassed about this to the point where he generally avoids taking meals to work which require him to use a fork.

62        As the plaintiff is embarrassed about his wrist, most days he wears a leather band over the scar and tries to cover it up.

63        The plaintiff is a lot less active than he used to be before the incident when he enjoyed football, training twice a week and playing on Saturdays.

64        Since the incident, because he is less active, the plaintiff has put on a noticeable amount of weight in the range of five to ten kilograms. This weight gain has affected his self confidence.

65        The plaintiff’s personality has changed due to his injury and he is not as outgoing. Previously he was not grumpy at all, however, he now gets into quite bad moods and gets frustrated because he cannot do everything he wants. He is quieter than he used to be and socialises less. He no longer socialises at the football club where most of his friends still play.

66        In cross-examination, Ms Barca agreed that she and the plaintiff still go out socially together to friends’ places, out to dinner and to the pub.

67        Brett Coe, the plaintiff’s brother in law, swore an affidavit on 21 November 2009. He has been friends with the plaintiff since approximately 2002.

68        Prior to the incident the plaintiff was an energetic and outgoing person keen on football and tennis.

69        Up until the incident, for about two years, he played tennis with the plaintiff approximately weekly and since the incident he does not recall playing with him at all.

70        Further since the incident, the plaintiff is generally much less active than he used to be. The plaintiff still watches a lot of sport but he finds it very difficult to participate any more and he gets frustrated with his restrictions. Whilst watching friends play football, the plaintiff has mentioned to him he wishes he could still play.

71        Mr Coe went snowboarding with the plaintiff and a group of friends in 2009 at which time the plaintiff took it a lot easier than he used to. Previously the plaintiff would attempt a lot of jumps and go fast down hills, but he is now far more restricted and appeared to be worried about falling. Whilst snowboarding, he noticed the plaintiff’s hand was guarded up the whole time and whilst in the snow, he rubbed his wrist a lot.

72        Mr Coe has become used to the plaintiff complaining about pain. The plaintiff mentions pain a couple of times a day and massages his wrist quite often.

73        Mr Coe confirmed the strange manner in which the plaintiff held his fork and that at times, when he visited the plaintiff at work, he had noticed that the plaintiff held his tools oddly. Also the plaintiff has complained to him about restrictions at work.

74        Travis Grose swore an affidavit on 2 December 2009 and he was cross- examined.

75        Mr Grose is a partner in BEVZ and has employed the plaintiff for the last two and a half years. Mr Grose also worked with the plaintiff whilst he was working with the defendant approximately seven years ago.

76        In his present job, the plaintiff carries out a variety of tasks in the workshop together with paperwork. The plaintiff’s left hand injury restricts him in work in a number of ways. He finds detailed, awkward or finicky tasks with his left hand very difficult.

77        In particular circumstances where the plaintiff is required to put his left hand behind certain panels, he is often required to help the plaintiff and hold certain sections of the panels for him. The plaintiff finds it difficult to tighten nuts and bolts in engine bays where it is a tight squeeze and a bit awkward.

78        The plaintiff is slower with certain tasks because of his injury and he finds it difficult to do work with small parts. To assist the plaintiff, he does a lot of stripping of the cars even though he is trained as a spray painter. He sets up the work for the plaintiff to get things ready and “help speed him up.”

79        In addition, he and his partner do a lot of the heavier work for the plaintiff such as wrapping chains around cars, a task the plaintiff finds difficult. Also work with the slide hammer is done by them as the hammer weighs from ten to thirty kilograms and requires use of both hands. They accommodate the plaintiff because he is a loyal, honest and hardworking employee.

80        The plaintiff is often in pain at work and regularly stops his tasks to rub his hand especially in the cold weather. The plaintiff also puts a brace on his arm for warmth. Even when the weather is warm the plaintiff still requires a break from work every hour or two to rest for five to ten minutes.

81        Due to the plaintiff’s restrictions, Mr Grose considers it would be difficult for him to find work elsewhere at his present level if he should lose his job for economic reasons as other employers would not be as willing to accommodate the plaintiff’s limitations.

82        In cross-examination Mr Grose said that he regarded the plaintiff as capable of doing reasonably good work. He confirmed problems the plaintiff had with lifting panels and using a pop rivet gun and that at times he required assistance.

83        Of recent times, Mr Grose and his partner are out of the shop a lot more doing quotes so they are not there to help the plaintiff as much. That is the reason why an apprentice was employed three months ago to help the plaintiff.

Plaintiff’s Medical Evidence

84        Following the incident, the plaintiff was admitted to the Hospital on the said date under the care of Mr Peters.

85        At operation, a sharp incised wound was found at the left wrist and the ulnar nerve was found to be 100 per cent divided as was the ulnar artery and the flexor carpi ulnaris tendon. The FDP was 80 per cent divided and the FDS of the third and fourth fingers was 100 per cent divided.

86        These structures were repaired surgically and the plaintiff’s hand was immobilised in a splint and he was discharged for hand therapy.

87        Mr Peters noted that the plaintiff showed slow but progressive return of some ulnar nerve function following injury and repair but there was never a 100 per cent return of sensation. He considered in the long term the plaintiff would have some residual sensory and motor dysfunction in his hand.

88        When Mr Peters last saw the plaintiff on 7 December 2006, the plaintiff’s main symptoms were numbness in the left little finger and left ring finger. The plaintiff complained of weakness in the small muscles in the hand and aching and discomfort with prolonged use of his left hand during the course of a full day’s work.

89        Having not seen him since that time, when Mr Peters reported in 2008, he thought the plaintiff’s condition would have stabilised without any further hope of recovery.

90        Mr Peters thought the plaintiff’s capacity for work had been affected by the injury and that the residual numbness and weakness in his left hand caused a degree of aching and discomfort with repeated use during a full day at work.

91        He discussed with the plaintiff that if in the future the plaintiff’s recovery was not satisfactory then there may be indication for further surgery.

92        Mr Felix Behan, a plastic and reconstructive surgeon, examined the plaintiff for medico legal purposes on two occasions, initially in September 2008 and more recently on 21 December 2009.

93        On the first examination, the plaintiff complained of cramping in his left hand and forearm particularly when working in tightly confined spaces. Dexterity was reduced in the left hand particularly when using a “dolly” at work. The function of the small muscles of the hand was quite deficient and the plaintiff had a “woody” feeling in the ulnar side of the hand in the distribution of the ulnar nerve consistent with ulnar nerve loss.

94        Mr Behan described the plaintiff’s scarring related to the surgery as a z- shaped laceration on the ulnar side of the left wrist and forearm.

95        The plaintiff told Mr Behan that he no longer played football although he was formerly a keen player and that he had problems with tennis having used a double handed grip previously. He told him of problems managing the gears in his car and that he had problems domestically and with lifting heavy weights and he had to adjust his work style in handling various instruments.

96        On this examination, Mr Behan noted recovery had been slow with deficiencies in function at motor and sensory levels with proximal forearm spasm and some weakness of the left upper limb.

97        At that stage, Mr Behan thought the indications were that the plaintiff would have a restricted range of motor and sensory recovery.

98        Mr Behan thought the plaintiff had a disability socially, domestically and industrially and that clinically there was only partial recovery of ulnar nerve function at that stage and that perhaps a neurolysis of the ulnar nerve may improve function.

99        When he re-examined the plaintiff, Mr Behan noted ulnar sensation along the ulnar border of the left hand showed evidence of ongoing progression of healing having gone from “woody” to “tingling” although not fully recovered. The altered sensation extended to the tip of the left little finger and the ulnar side of the left ring finger.

100       The power in the plaintiff’s hand was measured equivalent to thirty kilograms on a goniometer but that could not be maintained for any duration and when lifting heavy weights, his hand tended to go into spasm. This caused some difficulty at work particularly given the heavy manual demands of the plaintiff’s trade.

101       The plaintiff told Mr Behan he experienced difficulty putting his gloves on or even putting his left hand into his pocket as his left little finger tended to catch.

102       On examination, Mr Behan noted the plaintiff had difficulty even holding his hand steady for testing, developing pain in the forearm which led him to flinch and withdraw. Mr Behan thought there had been some improvement along the ulnar side of the left ring finger and deep sensation had been retained throughout the left little finger. The median side of the ring finger was normal (supplied by the median nerve).

103       Industrially, Mr Behan noted the plaintiff still experienced difficulties with forearm muscle spasm and inability to maintain power for any sustained period. There was still some evidence of sensory difficulties. However, in Mr Behan’s view, an excellent functional result had been achieved with microsurgical reconstructive surgery. Whilst further significant improvement was unlikely, he thought some further improvement with sensory recovery remained a possibility.

104       Mr Behan commented that there had been further sensory recovery in the ulnar one and a half digits of the hand although sensation was not fully recovered. In his view, no further treatment was required and the plaintiff’s condition had plateaued at that stage.

105       Mr Behan considered that the plaintiff would continue to experience restriction in various activities as a result of pain and muscle spasm including sporting pursuits such as golf.

106       Ms Goodwin, hand therapist, from Melbourne Hand Rehab treated the plaintiff post-operatively about fifty six times between 27 May 2005 and 20 February 2007.

107       Therapy was focussed on protecting the repair sites, increasing range of movement through active and passive exercises, increasing strength, normalising sensation and scar management.

108       At the time of discharge from this treatment, the plaintiff was wearing a Neoprene gauntlet splint to help with the ache in his hand secondary to the cold and he was continuing with a self management program. His strength increased from seven kilograms to fifty two kilograms and his sensation had improved to approximately four centimetres from six centimetres distal palmer crease on the ulnar side.

109       At the time of discharge, the plaintiff was working full-time with the defendant completing most duties. He still had residual deficits from the incident due to the incomplete recovery of his ulnar nerve. These deficits were predominantly loss of sensation and palmer interossei.

110       Professor Marshall, plastic and reconstructive surgeon, first examined the plaintiff on behalf of the defendant on 16 July 2008.

111       On examination, having noted the z-shaped scar of approximately three centimetres in length, Professor Marshall noted there was alteration of sensation and distribution of the ulnar nerve. Two point discrimination was measured at greater than fifteen millimetres. There was also wasting of the muscle supply above the ulnar nerve and wasting of the hypothenar muscle and also of the interossei. The plaintiff had weakness of the lateral movement of his fingers and thumb.

112       Professor Marshall concluded there was a neurological dysfunction which was an incomplete ulnar nerve injury in the lower forearm.

113       In his view, the scarring caused no impact on the plaintiff’s performance of daily living and scar revision was not an option.

114       Professor Marshall considered there was an ulnar nerve palsy below the mid forearm. There was decreased sensitivity without abnormal sensation which appeared with activity.

115       At that stage, Professor Marshall thought surgical treatment was not indicated and that the present scarring could be regarded as final from the point of litigation.

Defendant’s Medical Evidence

116         The plaintiff was re examined by Professor Marshall on 7 February 2009.

117       On examination, the texture of the skin of the little finger was very different from the other fingers of the hand and thumb. Professor Marshall noted the plaintiff clearly avoided using the little finger in his everyday activities. There was weakness of the hypothenar muscle and inability to abduct and adduct the little finger strongly. There was loss of sensation in the distribution of the ulnar nerve.

118       Professor Marshall diagnosed permanent left ulnar nerve palsy at the wrist. He thought the plaintiff was able to continue work as a panel beater but that he needed to avoid certain tasks and also must protect his little finger from injury.

119       Professor Marshall considered the plaintiff’s condition had stabilised and it was unlikely there would be significant improvement and unlikely the plaintiff would be able to increase his range of activity in the future.

Video surveillance

120       The defendant tendered two surveillance videos.

121       There was forty five minutes of film taken of the plaintiff’s activities on 7 January 2010. He was shown in the workshop at Bevz working on a horse float. The plaintiff was also shown on that date attending a shopping mall.

122       There was twenty six minutes of film taken on 15 February 2009. The plaintiff was shown undertaking the gardening activities that he referred to in his affidavit.

123       The level of the plaintiff’s activities shown on video was not inconsistent with his evidence and did not show any particular restriction of left hand movement in either work or domestic activities.

Overview

124       It is not disputed the plaintiff suffered a compensable injury to his left wrist in the incident on the said date.

125       The plaintiff suffered a penetrating injury with 100 per cent division of the left ulnar nerve, ulnar artery and flexor carpi ulnaris tendons, and 80 per cent division of the flexor digitorum superficialis of the third and fourth left digits.

126       Counsel for the defendant relied upon the recent Court of Appeal decisions in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 and Sabo v George Weston Foods [2009] VSCA 242, at para 74.

127       As the Court of Appeal stated in both cases, a determination of serious injury involves a value judgment in which matters of fact, degree and of impression are operative: see also Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187, at 41 .

128       The Court must evaluate the consequences of the particular impairment and then make an objective determination by comparing the consequences with other cases in the range of possible impairments. In addition, the Court must be satisfied that the consequences are more than significant or marked.

129       I found the plaintiff to be a very candid, honest witness. No attack was made on his credit by the defendant who conceded the plaintiff gave his evidence in a refreshingly frank manner.

130       Whilst the plaintiff suffered a very painful injury requiring surgery on his left wrist which resulted in him being off work for over six months, I am not satisfied that any impairment to his left wrist is serious and permanent.

131       The plaintiff is still able to work full-time in his chosen trade as a panel beater. Save for a period of light duties in early 2006, he was able to resume full-time normal duties with the defendant until June 2007 and continues to perform same with Bevz.

132       At that time he was approached by the partners of Bevz who offered work as a panel beater as they considered him capable of doing reasonably good work. Until recently the plaintiff has been the only panel beater at Bevz. Three months ago an apprentice was engaged to help the plaintiff as the partners were spending more time out of the shop with new clients.

133       The plaintiff does a full range of duties and at times requires help with heavy lifting. Sometimes he feels tired at the end of the day but not such that he cannot do other activities.

134       Whilst the need to modify the manner in which he performs some work duties may be a significant consequence, I do not consider that it is a consequence which meets the statutory test.

135       Further whilst the evidence does disclose pain and suffering consequences which are both marked and significant, I am not satisfied such consequences meet the statutory test.

136       The plaintiff sometimes suffers from tiredness at the end of the work day and he experiences some numbness in the ulnar aspect of the left hand in the vicinity of the ring and little fingers. The movement of his fingers is restricted although he can still make a fist and grip objects.

137       He does not however suffer from a continuous substantial level of pain and does not require more than very occasional over the counter medication.

138       The plaintiff has not required hand therapy since early 2007 and he has not been seen by his treating orthopaedic surgeon, Mr Peters, since October 2006. He has not attended his general practitioner in relation to any hand complaint since late 2005.

139       The “only hands on treatment” he receives is self massage which gives him relief after a short time. He receives similar treatment from his wife.

140       Significantly in this case there is no suggestion that the plaintiff will experience any deterioration in the condition of his wrist in the future nor that he may require any further treatment whether surgical or otherwise.

141       I accept that the plaintiff’s injury has affected his sporting life particularly football – a recreational activity which he has not played since the incident.

142       However, the plaintiff is still able to play golf twice a month albeit with some problems with the club vibrating when he hits the ball. Further, he has been able to continue snowboarding activities, a hobby which is quite vigorous, going to Falls Creek last season once or twice and travelling to Japan for five days for a snowboarding holiday. He is still able to jog and go surfing and boogie boarding if he gets the chance. He conceded he could still play tennis but he had been taught to use a double handed backhand which he can no longer use thus the ball does not go where he wants.

143       The plaintiff has taken up volleyball, a game which involves direct impact of the ball on the injured area of his left wrist and on occasion diving outstretched to hit the ball. He has not had difficulty playing about twelve games and on one occasion despite his wrist being sore, he was able to continue playing.

144       The significance of what has been lost which bears upon the seriousness of consequences may be informed to an extent by what is retained- see Dwyer v Calco Timbers Pty Ltd supra at 27.

145       I do not consider that these consequences in relation to the plaintiff’s sporting activities meet the test of seriousness.

146       Socially, as Ms Barca confirmed she and the plaintiff still socialise seeing friends, going to hotels and out for meals.

147       I accept that the plaintiff has difficulty using a fork in the usual manner because of his injury. Further he is restricted to some extent in duties around the house requiring heavy lifting.

148       These domestic problems are not in my view consequences which meet the test of seriousness.

149       Further, in relation to the claim for disfigurement, I am not satisfied the plaintiff has a permanent serious disfigurement resulting from his injury and the surgery in relation thereto.

150       On observation, the scarring is not particularly pronounced or ugly. Whilst his wife deposed to his embarrassment and wearing a strap to cover the affected area, the plaintiff made no mention of this or of any particular concern as to the appearance of his scarring or other problems in relation thereto in his affidavit or viva voce evidence.

151       Taking into account all of the evidence in this case, I am not satisfied that the impairment to the plaintiff’s left wrist or the disfigurement thereto, satisfies the definition of “serious injury” pursuant to s.134AB.

152       Accordingly, I dismiss the plaintiff’s application to bring proceedings for damages for pain and suffering.

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