Bellingham v Victorian WorkCover Authority

[2021] VCC 1356

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-01682

BLAKE GRAHAM BELLINGHAM	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Melbourne
DATE OF HEARING:	7 April 2021
DATE OF JUDGMENT:	7 April 2021 (ex tempore)
CASE MAY BE CITED AS:	Bellingham v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2021] VCC 1356

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – permanent serious disfigurement – pain and suffering damages

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s325 and s335

Cases Cited:              Ingram v Ingram & Anor [1996] 2 VR 435; Transport Accident Commission v Garcia [2015] VSCA 225; Naguib v Victorian WorkCover Authority [2017] VCC 1710

Judgment:                  Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Scully	Arnold, Thomas & Becker
For the Defendant	Mr C Miles	Lander & Rogers

HIS HONOUR:

1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), for injuries suffered by the plaintiff in the course of his employment with P & J Raaymakers Nominees Pty Ltd on 24 March 2017. The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.

2The plaintiff brings this application pursuant to clause (b) of the definition of “serious injury”, to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning “permanent serious disfigurement”.

3Originally the plaintiff’s application also included a claim pursuant to clause (c) in relation to psychiatric impairment; however, in opening, counsel for the plaintiff indicated the application related solely to clause (b).  The plaintiff bears an overall burden of proof upon the balance of probabilities.  By ss(c) of the relevant section, the impairment must have consequences in relation to pain and suffering, which, when judged by comparison with other cases, in the range of possible impairments may be fairly described, at the date of hearing, as being “more than significant or marked”, and as being “at least very considerable”.

4I am required to consider the consequences to this particular plaintiff viewed objectively arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.  See Ingram v Ingram & Anor[1] where Callaway J applied these principles to a clause (b) application.

[1][1996] 2 VR 435 at 438

5Although I am attracted to the argument by counsel for the plaintiff that the Parliament’s intention was to have the impairment compared with other disfigurements, I find I am bound to follow the decision of Ingram as cited, but in this case, I do not think it would make any difference in any event.

6Section 325(2)(h) of the Act provides:

“the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.”

7The plaintiff relied upon two affidavits and gave viva voce evidence, during which I viewed his scarring and disfigurement.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all of the tendered material.

The Plaintiff’s evidence 

8The plaintiff is presently aged twenty-three, having been born in March 1998.  On 24 March 2017, in the course of his employment, he swore that he was sanding on a rear targa on a houseboat.  He said he was using a 5-inch grinder with a 1‑millimetre sanding pad with a 40-grit sandpaper attached.  Whilst he was so engaged near a joint in the targa, the sander jammed and kicked back out of his hand and struck him in the left side of his face and neck.

9One of his employer’s sons drove him to the Alexandra District Hospital.  The wound on his face and neck was stitched immediately.  He was given antibiotics and painkilling medication and sent home.  Photographs were tendered in evidence of an unsightly raw wound caused by this incident.

10The plaintiff said that he was suffering constant throbbing pain in his face, and he consulted his general practitioner on 28 March 2017.  He did not believe that a CT scan which was ordered revealed any fractures or soft-tissue damage. 

11Some time later, the plaintiff consulted Mr David Ying, plastic surgeon, who performed surgery to the scar in an attempt to remove scar tissue and improve the appearance of the scar.  He had revision surgery in that regard on 18 April 2018.

12The plaintiff swore in his first affidavit he was now left with a scar around 7 centimetres long, which travels from his left jaw diagonally down into his neck, and a photograph was exhibited to his affidavit showing plainly that description

13Further, as a consequence of the injury, the plaintiff swore that he suffers some pain in the area of the scar when it is cold.  This is a severe ache and sometimes he wakes up during the night with a throbbing pain in his face.  He also notices that his jaw feels like it is grinding or crunching when he chews, and this sometimes hurts.  He further swore that there was an area around the middle of the scar that is completely numb and he has to be careful when performing activities, such as shaving, not to cut himself.

14He gave evidence in his affidavit that prior to the injury, he used to enjoy wakeboarding, and he has not engaged in that activity since.  He said he has lost confidence and is afraid of hurting himself.  He said he also enjoyed riding a motorbike before injury.  However, he has since sold the motorbike as it was not used following the incident.  However, in cross-examination, he was shown at least two photographs of him riding perhaps another motorbike after this injury.

15He swore that his attitude to life has changed a lot since the incident and he is frustrated by things easily and he often finds it hard to be motivated to go to work or to interact with people socially.  He says he is quite vigilant nowadays with respect to safety, to the point that he considers himself “paranoid about it”.  He said he avoids using any power tools or any other tools or implements because he fears of being cut or injured.  However, he has, since the injury, been working on a farm driving a tractor, and it is hard to reconcile his post-injury work activities with a fear of using power tools, but as I said to counsel prior to the adjournment, basically I found the plaintiff to be truthful and tried to give a good account of himself.

16He further swore in his first affidavit that previously he enjoyed going out to the pub with his friends, and most weeks he would go every Thursday, Friday and Saturday nights.  He said that since the injury, he tends not to socialise at all and he is embarrassed about the look of his scar.  However, in cross-examination, photographs were accepted by him showing him at a pub with his friends.  Exhibit 5 shows him consuming alcohol on 4 November 2017 and twice on 12 June 2017.

17Once again, I did not feel that he was deliberately trying to mislead the Court.  However, the factual basis for not socialising and going to the pub with friends is probably not made out to the extent that he had attested.

18Similarly, he says he tries to hide his scar as best he can as he is embarrassed about the look of it and he likes to grow a beard to try to hide the scar.  I accept this at face value, but also note that he had photographs on his Facebook with a beard on many occasions prior to the incident.

19Following the workplace injury, he returned to work with Kon Rural Fencing Supplies.  He worked there for a few months and then worked as a painter and fibreglass installer for his friend on houseboats.  He then worked for another fencing company and afterwards for Glencoe Group as a wall framer, before then getting work with Eildon Cleaning Service.  Given that he held down these basically hands-on occupations, I find, once again, that it is hard to reconcile that with a fear of using any sort of tools. 

20The plaintiff was thereafter employed by Eildon Cleaning Service working as a casual cleaner and he is still intent on going back to trade school and completing units required for his apprenticeship.  I find that this is an honest assessment and shows that any fear he has of using power tools will be overcome by returning to his preferred occupation.

21In his second affidavit, sworn 30 March 2021, he relates to the Court how he has had a new girlfriend, Shannyn, for around a year.  He stated that before he met Shannyn, he was having a lot of trouble psychologically and emotionally due to the scar.  He was suffering from poor confidence, low mood and a lack of energy and motivation.  However, he feels that Shannyn has helped him with his self-confidence and she helps him manage the embarrassment that he feels due to the presence of the scar.  He says if it was not for Shannyn, he believed he would be in a terrible state.

22I note there was no attempt for him to gild the lily by alleging that Shannyn found his scar in any way unattractive.  He swore in his second affidavit that he sees the scar every day and being only twenty-three years of age, he finds that it is particularly upsetting for him and he has found it very difficult for him to come to terms with. 

23Although he is currently unemployed, he had been working on a strawberry farm up until December 2020 but he was let go there, not for any disability but due to a shortage of work.  He is currently looking for more work and focusing on finding farm work or the like.  In his penultimate paragraph of his second affidavit, he says: 

“… I feel that the injury, and the scar on my face, have affected my confidence in public, and my willingness to engage socially with people.  Before I suffered my injury, I would have been going out, attending a pub or seeing my friends, every weekend, but I now tend to avoid social situations and, where possible, I tend to just stay at home.”[2]

[2]Plaintiff’s second affidavit dated 30 March 2021 at paragraph 7, Plaintiff’s Court Book (“PCB” page 19

24Once again, this is seemingly at odds with some of the photographs put to him in cross-examination from Facebook, showing him socialising with friends and riding his motorbike in the snow, et cetera.  Once again, there was no attempt when these matters were put to him, to cover up but they are important in addressing the overall onus of proof.

25Mr David Ying, the treating plastic surgeon, reported on 12 April 2019.[3]   He confirmed the revision surgery performed on 18 October 2018 and, in summing up, he stated: 

“The client suffers from minimal pain and restriction due to his condition.

…

There is a psychological impact relating to his facial appearance, which has been altered by the scar.  The effect has been relatively minor.

…

There should be no significant alteration in his current and future capacity for employment.”[4]

[3]Exhibit B

[4]Exhibit B, PCB 22

26The plaintiff further tendered in evidence a report of consultant psychiatrist, Dr Matthew Tagkalidis, dated 18 June 2020.[5]  He related to Dr Tagkalidis that he was very unhappy with the lopsided appearance of his face post initial surgery and was referred to Dr Ying as stated above.  He said he underwent a revision of the scar procedure on 18 October 2018, which had substantially improved his appearance, and that he had continued to keep a light beard to hide the scar as far as possible, with some ongoing embarrassment about his appearance. 

[5]Exhibit C

27He further said that he had been working for a hay and fencing contractor and continued in this work for four months, before beginning in his current role as a strawberry farm labourer in March 2020.  He said that both of these jobs were run by the same family and that they had offered him free accommodation on the strawberry farm.  He said that his employers had also been extremely supportive, which had made a very substantial difference to his general mood and outlook over the last two to three months.  Once again, I consider that this attempt to work in this capacity at that time during the COVID pandemic speaks positively for the plaintiff himself, especially as I can take judicial notice that getting farm workers in this period was particularly difficult in the face of JobKeeper and I note with admiration that he chose to work in this capacity, rather than rely on that circumstance, although I make no aspersions about people who did rely on JobKeeper during that time.  In any event, his current symptoms, as related to Dr Tagkalidis, are as follows:

“The claimant stated that he currently experiences some ongoing embarrassment about the appearance of his scar and keeps a light beard as a result.  He said that he also has some discomfort in the scar when turning to the left and a ‘clunk’ feeling when eating at times.

He said that he currently feels ‘I’m happy now, I finally found a job I’m happy with,’ and that he was ‘sad until about a month ago’ and would ‘have a bad day every second day’ until then.  He said that he would rate his mood as back to 8 / 10 in the last 3 months (where 0 = severe depression with acute suicidality and 10 = a generally stable and happy mood state) and down at 2 / 10 for the 2 years preceding this.  He said that he is only occasionally tearful and is no longer uncharacteristically irritable.

He said that his ability to cope with external demands has improved substantially of late, but was previously very compromised.  He said that significant previous anxiety has completely settled in the last month. 

He said that he now has good energy levels, motivation and drive, and a normal libido.  He said that he still has patchy concentration with no major forgetfulness.  He said that he now has a good sense of enthusiasm and enjoyment and normal general interest in life.  He said that his confidence and self worth have improved substantially and that he now feels productive. 

He said that his sleep had settled with a normal appetite and stable weight. 

He said that he is now positive about the future, and is setting goals again and that suicidal thinking settled 2 months ago. 

He said he has occasional intrusive images of the incident and has very occasional dreams about the incident, both of which have settled gradually with time.  He said that he is avoidant of ‘gory stuff on tv’ and is more vigilant about potential danger than prior, and startles more readily than prior.”[6]

[6]Exhibit C, PCB 26

28Dr Tagkalidis says: 

“I was satisfied that the claimant did not display any psychotic features. 

He stated that he is currently most occupied about thoughts about his work goals but still some negative stuff.”[7]

[7]Exhibit C, PCB 26

29The claimant gave a further history that –

“… he enjoys the company of people but in small groups and stays in regular contact with 3 good friends and that his brother is his best friend. 

He said that prior to the relevant incident he was ‘enjoying life’ and happy in personality and that this changed substantially post injury but had improved substantially of late. 

…

The claimant stated that he currently sees his general practitioner as needed.”[8] 

[8]Exhibit C, PCB 27

30In cross-examination, Dr Tagkalidis stated he had not seen the plaintiff since the revision surgery.  He also confirmed that he is currently being prescribed no medication.

31As to his mental status examination, Dr Tagkalidis thought that –

“He appeared in good general medical health with an obvious left cheek scar and slight deformity, sat forward comfortably in his chair with no obvious discomfort or agitation and displayed no abnormal movements. 

His eye contact was consistent and engaged and he displayed a partially limited range of facial expressiveness and looked a little subdued in expression with no tearfulness.  He was cooperative and matter of fact in demeanour and developed a modest rapport.

Speech was of normal rate, volume and prosody, spontaneous and fairly basic in expression.  Affect was close to euthymic with only mild depressive elements at a reasonable range, well communicated and congruent with thought content.  Thought form was normal.  Thought stream was normal.  Thought content was primarily occupied with improving his life and some ongoing embarrassment about his facial appearance.   There was no suicidal ideation evident throughout the interview.  Perception included infrequent flashbacks and associated chronic hypervigilance. 

Cognition, whilst not formally tested, was grossly intact as evidenced by normal orientation, short and long term memory recall.”[9]

[9]Exhibit C, PCB 28-29

32In conclusion, Dr Tagkalidis considered: 

“… the claimant is currently suffering from an exacerbation of a pre-existing Adjustment Disorder with Depressed Mood, which was previously severe but has largely abated in the last 2 – 3 months, and from features of traumatisation which have partially abated with [the] passage of time, relevant to the claimed injuries.  … .”[10]   

[10]Exhibit C, PCB 29

33He concluded that: 

“… there were substantial pre-existing psychiatric issues of relevance which had caused the preexisting Adjustment Disorder in relation to bullying at the relevant workplace.  … .”[11] 

[11]Exhibit C, PCB 29

34These preceding issues, according to Dr Tagkalidis, were no longer evident.

35Finally, he suggested: 

“… the claimant’s prognosis is now positive, assuming he is not incarcerated from the pending court case.”[12] 

[12]Exhibit C, PCB 31

36In evidence today, the plaintiff stated he had received a Good Behaviour Bond, which expires in July of this year, and there have been no outstanding issues with respect to same.

37The defendant had the claimant examined by plastic surgeon, Dr Darrell Nam, who reported on 24 July 2019.[13]  He took a consistent history and, of importance, he stated:

“… His only complaint is that the scar becomes sensitive in cold weather and he experiences some discomfort on the left side of his face.  At other times he is not aware of any symptoms but he is conscious of the large linear pink scar on the left side of his jaw and neck.”[14] 

[13]Exhibit 2

[14]Exhibit 2, Defendant’s Court Book (“DCB”) page 7

38On clinical examination, Dr Nam found:

“There was a 9 cm scar on the left side of the worker’s face placed across the lower line of the mandible.  The scar was red, flat and at its maximum width approximately 3 mm.  There was no sign of any scar contracture nor restriction of movement of his face and neck due to the scar.  He had full function of the facial nerve and normal muscle activity around his mouth.”[15]

[15]Exhibit 2, DCB 8

39Finally, he stated:

“The scar features are consistent with the injury and the scar is in a prominent, exposed part of his face and neck and this cannot be disguised or camouflaged.  The scar may be permanently pink.  The loss of pigmentation in the scar tissue has the potential to allow skin breakdown due to ultraviolet exposure over many years during the worker’s lifetime and may require protective sunscreen and use of a hat.  … .”[16] 

[16]Exhibit 2, DCB 9

40In addresses, counsel referred me to two decisions which were of assistance.  One was Transport Accident Commission v Garcia,[17] which was a Court of Appeal decision in which a positive finding of serious injury by his Honour Judge Misso was upheld.  The second decision was one of Naguib v Victorian WorkCover Authority,[18] a decision of her Honour Judge K L Bourke of this Court. 

[17][2015] VSCA 225

[18][2017] VCC 1710

41In the latter decision, her Honour had a view of the plaintiff’s injuries in the witness box, as indeed as I had in this case, along with defence counsel.  Her Honour stated, at paragraph 127 and following:

“127On viewing the plaintiff’s head, my immediate reaction was that the disfigurement is very prominent, being on the top his head.  The ‘dent’ is clearly visible, even from a distance, when the plaintiff is seated. That indentation draws attention to the scarring as Mr Stapleton noted.

128I accept Mr Klug’s view that there was considerable irregularity of the underlying skull and that there was some deformity in the region of the scar. 

129Further, Mr Stapleton described three radiating scars that come from a ‘very depressed centre’.  Of the scars that face backwards, the upper one is 4 centimetres in length, the lower one is 6 centimetres in length and there is a forward projection of another scar of 5 centimetres in length.”

42At paragraph 133, Her Honour stated:

“Although Mr Stapleton mentioned the possibility of revision surgery, he thought the plaintiff’s scar would not deteriorate further and was stable.  He considered the scar has reached maximum medical improvement and should not deteriorate.  He noted that further surgery which would be a reasonable procedure to correct the depression was a matter for the plaintiff and his treaters.  In my view, it is not unreasonable for the plaintiff to choose not to take this course which has first been suggested seven years after the incident.”         

43At paragraphs 116-117, Her Honour stated:

“116Counsel for the defendant relied on my decision in Storto v DJW Management Pty Ltd[19] where I dismissed the plaintiff’s application in circumstances where his leg scar was not readily visible and was routinely covered up by business attire.

117I indicated however, I considered the disfigurement in the present case more serious than the scar in Storto.  The current plaintiff has not just the hockey stick shaped scar but also a hole, a sort of dent in his skull that I thought was very significant.”

[19] [2015] VCC 1759

44And at paragraph 121, Her Honour stated:

“In determining whether a permanent serious disfigurement is a serious injury, regard should be had as to its location, size and degree of obviousness of the scar.”[20]

[footnote in original]

[20]Baker v Transport Accident Commission [1997] 1 VR 662; Transport Accident Commission v Garcia (supra)

45In my view, having viewed the scar in the present case, I find that its effect and its appearance is far less serious than that described by her Honour above. 

46Further, in the case of Transport Accident Commission v Garcia,[21] the Court of Appeal were reviewing a decision of his Honour Judge Misso of this Court.  The relevant evidence cited by the Court of Appeal was as follows:

“In his first affidavit, the respondent described his scarring in the following terms: 

‘I have been left with an obvious keloid scar over the anterior aspect of my left upper arm at approximately the level of the mid shaft of the humerus.   The scar is keloid and very prominent.  It is very sensitive to touch.  It itches from time to time.  I need to be careful not to bump the scar and I try to wear clothing to cover the scar from exposure to sunlight.  I have been told that the scar measures 15 centimetres in length.  It is very red.

I am embarrassed by the scarring.  I consider it very obvious and people often ask or comment about it.’”[22]

[21]Supra

[22]Garcia at paragraph [6]

47I note in the present case, there is no suggestion that people stare or comment at the plaintiff’s scar or indeed, that his supporting girlfriend finds it unsightly in any way.

48In returning to the decision of Garcia, the Court of Appeal stated:

“In his second affidavit, the respondent said: 

‘The scar continues to be tender and sensitive.  It is thick and discoloured.  At times, it can be itchy.  It is also sensitive to heat.  Recently, when I visited my local leisure centre, I attended the steam room but the heat aggravated my scar and caused it to be painful and uncomfortable for some time afterwards.

… .’”[23]

[23]Garcia at paragraph [7]

49I note that the subjective complaints attested to by the plaintiff in that case were accepted as accurate by Mr Stapleton, plastic surgeon, in his reports dated 17 December 2013 and 29 January 2015.

50As a result, Mr Stapleton stated:

“His capacity for employment, domestic, social and leisure activities, ie his activities of daily living, are all affected because of the scarring for reasons stated.”[24]

[24]Garcia at paragraph [8]

51In my view, the matters referred to in the plaintiff’s affidavits and the consequences experienced by him and the matters that he conceded in cross-examination, lead me to the conclusion that the effects for him may be considered significant or marked, but fall short of the very considerable test as required by Parliament, and regrettably, because of the strictures imposed upon me by Parliament, the application must be dismissed.

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