Birte v VWA
[2019] VCC 70
•7 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-03171
| ANDREW BIRTE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 January 2019 | |
DATE OF JUDGMENT: | 7 February 2019 | |
CASE MAY BE CITED AS: | Birte v VWA | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 70 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – injury to the right arm and hand – assessing permanent serious impairment and permanent serious disfigurement
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Ingram v Ingram & Anor [1996] 2 VR 435; TAC v Garcia [2015] VSCA 225; Baker v TAC [1997] 1 VR 662; Dwyer v Calco Timbers Pty Ltd [2008] VSCA 260
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors | |||
| For the Plaintiff | Mr J Brett QC with Mr J Valiotis | Arnold Thomas and Becker | |||
| For the Defendant | Mr J Batten | Thomson Geer |
HIS HONOUR:
Introduction
1 Andrew Birte is 24 years of age. On 9 March 2016 he was working as a third year apprentice glazier with the defendant. He was manoeuvring a pane of glass. It slipped. He tried to catch it. In doing so, the glass lacerated his right arm and hand. He underwent surgery to his right arm. He was off work for approximately three months then returned to light duties with the defendant. He thought the work of the defendant was too demanding given his injury. He left the defendant and, in March 2017, commenced employment with another glazing company. He finished his apprenticeship. He remains employed with that company as a glazier. He said the work he performed with the defendant was much heavier and demanding work than he is called on to perform with his current employer. He is troubled, however, about the security of his employment. He and his fellow employees were recently addressed by management with the possibility of redundancies being raised and of the ongoing financial viability of the business.
The claim
2 The plaintiff’s Originating Motion seeks a declaration that he has a serious injury within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) and an order that he be granted leave to commence proceedings for damages for pain and suffering for the injuries sustained in the accident with the defendant.
3 The plaintiff was represented by Mr Brett QC together with Mr Valiotis of counsel and the defendant was represented by Mr J Batten of counsel.
The issues
4 The plaintiff brings his application pursuant to clauses (a) and (b) of the definition of “serious injury” under the Act. I have to determine if the plaintiff has suffered a serious injury, namely:
(a) a permanent serious impairment or loss of a body function impairment or body function; and/or
(b) a permanent serious disfigurement
…
The test
5 The plaintiff bears an overall burden of proof upon the balance of probabilities.
6 In regard to the claim for disfigurement under paragraph (b), the Act requires that seriousness is to be determined by reference to the consequences to the worker of the impairment and/or disfigurement with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments and/or disfigurements and that it may fairly be described as being more than significant or marked and as being at least very considerable. I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from this 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. It is application of this test, as it applies to the claim pursuant to paragraph (b), upon which some point of contention arose between the parties.
Approach to reasons
7 In these reasons I have determined to address first the plaintiff’s paragraph (b) claim and identifying the issue in contest by reference to the defendant’s arguments, followed by the plaintiff’s arguments. Approaching the application in this way, better captures how the hearing unfolded. My reasons then address the paragraph (a) issues.
Assessing a permanent serious disfigurement – the defendant’s submissions as to paragraph (b)
8 Mr Batten submitted that paragraph (b) should not be read in isolation. He submitted that “disfigurement” is to be compared with other injuries that are said to be serious [injury] under paragraphs (a), (c) and (d): Ingram v Ingram.[1] It is difficult to determine the consequences of a disfigurement by way of a scar by judging it in comparison to consequences that are more readily capable of being objectively measured as very considerable or not, as the case may be, in a range of different physical injuries.[2]
[1] [1996] 2 VR 435 per Callaway JA
[2] See Judge Misso in Garcia v Transport Accident Commission [2015] VCC 140
9 Mr Batten submitted that, in order for disfigurement to be determined to be a serious injury, I should disregard the plaintiff’s evidence of how he perceives his scar and any psychological effects on him by way of his response to it. It should, counsel submitted, be judged on its own terms.
10 The Act states that the psychological/psychiatric consequences of a physical injury are only to be taken into account for the purposes of an application pursuant to clause (c). Hence, I am required to consider the consequences to this plaintiff, viewed objectively arising from the injury in a paragraph (b) claim.
11 Mr Batten submitted that when the fact of the plaintiff’s scar is considered by comparison with other cases in the range of possible impairments or losses, that is, by comparison with other body function impairments, disfigurements, mental or behavioural disturbances, then the claim under paragraph (b) should fail. Mr Batten argued that although the plaintiff clearly carries a scar, it does not meet, when judged in comparative terms of the range of possible disfigurements and other impairments, the “very considerable” test.
12 In furtherance of his submissions, Mr Batten observed that Mr Doig, orthopaedic surgeon, related in a report dated 31 May 2018 that in respect of the scar the plaintiff exhibited a passive extension of his fingers, together with some aspect of sensory disturbance. Also, that the plaintiff has returned to many of his physical and sporting activities, adjusted to some extent but not to such an extent as to satisfy the statutory prescription.
The plaintiff’s submissions in support of paragraph (b)
13 Mr Brett’s submissions were directed to the difficulty created by adopting the defendant’s arguments. Mr Brett suggested that, on the dicta of the primary cases, there is to be gleaned a “philosophical question” in discerning the proper ambit to assess the “consequences of a disfigurement.” Mr Brett contended that in almost all conceivable instances the consequences of a disfigurement could not be assessed otherwise than by reference to “embarrassment”. Mr Brett urged me to consider the consequences to the plaintiff of the scar by reference to how the plaintiff perceives it, in addition to the objective assessment of it. Mr Brett further submitted that, in the event that if I was minded to adopt purely an objective test without regard to how the plaintiff has responded to his scar, then I should nonetheless be satisfied that it is a serious permanent disfigurement.
Observation
14 The plaintiff’s scar is 12 centimetres and it appears on the left lower arm and is evident on observance. The scar traverses around the plaintiff’s wrist to the forearm. Evidence is that it will not improve. The skin on the side of the scar is apparently different. On a view taken by me in Court of it, on an unopposed application by the plaintiff, it is evident too, that there is a peculiarity in the motion of the plaintiff’s tendons and wrist consequent to the injury.
15 Mr Brett relied on the decision of the Court of Appeal in TAC v Garcia[3] to support his submission that a psychological consequence of permanent disfigurement may be taken into account when assessing seriousness in a paragraph (b) case. Garcia was decided under the Transport Accident Act 1986 (the TAA Act). Under s93(17)(a) of the TAA Act, seriousness may be measured in part by a mental response to a particular physical impairment. In Garcia, the Court of Appeal said that under s93(17)(b) a plaintiff’s emotional response to the disfigurement can be taken into account in the assessment of pain and suffering consequence of the disfigurement.
[3] [2015] VSCA 225
16 The Court of Appeal in Baker v Transport Accident Commission[4] had occasion to consider the expression “permanent serious disfigurement” in paragraph (b) of the definition of “serious injury” again under the TAA Act. Brooking JA, (with whom Phillips JA agreed) after referring to Humphries v Poljak[5] and the “very considerable” test, directed attention to the scar and the observations made of it and decided it satisfied the test and thus had no occasion to consider whether regard may be had to lay and expert evidence in considering if the disfigurement had been shown to be “serious”.
[4] [1997] 1 VR 662
[5] [1992] 2 VR 129
17 Consequently, I have assessed the plaintiff’s scar by having regard to the objective characteristics of the scar, and my observations of it, but having considered all the evidence before me.[6]
[6] See Judge KL Bourke in Naguib v VWA [2017] VCC 1710 at paragraph [138]
The supportive evidence
18 In support of his application for serious injury the plaintiff made two affidavits dated 20 March 2018 and 15 January 2019. The affidavits addressed much of the plaintiff’s lifestyle before and since the injury. In his first affidavit, the plaintiff deposed that in 2013 he had played football with Noble Park in the Eastern Football League (“EFL”). During that same season, he was promoted to play in the senior side and also received the best and fairest award for the reserves team. In 2014 and 2015, the plaintiff continued to play football at a senior level. In 2016, following his injury, the plaintiff returned to football and played six games with a wrist splint. In 2017, he played eight games in the seniors for Wantirna South. However, he said he could not play for all of the season due to pain and restricted movement. In relation to football, the plaintiff deposed “football meant a lot to me and I loved it”. In addition to his football pursuits, the plaintiff played social tennis and futsal. However, he said that during these sports the extent of pain varied and he often experienced discomfort with his arm.
19 In his second affidavit, the plaintiff confirmed that he had not returned to playing tennis, he did not play football in the 2018 season, or play competitive futsal. He described these as three major sporting interests in which he could no longer participate.
20 The plaintiff also deposed that, prior to his injury in 2016, he attended the gym on a daily basis for cardio and weight training. The plaintiff said he was capable of bench pressing 145 kilograms, but would now bench press 60 kilograms with significant pain. In his second affidavit, the plaintiff said that he continued to attend the gym three times a week, but it was painful when lifting weights or attempting to rotate his wrist. The plaintiff also said that he was 21 years old at the time of his injury and was in “peak physical fitness”. He said he had considered competing in men’s physique competitions. However, he stated that he is no longer in that physical condition.
Employment – impact on his injury
21 As to the plaintiff’s employment, the evidence is that he commenced work with a new employer in March 2017. He described the work as “much lighter” than his employment with the defendant. The plaintiff said he has lost a significant amount of strength in his right arm and also a large degree of grip strength. He said that he continued to require assistance with heavier lifting tasks with his employer. He deposed that his pain and numbness had an adverse impact on his ability to write neatly and to use a caulking gun. The plaintiff said that he did his best to manage his current situation, and when he worked on the tools his hand throbs and swells towards the end of the day. The plaintiff deposed in his second affidavit that over recent months a significant amount of his role had been quoting and estimating.
22 The plaintiff deposed that he has been left with an unattractive scar and deformed right hand by way of scarring and disfigurement. The plaintiff said that the scar was obvious to him and he was reminded of it on a daily basis. He stated that he took much pride in his appearance and that the scar has attracted unwanted attention from others.
23 The plaintiff takes medication for his pain, including Panadeine Forte on most days (three tablets a day). He said he had previously taken Endone, but had ceased using this upon receiving advice regarding its side effects.
24 In addition, the plaintiff relied upon medical reports from Annemarie Marshall, an occupational therapist; Murray Stapleton, a plastic and hand surgeon medico-legal consultant; and Mr Douglas Gardiner, an orthopaedic surgeon.
The summary of the medical evidence
25 In her report dated 12 October 2017, Ms Marshall dealt comprehensively with the plaintiff’s history of injury, interventions arising from the accident and an examination of his social and other activities and the functional aspects of his affected injuries. Ms Marshall wrote that the plaintiff “has satisfactory active range of motion of his fingers and wrist”.
26 The injury the plaintiff suffered was a laceration to his right forearm. The injury affected tendons to the right index finger, the right middle finger, the right ring finger and the right little finger.
27 The plaintiff reported that when he returned to work with the defendant, and although assigned light duties, he found that he was using his left hand more than previously to compensate for his right hand weakness and restricted wrist movement. He experienced pain, weakness and tightness in his right forearm. He had hand therapy in July 2016 as treatment for tendon adhesion, right forearm tightness, scar sensitivity and pain. Although the plaintiff’s current employment has required less heavy lifting, crane work, glazing and supervisory duties, Ms Marshall reported that the plaintiff continued nonetheless to report reduced strength, reduced wrist movement, pain at his forearm scar and in the forearm, wrist tightness, tendon adhesion at the forearm scar, cramping in his hand and forearm and altered sensation in his right ring and right little finger. Although some attention was directed to the potential for surgery to deal with the tendon adhesion, ultimately, it had not been recommended.
28 Ms Marshall reported that, following injury, the plaintiff was restricted in his ability to socialise with friends because a splint which he wore at all times made it impossible for him to drive. He reported, as well, avoiding social events as he was concerned he may cause further injury to his hand. The plaintiff said that he sometimes felt isolated. Photographs posted on the plaintiff’s social media depict the plaintiff in January and April in the company of friends in social settings and, on the face of it, enjoying himself. Another photo of some uncertain date depicts the plaintiff at a gym in company with another man and standing by a set of free weights.
29 Ms Marshall reported a history that prior to his injury the plaintiff had attended the gym seven days a week and that this had been reduced by almost half in consequence. That he also could not participate in the weight program as he had before his injury. She reported on his football, too, and that he had played the game prior to his injury and was anxious about returning to it. Also being able to achieve pre-injury form due to the reduced strength and a fear of causing further pain to his right hand and forearm. The plaintiff had recounted a lack of confidence in tackling or contesting the ball due to a concern of further injury to his right hand. Other sporting activities in which he had previously participated, such as boxing and snowboarding, were now avoided because of his reduced strength, reduced movement and fear of further injury.
30 In relation to his domestic activities, the plaintiff reported to Ms Marshall restrictions in performing gardening tasks when using pieces of equipment such as a weed edger or a lawnmower because of vibrations that exacerbate his right forearm pain. However, the plaintiff told Mr Batten in cross-examination that one responsibility he has at home is to mow the lawns and that the mower is a pull start Honda lawn mower.[7] He said that if asked by his mother to go to the shops he would do so. However, the extent of what that activity involved was not pursued.
[7] Transcript (“T”) 27
31 Ms Marshall reported that the plaintiff covered his arm by wearing long-sleeved clothing, whereas prior to the injury he tended to regularly wear t-shirts and singlets. Although the limited Facebook photos show the plaintiff in short sleeve tops in January and April 2018, they also show him in a long sleeve shirt as well in January. I am not troubled by the photos that reveal the plaintiff in a t-shirt with a few male friends on the limited occasions depicted. I certainly do not regard them as amounting to evidence that undermines the credit of the plaintiff. Mr Batten suggested to the plaintiff, and he agreed,[8] that the photographs are a “fair representation” of the plaintiff “in night‑time gear when you're going out”. The plaintiff said, as regards being depicted in short sleeved t shirts, that that is his dress “Sometimes, and sometimes long‑sleeved T‑shirts”. I do not regard this evidence to the extent it departs from the description made by Ms Marshall in her report as upsetting the plaintiff’s evidence about his sense of self in carrying the scar.
[8] T35
32 The plaintiff estimated to Ms Marshall a visual analogue score of 6.5-7/10 for his subjective pain and he described his pain as a constant dull ache which was more severe at night following a day at work.
33 The plaintiff had been prescribed Endone but is no longer taking it. It seems presently, and for some time, the plaintiff has been managing his pain with Panadeine Forte. The provenance of his obtaining the same was raised by Mr Batten. I accept the plaintiff has recourse to the medication as a means of pain relief.
34 As to the plaintiff’s prognosis, Ms Marshall wrote that he may continue to improve with power and pinch grip strength as well as an active range of motion of the wrist and thumb and that the sensation in his right ring and little finger may also improve over time.
35 Mr Stapleton reported the plaintiff suffered a deep laceration across the flexor surface of his right forearm with significant soft tissue and tendon damage as a result of the laceration. He noted that the plaintiff works without restriction albeit with some discomfort. The plaintiff’s wrist and hand is constantly painful, being worse on a cold morning or if he attempts to push against an open palm. The power of his grip is diminished but he can make a complete fist of his dominant right hand. He remains with a reduced range of right wrist movement.
36 The scar on the flexor surface with his right wrist remains tender. On examination it was noted that there is a transverse scar across the flexor surface of the plaintiff’s right wrist which covers 12 centimetres in length.
37 Mr Stapleton noted that, although the plaintiff had returned to his duties, there is no question that lifting, pushing and pulling are all matters that require his care in the workplace and in social, domestic and recreational activities. Mr Stapleton said the plaintiff’s prognosis had reached maximum medical improvement.
38 Mr Gardiner, in a report dated 14 November 2018, spoke of the accident itself that created severe pain and copious bleeding from an oblique right forearm wound. That at St Vincent’s Hospital on the day of the incident he was the subject of extensive surgical repair including wound excision and washout and repairer to a variety of tendons. There had been a repair of the ulnar artery and release of the ulnar nerve. As a result of adhesions around the scar, the plaintiff underwent a further period of hand therapy in July 2016. Having changed employers, and despite his current employer providing improved conditions, the plaintiff reported that he continued to experience pain in his forearm scar, with altered sensation in his right ring and little fingers. He also described that he felt weaker and less dexterous. He complained of pain at the site of the laceration and weakness in the right hand, such as when he tries to hold a pen and write effectively. In other instances, where he needs to use hand tools requiring dexterity in his fingers, he experiences stiffness in the right wrist restricting the range of activities that previously could be undertaken, and numbness and pins and needles in the right little ring fingers. Mr Gardiner diagnosed traumatic disruption of the soft tissue and right forearm tendons, and that there had been a major traumatic disruption of the significant tendons in the right forearm. Together with laceration of the ulnar artery and an injury to the superficial branch of the ulnar nerve with residual sensory involvement of the ring and little fingers.
39 Mr Gardiner expressed an opinion that the plaintiff will be restricted permanently with regard to various activities requiring significant dexterity and normal sensation.
The defendant’s medical evidence
40 The defendant relied on the opinion of Dr Grahame Doig, orthopaedic surgeon, who, in a report dated 31 May 2018 following a clinical examination of the plaintiff on 28 May 2018, and after relating the non-contentious history of the plaintiff’s injury, wrote that in relation to his current complaints there was a loss of strength in the left hand, with lack of full extension of his digits, with occasional numbness on the ulnar border of his hand. He reported that in relation to his social history, the plaintiff is unable to lift heavy weights with the right arm as before and had been unable to return to football.
41 Clinical examination revealed a laceration/scar which was discoloured purple on the distal flexor aspect of his right forearm with the scar irritable in places. The ulnar nerve was intact with normal sensation. The plaintiff had poor grip strength and was unable to fully extend his forefingers but could be passively extended with discomfort. He had full flexion of the digits and no restriction with respect to his thumb. As to prognosis, he reported that the long term prognosis appeared reasonable but he will have some ongoing weakness with the grip of his right hand.
42 The defendant also referred to the medical report dated 9 November 2017 of Dr Sam Micut from the Hallam Family Practice. There is nothing contentious in it, or which assists me in the findings and conclusions I have reached. The same can be said in relation to the extracts of clinical records of the Hallam Family Practice. They are not probative one way or the other is resolving matters I am called on to determine.
The plaintiff is cross-examined
43 The plaintiff said that despite the recent ructions at work about the future of his employment, he had not begun to look for possible alternative employment. There is nothing odd about that and indeed he may have no need to. He expressed an understandable concern about whether, if the need arises in the future, any subsequent employment would fit his restrictions as relatively favourably as is the present case.
44 The plaintiff’s clinical record disclosed that, although in the years since the accident he had attended for some conditions unrelated to his injury, he had not sought treatment for the injury itself. Although the plaintiff said he would have attended in order to obtain prescriptions. There is not much else to think he would have been able to utilise by attending the doctor. The injury has stabilised, it seems.
45 The plaintiff played nine games of reserves football in 2015, and three games in the seniors. He thought that following the injury in 2016 he may have played in a game in June or July 2016 with the EFL. He thought he had played the last three games of the 2016 season with the seniors. It was put to the plaintiff by Mr Batten that he would not have been selected to play in the seniors if he could not mark the football. He agreed. He accepted that he would not have “got a game” if he could not handle the ball. That is a fair call, but that was then and this is now. On the evidence, the plaintiff’s efforts then are not reflected in the reality of the present or the probable indefinite future.
46 The plaintiff was quizzed about other pursuits post his recovery from the injury and particularly whether he had been camping. He denied he had. He was directed to a video uploaded to his Facebook account to suggest he had been riding up sand dunes and trail bike riding. He said the video was of his brother and he uploaded it onto his Facebook page. I accept that evidence.
The plaintiff’s contentions in support of the grant of leave under paragraph (a)
47 The plaintiff, despite commendably having returned to work initially on light duties, and by October 2016 to full duties, nonetheless is recorded as attending at his doctor inquiring about possible surgical options. The plaintiff was experiencing difficulties meeting the demands of the work of a glazier required by the defendant.
48 The plaintiff is right hand dominant and there is a loss of function and a significant loss of grip strength. The effect of the reduction in these capacities proved to be a matter that informed his decision to seek alternative and less arduous employment within his field as a glazier. The effect on his ability within his career path, in consequence of the injury, to deploy himself as he had been able to do, is a matter to which I have had regard in assessing the consequences of the injury to him.
49 The other aspect of the plaintiff’s life that has very significantly been affected in consequence of the injury is his physical capacity. The plaintiff has exhibited a very evident pride in his application to physical fitness and sport. In almost each of these areas of importance to him, there has been in consequence of the injury, a significant affect. His capacity to weight lifting has been very greatly reduced. His frequency of attendance at the gym has likewise been reduced. In both instances it is because of the limitations imposed by reason of the pain he continues to experience from the injury. He once was a futsal player but, as a result of a self-imposed exile, as it were, because of a concern of placing himself at risk of being grabbed or needing to hit the wall in play thereby hurting his arm further, he no longer plays that sport.
50 Mr Batten submitted that I should bring a degree of common sense to the matter when adjudging the extent that the injury has resulted in consequences that satisfy the test of being “very considerable”. He submitted that in terms of assessing whether the impairment consequences of the plaintiff’s injury are serious, I should consider not only what symptoms exist and what the plaintiff is precluded from doing, but also what limits there are to the plaintiff’s activities. Mr Batten submitted that whilst impairment is not concerned with what has been lost, the significance of what has been lost bears upon the seriousness of consequences that may be informed to an extent by what is retained: Dwyer v Calco Timbers Pty Ltd.[9]
[9] [2008] VSCA 260
51 Mr Batten submitted that on any objective analysis the plaintiff has retained the ability to work and the ability to engage in social activity. Mr Batten contended that true it is the plaintiff cannot work to the extent he did previously, nonetheless, he has found himself capable of accommodating his work and continues to carry out his work.
52 Mr Batten directed me to the report of the Mr Stapleton who, in October 2018, noted that the plaintiff had returned to his duties with the defendant which were unrestricted.
53 Unrestricted though the duties to which the plaintiff returned may be, nonetheless, I accept the plaintiff’s evidence that, by reason of the consequences of the injury, the work duties were more than he could accommodate, which prompted his decision to leave the defendant and to find other employment. That work entails a different suite of demands on him physically and thereby is less consequential to him in terms of his injury.
54 Mr Batten developed his submission that in assessing the matter I would of course have regard to the entirety of the evidence. Even with that being so, I should be satisfied that the injury led to a recalibration of the plaintiff’s assessment of his own abilities to undertake the work that he had been previously doing with the defendant. I should have regard to the fact that the plaintiff is continuing to work simpliciter in his career as a glazier and attending the gym on a regular basis for a 4½ hours each week and undertaking his weight lifting, although to a lesser extent. As to the plaintiff’s evidence of taking Panadeine Forte, which was, but is no longer, prescribed, Mr Batten made the point that the plaintiff has not been prescribed pain medication for a lengthy period of time and had it been necessary to do so, there would be prescriptions to reflect it.
55 Tennis was once a sporting interest pursued by the plaintiff, but the evidence is that his involvement in the sport had fallen away well prior to the injury. Mr Brett did not contest that as a fact.
56 As to another sporting activity, futsal, Mr Batten submitted that despite the plaintiff’s concern in relation to being grabbed and/or in other ways putting his arm at risk in play, I should accept that it is essentially a foot game. It may very well be a foot game, but that is not to eliminate the potential risk the plaintiff described and which I accept as one that it is neither fanciful nor remote.
57 Mr Batten addressed the matter of the plaintiff’s pursuit of his fitness and gym attendances and submitted that the reduction, both in the weights the plaintiff can lift and the reduction in the time he spends at the gym, should not be regarded by me as evidence to satisfy the very considerable test.
58 Mr Batten referred to the plaintiff’s football pursuits. Mr Batten submitted that the plaintiff’s record through 2016 and 2017 is that, despite his injury, he still managed to play at a high level. Also, bearing that in mind, when I consider the range of possible impairments in the context of the totality of the evidence, I should not be satisfied that the plaintiff discharged the necessary proof in respect of the paragraph (a) claim.
Findings
59 I assessed the plaintiff as an honest young man who gave a straightforward and credible account of himself and the effects the accident has had on him.
60 For the reasons I have expressed, I am satisfied that the plaintiff has established that the pain and suffering consequences to him of the right arm injury when judged comparably to other injuries is very considerable. I am satisfied that it is a permanent serious impairment within the meaning of paragraph (a). The activities that are sporting and lifestyle and related to physical fitness and that have been reduced or lost by reason of the accident are keenly felt by the plaintiff. Arguably, in the case of a young man, the loss of the ability to pursue his suite of pursuits to the same extent as before his injury is considerable. To a person whose efforts to obtain and retain peak physical condition is perhaps no greater than the attainment of an “ideal”, a reduction in some ability to pursue the same may be less consequential than to the plaintiff for whom these pursuits were a single aspect of his life’s enjoyment.
61 For the reasons I have expressed, I am also satisfied that the plaintiff has a permanent serious disfigurement, and thereby it follows that I am satisfied that he made good the claim under paragraph (b) for serious injury. I have made this determination by having regard to the objective characteristics of the scar, the observations I made of it, and the plaintiff’s description of it, together with the pain and difficulties associated herewith. There is of course, in my process of decision making, an aspect that represents a value judgement in determining it in the range required of me under the Act.
62 In Ingram at 438 Callaway JA observed in respect of s 93(17)(b) of the TAA Act that:
…it is important not to read para (b) in isolation. ‘Permanent serious disfigurement’ within the intendment of the statute must be such disfigurement as bears comparison with such injuries as serious long term impairment of a body function, severe long term mental illness and loss of an unborn child.
63 Whether the statement in Ingram should be applied in workplace injury proceedings is not a matter I was directly addressed upon by the parties by way of analysis otherwise than by the defendant adopting the statement in Ingram. The words “as the case may be” might be an indication that the requisite comparison of injuries is to be restricted to comparison within the class of injuries relevant to the particular application and not by reference to injuries in other classes. If that is the position in law, then my decision would not have altered as a result.
64 In determining whether a permanent serious disfigurement is a serious injury for this particular plaintiff, I have had regard to its location (it is highly visible and in an area that is prominent) and its size (it is long). In Garcia, the Court of Appeal said that in relation to the very nature of a claim under (b), a set of written reasons would not necessarily dilate upon the matter at length or in detail. In my view, the physical characteristics of the disfigurement is of large scarring. Other matters as I have identified are such that they meet the definition of “serious disfigurement”.
65 The plaintiff is entitled to a serious injury certificate in respect of his injury on the grounds brought.
66 I will hear the parties as to the formal orders required to give effect to my decision.
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