Bourke v Victorian WorkCover Authority
[2024] VCC 1149
•1 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-06700
| GRAHAM BOURKE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 July 2024 | |
DATE OF JUDGMENT: | 1 August 2024 | |
CASE MAY BE CITED AS: | Bourke v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1149 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the non-dominant upper limb – pain and suffering – credibility – Popeye deformity – stoic plaintiff – active lifestyle and employment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325(2)(b), s325(2)(c), s325(2)(h), s325(2)(j) and s335(2)(d)
Cases Cited: Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439; Johns v Oaktech Pty Ltd [2020] VSCA 10; Jarvie v Sideliner Contracting Pty Ltd [2024] VSCA 144; Haden Engineering v McKinnon (2010) 31 VR 1; Annett v VWA [2020] VCC 885; Bennett v Victorian WorkCover Authority [2021] VCC 1863; Hooley v Transport Accident Commission [2019] VCC 150; Hooley v Transport Accident Commission [2019] VSCA 263; Taylor v Victorian WorkCover Authority [2021] VCC 962
Judgment: Leave granted to the plaintiff to issue proceedings for the recovery of pain and suffering damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J McG Moulds KC with Mr L Howe | Arnold Thomas & Becker |
| For the Defendant | Ms A Bannon | Wisewould Mahony |
HER HONOUR:
Introduction
1Mr Graham Bourke, the plaintiff, seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring common law proceedings to recover pain and suffering damages in respect of an injury to his left (non-dominant) upper limb arising out of or in the course of his employment with the East Gippsland Shire Council as an arborist.
2The defendant did not dispute the compensability of the injury.
3The hearing proceeded in the usual way. The plaintiff was the only witness to give oral evidence and be cross-examined. The parties otherwise tendered various reports from their respective court books.
The relevant legal principles
4The legal principles are well known and were not in dispute. The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury”. The plaintiff bears the onus of proving, on the balance of probabilities, the following two criteria:
(i) that the injury is a “serious injury” by reference to the pain and suffering consequences of any impairment or loss of body function, when judged by comparison with other cases in the range of possible impairments or losses of body function;[1] and
(ii) that the pain and suffering consequences, when judged by comparison with other cases, in the range of possible impairments or losses of body function, may be fairly described as being more than significant or marked, and as being at least very considerable.[2]
[1]Section 325(2)(b) of the Act
[2]Section 325(2)(c) of the Act
5In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences of the “injury” for the purposes of sub-paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[3]
(b) must make the assessment of “serious injury” at the time the application is heard;[4] and
(c) bring a value judgement to the assessment whether “an injury” satisfies the narrative test.[5]
[3]Pursuant to s325(2)(h) of the Act
[4]Pursuant to s325(2)(j) of the Act
[5]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues before the Court
6There was only one issue before the Court: whether Mr Bourke had discharged his onus of satisfying the Court that the consequences of his left upper limb injury met the statutory test in relation to “permanent serious disfigurement” and or in relation to “permanent serious impairment or loss of body function”.
7Mr Bourke was ably cross examined, but ultimately the defendant conceded that there were no credit issues and I can readily accept Mr Bourke’s evidence.
8That was a sensible and appropriate concession. My impression of Mr Bourke as a witness was that he was straightforward, made appropriate concessions, even when they might have been against his interest. He appeared to be an honest witness. He did not appear to me to exaggerate or embellish his evidence, or to underscore his pain and suffering consequences.
9I was persuaded by his Senior Counsel that Mr Bourke was a stoic person. This was apparent from the way he gave his evidence.
Background
10Mr Bourke was born in 1957 and is currently 66 years of age. He has been a tree surgeon for the last 30 years. He is a fit man, who regularly does exercise at home including push-ups, body weight exercises, weights and boxing.[6]
[6]Plaintiff’s Court Book (“PCB”) 14 and 19
11On 4 February 2021, Mr Bourke was working at the top of a cherry picker and cutting down a tree branch. He was supporting the branch with his left arm while cutting the branch with his right. His workmate was controlling the cherry picker. As Mr Bourke was cutting the branch, it fell and wrenched his arm.
12On the day of the injury, Mr Bourke attended his general practitioner, Dr Tadrous. He was struggling to use his arm and had developed a large bulge in the biceps muscle.
13Mr Bourke was off work for approximately five weeks and returned to work performing lighter duties. He eventually returned to his pre-injury supervisor role; however, he has been unable to return to performing the physical aspects of that role which he descried as being “on the tools”.
Treating medical practitioners
Dr Mina Tadrous, general practitioner
14Mr Bourke attended Dr Tadrous on the day of the incident. He was referred for an ultrasound of the left upper arm. Dr Tadrous considered the ultrasound and diagnosed sustained rupture of the proximal longhead of biceps tendon with retraction of the muscle belly.[7]
[7]PCB 33 and 35
15Dr Tadrous referred Mr Bourke to Professor Eugene Ek, orthopaedic surgeon. The letter of referral requests assessment or Mr Bourke’s suitability for surgery, given his age and the nature of his work.[8]
[8]PCB 42
16On 21 June 2024, Dr Tadrous reported that Mr Bourke does not require any further treatment or investigations and he will need to continue with home-based exercises. Mr Bourke had noticed some weakness in the left upper limb as a result of the injury, and pain after repetitive activity. In particular, Mr Bourke had noticed that he gets pain after just the basic house duties and garden work and can no longer lift the weights he used to. He was using his right upper limb more to support these activities. Although Mr Bourke is still working, he finds it painful after using chainsaws and lifting heavy objects.[9]
[9]PCB 33
Professor Eugene Ek, orthopaedic surgeon
17On 28 May 2023, Professor Ek reported that he had consulted with Mr Bourke once only, on 9 March 2021, in the context of a longhead of biceps rupture while at work as an arborist in early 2021.
18Professor Ek described it as a “Popeye deformity” of the left biceps; however, he reported that Mr Bourke otherwise had a full range of motion in his left shoulder with normal rotator cuff strength and no impingement signs. In terms of strength, Mr Bourke demonstrated well-preserved strength in the left biceps.
19Professor Ek reported that he had recommended potential reconstruction of the longhead of biceps tendon with an allograft tendon to restore some strength (if present) and also to improve the cosmetic appearance of the biceps muscle. Professor Ek considered that Mr Bourke was unlikely to experience any effect on his social, recreational and domestic activities as a result of the injury.[10]
[10]PCB 29
Mr Philip Sheard, orthopaedic surgeon (medico-legal)
20On 27 May 2024, Mr Sheard reported to Mr Bourke’s solicitor. The history noted by Mr Sheard includes the circumstances of the injury, and the pos-injury treatment which included one consultation with a Melbourne specialist, and one session of physiotherapy. No other treatment has been provided to Mr Bourke.
21Mr Bourke is noted to have reported:
“… his left arm is … pain-free until he works with it. … his left biceps feels like it is going to ‘pop’ and his arm feels weaker. … [Mr Bourke] feels it slowed him down both in terms of using gym weights and push-ups and while at work. He also does less on the ‘tools’. He gets occasional shoulder soreness with the biceps pain.”[11]
[11] PCB 25
22Mr Sheard reported on the effects of the injury on Mr Bourke’s social activities. Domestic tasks were largely unaffected but physical work such as digging in the garden, gathering firewood and heavy manual handling, brought on the pain.[12]
[12]Defendant’s Amended Court Book (“DCB”) 25
23Mr Sheard also diagnosed a Popeye deformity of the left biceps. Mr Bourke had a full range of movement in the left shoulder and left elbow. The rotator cuff was intact. Supination and flexion power of the elbow were still 5/5.
24Mr Sheard’s opinion was that Mr Bourke is asymptomatic most of the time but has a popping-type pain with heavy use and he feels he has decreased strength. The injury sustained was consistent with the accident described. The prognosis was good and there was no suggestion that Mr Bourke required any future medical treatment.[13]
[13]DCB 26
Mr Ash Chehata, orthopaedic surgeon (defendant medico-legal)
25On 26 October 2023, Mr Chehata reported to the defendant’s solicitor. Mr Chehata agreed with the diagnosis of longhead of biceps rupture, and noted that Mr Bourke was relatively pain-free and not on any medications.
26The current function described by Mr Bourke was some very mild aching and pain in the left bicep tendon, but Mr Bourke had essentially been able to continue utilising his left arm in a normal fashion and he had a full range of movement. When lifting heavy objects or used a chainsaw, Mr Bourke avoided using the left arm but he was not on any painkilling or other medication.
27Mr Bourke’s social or occupational activities had not decreased and he had been able to return to work. The predominant issue was the deformity at the level of the arm which was described as a classic Popeye deformity with bunching of the proximal muscle belly which Mr Chehata accepted appeared abnormal.
The Plaintiff’s evidence
Affidavits
28In his first affidavit,[14] Mr Bourke described the consequences of his left arm injury as follows:
(a) the left arm lacks strength and endurance and he cannot rely on it;
(b) he is now significantly compromised in training. Push-ups or any movement that requires force to be exerted by the left arm is now either very difficult or impossible. He now just does some light training at home;
(c) if he puts his left arm under too much pressure, it feels like his bicep is about to pop or explode for example, lifting, pushing a lawnmower and certain exercises;
(d) he goes out on his boat much less as it is hard to launch the boat with a left arm that does not work properly;
(e) using the lawnmower is painful and he now has a self-driven mower. He tries to do things right handed where he can and work slowly and carefully;
(f) he does experience pain which can flare up to a significant level. This happens several times a day and he has made the decision to simply push through the pain rather than take significant doses of painkillers on an ongoing basis;[15] and
(g) he is now approaching his retirement years with a significant injury and an obvious deformity of the left upper arm which he is self-conscious about.
[14]Sworn on 31 August 2023: PCB 10
[15]PCB 14-15
29In his second affidavit,[16] Mr Bourke described that there had been little change to his left arm and bicep pain since swearing his first affidavit. In particular, Mr Bourke deposed as follows:
[16]Sworn on 29 July 2024: PCB 16
(a) at rest, the pain is towards the lower end and as soon as he uses his left arm, the pain flares up significantly;
(b) he experiences flare ups multiple times throughout the day and the pain feels like tightness, as if the bicep is going to pop or explode;
(c) he takes Panadol in the evening at least a few times a week to take the edge off the pain. Sometimes he uses Voltaren cream at night when the pain is particularly bad;
(d) he has weakness in his left arm, and can lift approximately half with that arm compared to the right. He tries to limit use of the left arm due to pain;
(e) he often wakes at night with left arm pain and gets up to take Panadol to ease it;
(f) although at the time of injury he worked as a supervisor, he frequently spent a large portion of his day “on the tools”. He particularly enjoyed this aspect of the work and being outdoors. Since the injury, he spends most of his time performing the supervisory aspects of his role but is unable to work in an unrestricted manner because of pain;
(g) using a chainsaw and chopping wood are difficult for him. Although he still chops firewood for his fireplace at home, he is restricted in this task and only looks for smaller branches that are easier to handle and cut. He his frustrated because the smaller wood burns faster than the larger logs;
(h) after his injury, he has been unable to continue his previous training at home as he had been advised it was not good for his bicep. Although he still does some body weight exercises and push-ups, these are more limited now;
(i) he has had to downsize his boat to a smaller and easier to handle one. This affects the type of fishing he can do and he now goes out much less;
(j) when fishing on his son’s boat, he has had to pass his rod over to his son because of the weakness in his left arm making it difficult to reel in the larger fish. He is frustrated that he cannot go fishing like he used to and had been looking forward to spending his days fishing in his retirement;
(k) he has difficulty using power tools such as hedge trimmers; and
(l) he is self-conscious about the appearance of his bicep.[17]
[17]DCB 18-20
Cross-examination
30Mr Bourke was cross-examined about his medication use. He told the Court that since his injury in 2001, he has been taking Panadol painkilling medication, as required, continuously over the past three or four years.[18] He explained to the Court that “as required” meant multiple times a week, when the pain flares up from using the arm excessively, or at night.
[18]Transcript (“T”) 16-17
31Mr Bourke described the severity of the pain as mild on some occasions and on other occasions, “a lot more than mild”.[19] At rest, Mr Bourke said there was “bugger all pain”. He accepted as accurate the history recorded by Dr Sheard, that the left arm is “fine and pain-free until he works with it”.[20]
[19]T16
[20]T17
32A number of questions were asked of Mr Bourke about co-existing conditions such as gout and a heart condition. Various records of his treating doctor were put to Mr Bourke. He readily accepted the contents of those records but maintained he had not suffered from gout for quite some time.[21]
[21]T20
33Mr Bourke conceded that at times, the gout affected multiple joints and body parts, but did not accept that the gout affected his mobility, ability to exercise, or is left upper limb to any significant degree. The gout was well-controlled with medication and he only suffers occasional flare-ups.[22] In particular, Mr Bourke said the gout had not caused him to have any time off work. He agreed, if he was having a bad episode of gout, this might affect his ability to work, train, go fishing or chop firewood.[23]
[22]T23-25
[23]T31
34Mr Bourke told the Court that following his injury, he had five weeks off work, returned on modified duties for approximately one month and now he is able to perform his job without restrictions. However, Mr Bourke said that he performs a lot less work “on the tools”. From time to time, he might work in the office, perform tree inspections or supervise other workers who report to him.[24]
[24]Ibid
35Mr Bourke was asked whether it was inevitable that as he aged he would be doing less work “on the tools” in his role. He did not accept this characterisation. He said he felt quite good before the accident took place and it was never going to be the case that with age he would be working less “on the tools”. Although he had been a supervisor since 2015, he had performed a lot of physical work in that role.[25] It is noteworthy that he injured his left upper limb when performing such physical work.
[25]T34
36Mr Bourke accepted that he had little difficulty with domestic tasks because his partner performed the vast bulk of those. He performed physical work outside the house. He told the Court he did struggle with that and had to modify the work that he does with his hedge trimmer and build in frequent breaks. He is unable to chop large pieces of timber for his domestic fireplace. Although he still chops wood, it is smaller pieces and he finds this frustrating and expensive.
37Mr Bourke is a keen fisherman. His ambition on retirement is to fish. He told the Court that he has had to sell his boat and purchase a smaller one due to difficulty with launching and retrieving it, on account of the injury.[26] He is able to manage the smaller boat by himself and on occasion, he has help from others.
[26]T36
38The injury has had a significant impact on Mr Bourke’s daily exercise regimen. He told the Court that prior to the injury, he was able to exercise daily, perform 100 push-ups and other body weight exercises. Following the injury, he has been unable to return to the same level of exercise. He is now performing exercise three days a week with about 60 push-ups during each session. He no longer uses free weights.[27]
[27]T38
The significance of the Plaintiff’s credit
39In an application such as this, the credit of the plaintiff is often of great importance, both directly and indirectly.
40The opinions of medical witnesses and other experts depend upon what they have been told by a plaintiff and upon his behaviour and performance on examination and on testing.[28]
[28]Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439 at 448 per Brooking JA; Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
41Credit is also important, because the Court must be satisfied of the alleged consequences and their impact on the plaintiff’s residual capacity.
42In this case, Mr Bourke’s credit was not challenged. I have therefore accepted the pain and suffering consequences that he attributes to his injury.
Issues and submissions
Defendant’s submissions
43The defendant submitted that:
(a) Mr Bourke has had limited treatment;
(b) Mr Bourke’s general practitioner, Dr Tadrous, describes limited consequences of the left upper limb injury;
(c) Professor Ek considered that the injury was unlikely to affect any social, recreational and domestic activities;
(d) Mr Sheard describes Mr Bourke as being asymptomatic most of the time but having a popping type pain with heavy use, and decreased strength. The prognosis was good and no further medical treatment was required;
(e) Mr Chehata reported that Mr Bourke was relatively pain-free, he was not on any medications, and he was still performing many of the activities he had prior to the injury including push-ups;
(f) Mr Chehata accepted that the injury had an abnormal appearance but for a 67-year-old tattooed man, the consequences did not meet the test;
(g) Ultimately, Mr Bourke’s consequences of pain were only mild and connected with activity, and he was taking over-the-counter medication. There was no real interference with his work. Any sleep disturbance was mild, perhaps once a week. All of the work and leisure limitations were very limited and affected the non-dominant arm. They were not supported by lay affidavits; and
(h) The disfigurement does not meet the statutory test.
Plaintiff’s submissions
44It was submitted on behalf of the plaintiff that:
(a) the disfigurement is unsightly, and for a man who is slim, much more noticeable;
(b) there has been very little medical treatment, because none has been recommended. This is not a case where the plaintiff has failed to comply with treatment recommendations. Professor Ek, in particular, told him if he was not going to take up the surgery, the only other option would be to leave it as it is. Mr Bourke has refused to have the surgery because no guarantee of a successful outcome was provided;
(c) Mr Bourke is stoic. He should not be treated less favourably than a plaintiff who, being of less strength of character, simply resigns himself or herself to the injury;[29]
(d) Mr Bourke is an active person. His job is physical and he also has a regular exercise regime, he fishes, he chops wood, and he does gardening around his home. Although it is true to say he does not have pain when at rest, he is rarely at rest;[30] and
(e) Applying the “checklist” in Haden Engineering v McKinnon,[31] would result in a great disservice to Mr Bourke. I understood by “disservice”, Senior Counsel meant injustice because of the lack of any recommended treatment for an injury of this type.
[29]Jarvie v Sideliner Contracting Pty Ltd [2024] VSCA 144 at paragraph [69]
[30]T60
[31](2010) 31 VR 1
Impairment consequences
Consequences of the injury
45In Haden Engineering v McKinnon,[32] the Court of Appeal said the weight to be attached to the plaintiff’s account of the pain experience will depend on the assessment of the plaintiff’s credibility:
(a) Some plaintiffs may be more stoical than others, such that they are prepared to endure pain in order to maintain a desired level of function; and
(b) The Court must consider the extent to which pain interferes with the ordinary activities of daily life – sleep, mobility, cognitive functioning, capacity for self care, performance of household and daily duties, recreational activities, social life, sexual life and enjoyment of life.
[32]Ibid
46In Kelso v Tatiara Meat Co Pty Ltd,[33] Dodds-Streeton JA said:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[33]Supra at paragraph [199]
Analysis
47There is no dispute on the medical evidence that Mr Bourke suffered a longhead of biceps rupture and has been permanently left with what is described as a Popeye deformity in the left upper limb.
48I accept the submissions made by Senior Counsel for Mr Bourke that the reason he had little or no treatment is because no treatment has been recommended.
49At work, although he was a supervisor for a number of years prior to the injury, he enjoyed performing the physical aspects of his job as an arborist. He has been unable to return to that level of physical activity at work. At leisure, Mr Bourke enjoyed keeping fit, performing exercise and push-ups every day, and fishing in a large boat. He chopped wood to heat his home and maintained his garden.
50The consequences of this injury are, in my view, more than significant or marked and at least very considerable, because I accept his evidence about the consequences of the injury to him. These are as follows:
(a) he experiences pain on physical activity and he is a man for whom physical activity features in a very significant way in both his personal life and at work, every day;
(b) he is a stoic person who has understated the level of pain he experiences and has persisted both at work, at home and as much is possible in his leisure pursuits moreso than a less stoic person might do;
(c) his sleep is regularly affected by pain, and he finds himself waking up to take Panadol and at times, being unable to return to sleep;
(d) he takes painkilling medication regularly. Although it is only over-the-counter medication, he takes it many times a week and has been doing so for four years. It does not appear that this situation is likely to alter in the foreseeable future; and
(e) although Professor Ek reported that the injury was unlikely to affect any social, recreational and domestic activities, it does not appear that he has noted any history of the extent of Mr Bourke’s pre-injury physical work and leisure activities. Mr Sheard appears to accept that Mr Bourke is working less on the tools and that he experiences a popping-type pain with heavy use and decreased strength. Mr Bourke, as a stoic person, is likely to come across that way both to the Court and on assessment by doctors.
51This is a borderline case. On the one hand, it appears as though many of the activities Mr Bourke previously enjoyed have been retained, albeit in a reduced or modified form. On the other hand, he was a credible and reliable witness who described a significant level of pain interference in his daily activities, both at work and at home.
52That pain is associated with physical activity. Mr Bourke, his treating practitioners and the medico-legal experts who have provided an opinion in this case, all note that at rest, he does not experience any pain. I accept the submission of his Senior Counsel that he is rarely at rest.
53What tilts the balance in Mr Bourke’s favour is his credit and his having been a very active person prior to this injury which he has endeavoured to maintain despite the pain. The extent of pre-injury physical activity has a bearing on the Court’s assessment of the consequences to Mr Bourke of the left upper limb injury.
54I am persuaded that his inability to perform the more physical aspects of his job as an arborist and the substantial reduction in his exercise regimen are consequences that are very serious for Mr Bourke as these had been daily activities which he enjoyed prior to his injury.
55Individually, neither of the consequences would be sufficient to meet the threshold. However, combining them and taking into account the pain experienced on physical use of the left arm, persuades me that the whole of the evidence demonstrates very considerable pain and suffering consequences. I take into account the range of possible impairments.
56While this injury might be considered to be at the lower end of the scale of serious injuries, the consequences to Mr Bourke are significant because he had been such an active person before the injury and has persisted in his activities despite the pain.
57I grant Mr Bourke leave to commence proceedings for pain and suffering damages for the permanent serious impairment of the body function of the left upper limb.
Disfigurement
58Together with counsel, I viewed Mr Bourke’s left upper arm at close range. Mr Bourke removed his shirt, exposing a singlet beneath. His counsel asked him to show the bump and he raised his arm from where it had been positioned beside his body.
59When Mr Bourke raised his arm, it was possible to see a flattened portion below his shoulder where the bicep should be, and the appearance of a tennis ball-sized lump or perhaps smaller just above[34] the crook in his arm. The appearance of the round tennis ball-sized lump is consistent with the appearance of the biceps of the cartoon character Popeye.
[34]The transcript refers to the tennis ball sized-lump as being just below the crook in his arm. This is an error. The lump is found just above the crook in his arm (see T6, Line 15).
60Both of the plaintiff’s affidavits referred to being self-conscious about the appearance of the bulging muscle and in the summer months, having to wear shirts to cover it up so that it is not as noticeable.
61Mr Chehata reported that a classic Popeye deformity is often well-tolerated according to the medical literature, and is not necessarily a gross deformity. However, Mr Chehata accepted that it looked abnormal.[35]
[35]DCB 8
62Professor Ek made no comment on the appearance save to report that it may be possible to improve the cosmetic appearance with surgery. Mr Sheard did not comment on the appearance.
63Counsel for the defendant submitted it was not particularly attractive but by the same token not terribly unsightly or prominent in a 67-year-old muscly man with tattoos and that it was for the assessment of the Court .
64Counsel for the plaintiff submitted that it was a classical disfigurement of the upper arm which is very noticeable and in the context of disfigurement cases comfortably meets the test “very considerable”.
65I have considered a range of disfigurement cases which deal with a similar deformity.[36] While each case turns on its own facts, this is not a case where Mr Bourke is a model or has any particular need to display his arms.
[36]Annett v VWA [2020] VCC 885; Bennett v Victorian WorkCover Authority [2021] VCC 1863; Hooley v Transport Accident Commission [2019] VCC 150; Hooley v Transport Accident Commission [2019] VSCA 263; Taylor v Victorian WorkCover Authority [2021] VCC 962
66It is possible to see the disfigurement when one is in close proximity to Mr Bourke and pays attention to the arm in a raised position. However, I cannot say it is obvious to a high degree or that it might be obvious from a distance. When comparing it to the range of other possible disfigurements such as facial scarring or burns, I do not accept the Popeye deformity can be fairly described as more than significant or marked and very considerable.
67I will hear the parties with respect to costs.
- - -
0
10
0