Brown v Bayside Estimating Services Pty Ltd

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-22-01604

NICHOLAS BROWN	Plaintiff
v
BAYSIDE ESTIMATING SERVICES PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE CLARK
WHERE HELD:	Melbourne
DATE OF HEARING:	23 January 2024
DATE OF JUDGMENT:	3 May 2024
CASE MAY BE CITED AS:	Brown v Bayside Estimating Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VCC 519

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – right index finger injury – disfigurement – loss of body function – psychological injury – pain and suffering – loss of earning capacity – credit – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335; s325(1)
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Porto v Design Line Cabinets Pty Ltd (Deregistered) & VWA [2012] VCC 1645; MacDougall v Victorian WorkCover Authority [2021] VCC 1292; Sorrentino v Victorian WorkCover Authority [2022] VCC 581; Razai v Victorian WorkCover Authority [2022] VCC 1732; Robinson v Victorian WorkCover Authority [2023] VCC 1948; Hussain v Victorian WorkCover Authority [2023] VCC 2283; Transport Accident Commission v Garcia [2015] VSCA 225; Bustos v VWA [2021] VCC 1531; Kalinic v Acron Engineering Pty Ltd [2012] VCC 1052; Griffiths v Transport Accident Commission [2022] VCC 454; Kaos v XL Premix Pty Ltd [2023] VCC 1229; Nelson v Transport Accident Commission [2023] VCC 1575; Na v Victorian WorkCover Authority [2024] VCC 426; Mobilio v Balliotis [1998] 3 VR 833;Transport Accident Commission v Katanas (2017) 346 ALR 191; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Jarvis v Woolworths Limited [2012] VCC 1329; State of New South Wales v Moss (2000) 54 NSWLR 536; Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015; Spiteri v Victorian WorkCover Authority [2016] VCC 912; Sharma v Chandler Personnel Services Pty Ltd [2018] VCC 1658; Debono v Victorian WorkCover Authority [2022] VCC 1317; Peak Engineering & Anor v McKenzie [2014] VSCA 67; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Margriplis-Hampton v Spendwatt Pty Ltd [2022] VSCA 15

Judgment: Leave granted to the plaintiff to bring common law proceedings for damages for both pain and suffering and economic loss in respect to the right index finger/hand injury suffered in the course of his employment on 10 February 2018.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C O’Sullivan with Mr A Coote	Slater and Gordon Pty Ltd
For the Defendant	Mr P Elliott KC with Ms C Shambrook	Minter Ellison

HIS HONOUR:

The history of the matter
1The plaintiff, Mr Nicholas Brown, is now aged twenty-six years. On 10 February 2018, in the course of his employment with the defendant, Bayside Estimating Services Pty Ltd (“Bayside”), his right index finger was struck by the blade of a power saw being operated by a co-worker (“the incident”). At the time, Mr Brown was an apprentice carpenter.
2As a result of the incident, Mr Brown said his right index finger was badly injured. He said his finger “looked a bit like mincemeat”.[1] Surgery to repair the finger was undertaken at the Frankston Private Hospital later that day.
[1]Paragraph [5], Plaintiff’s Court Book (“PCB”) 11
3Mr Brown was off work for approximately two weeks. Apart from one day off to have the K-wires removed from his right index finger, Mr Brown continued working with Bayside until May 2019. The nature and extent of the work undertaken by Mr Brown in this period is in dispute.
4On 23 May 2019, Mr Brown’s employment with Bayside was terminated. The circumstances of the termination are in dispute.
5Mr Brown said that since the termination he has only had sporadic employment.
6Mr Brown says he continues to have ongoing pain, impaired function and disfigurement by reason of his right index finger/hand injury. Mr Brown also says he suffers ongoing psychological distress.
7Mr Brown says his right index finger/hand injury is a serious injury for both pain and suffering and economic loss purposes. Mr Brown also says his psychiatric injury is a serious injury for pain and suffering and economic loss purposes.
8Bayside denies that Mr Brown has suffered a serious injury.

What is the nature of this proceeding?
9This is an application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Mr Brown relies upon paragraphs (a), (b) and (c) of the definition of “serious injury” in s325(1) of the Act. That is:
(a)   his right index finger/hand injury is a “permanent serious impairment or loss of a body function”;
(b)   the disfigurement to his right index finger constitutes a “permanent serious disfigurement”;
(c)   his psychological distress resulting from the incident constitutes a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
10For Mr Brown to be successful, he must establish that the consequences from his right index finger injury/hand injury and/or the disfigurement and/or the psychological distress which he suffers, when judged by comparison with other cases in the range of possible impairments or losses of body functions and/or disfigurements and/or psychiatric conditions are, “more than significant or marked” and “at least very considerable”, as per the narrative tests set out in ss325(2)(b), 325(2)(c) and 325(2)(d) of the Act.
11For Mr Brown to satisfy the “very considerable” loss of earning capacity consequences, he must satisfy the statutory formula contained in s325(2)(e)(i) and (ii). That is, he has a loss of earning capacity of 40 per cent or more and that he will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more.

What are the issues for the Court to determine?
12Bayside admitted that Mr Brown sustained an injury to his right index finger as a result of the incident. Otherwise they said all issues were in dispute. In particular, they said:
(a)   Mr Brown’s credit and reliability was in issue;
(b)   the Court should accept the opinion of Mr Thomas Robbins, hand, plastic and reconstructive surgeon;
(c)   Mr Brown’s alleged injuries were not serious for pain and suffering purposes;
(d)   Mr Brown had not satisfied the test for a grant of leave to pursue economic loss damages.
13That being so, the issues for the Court’s determination include:
(a)   as to Mr Brown’s credit and reliability and whether I can accept his evidence;
(b)   which of the medical opinions should be accepted and what assistance do they provide;
(c)   whether the consequences alleged by Mr Brown satisfy the serious injury test in respect to:
(i)the impairment to his right index finger/hand;
(ii)the disfigurement to his right index finger/hand;
(iii)his psychological distress;

(d) whether Mr Brown has sustained a loss of earnings of 40 per cent or more.

What conclusions do I reach in respect to Mr Brown’s credit and reliability?
14As in a great number of cases of this type Mr Brown’s credit and reliability is critically important.[2]
[2]See for example the analysis of the Court of Appeal in Johns v Oaktech Pty Ltd [2020] VSCA 10, particularly paragraph [76].
15Bayside attacked Mr Brown’s credit and reliability on many fronts. They said:
(a) There was a disparity between Mr Brown’s evidence and his histories to doctors, and the video shown to the Court. Bayside said the video impugned Mr Brown’s credit.
(b) The evidence of Mr Brown’s boss, Mr Scott May, should be accepted and established Mr Brown:
(i)was not truthful;
(ii)should not be accepted by the Court;
(iii)had little or no consequential impairment of his right index finger/hand.

(c)   Mr Brown’s evidence about his failure to pursue an unfair dismissal claim lacked credibility.
(d)   Mr Brown’s evidence in respect to his cessation of hand therapy lacked credibility.
(e)   Mr Brown had displayed a capacity for work and his assertion of significant and ongoing impaired capacity for work was contradicted by both the balance of his evidence and the balance of the evidence generally.
(f)    Mr Brown’s discussions with representatives of CoWork Pty Ltd (“CoWork”) ran contrary to his evidence to the Court.
(g)   The conclusions of Mr Robbins, which Bayside said the Court should accept and adopt, was that:
(i)Mr Brown’s presentation was motivated by the possibility of financial gain;[3]
(ii)Mr Brown was exaggerating;[4] and
(iii)Mr Brown had little or no consequential impairment of his right index finger/hand.
[3]Paragraph (l), Defendant’s Court Book (“DCB”), 55
[4]Paragraph (g), DCB 55

16It is appropriate that I:
(a)   analyse each of these specific attacks on Mr Brown’s credit and reliability;
(b)   set out my conclusions following such analysis;
(c)   set out my observations and conclusions in respect to Mr Brown’s presentation to the Court;
(d)   detail my overall conclusions in respect to Mr Brown’s credit and reliability.

The video
17Going firstly to the video surveillance shown to the Court.
18I was shown video of Mr Brown undertaking various activities on:
(a)   23 July 2023; and
(b)   1 August 2023.
19This in the context of the admission by Bayside that they had undertaken sixty hours of surveillance of Mr Brown.[5]
[5]Paragraph [23] of plaintiff’s written submissions
20I will not recite in detail the totality of the video. In simple terms:
(a)   the 23 July 2023 video showed Mr Brown:
(i)attending Bunnings warehouse;
(ii)attaching a trailer to his car;
(iii)purchasing tie downs;
(iv)attending a friend’s home in Frankston and assisting with the lifting of a fridge onto the trailer;
(v)carrying a drop saw to his car;

(b) the 1 August 2023 video showed Mr Brown:
(i)attending Sydney Tools;
(ii)attending a friend’s home at Mornington;
(iii)carrying items to/from his car, including an impact driver and a leaf blower.

21Bayside said I should accept:
(a)   there was a disparity between the video and Mr Brown’s affidavit evidence and presentation to doctors;
(b)   the video established Mr Brown had a far greater capacity than he was prepared to concede;
(c)   the inference that Mr Brown was undertaking work at the Mornington property;
(d)   the state of Mr Brown’s Holden station wagon, which had roof racks to which ladders were strapped and shelving in the rear which housed tools, in conjunction with the balance of the evidence, establishes that Mr Brown:
(i)was working; and
(ii)has a greater work capacity than he was prepared to concede;

(e) the only proper conclusion to be drawn from the video is that Mr Brown’s ongoing impairment (if any) is modest and certainly not serious.
22In considering the merits of Bayside’s submissions, it is appropriate to review Mr Brown’s evidence in response to those activities depicted in the video.
23Mr Brown said:
(a) By reason of his right index finger/hand injury he had to modify how he attached the trailer. In particular:
(i)he used the palm of his hand to wind the jockey wheel;[6]
[6]Transcript (“T”) 18, Line (“L”) 33
(ii)he was not able to grip the handle as he would have normally done but for his injury;[7]
[7]T18, L40-45
(iii)in attaching the safety chain, he was slower because of his impaired dexterity.[8]
[8]T19, L30 and T70, L25

(b)   When purchasing the tie downs, he took particular care to select one which had a wider handle so he could use both hands, not just his dominant right hand.[9]
[9]T22, L10 and T70, L1-5
(c)   He agreed, when helping to lift the fridge, he used both hands. However, he said the majority of the lift and exertion was through his non-dominant left hand.[10]
[10]T21, L1-5
(d)   He attended Sydney Tools to help in the preparation of a list of items which he may need as a part of the proposed waterproofing course, not to purchase anything.[11]
[11]T25 and T26
(e)   He did attend the property at Mornington. The couple who lived there are friends of his.[12]
[12]T29, L45
(f)    He agreed he obtained an impact driver and leaf blower from the back of his car and carried these items inside the home. He said:
(i)he rented tools to people;[13]
(ii)he did not use the impact driver when at his friend’s house;[14]
(iii)he helped look after his friend’s six-year-old child while they worked on the property;[15]

(iv)he did use the blower to clean up some leaves;[16]
(v)he may have given his friends some advice about painting and demonstrated what to do;[17]
(vi)he did not engage in any work for his friends.[18]
[13]T14, L2
[14]T32, L20
[15]T35, L10-20
[16]T32, L9-11
[17]T35, L35 – T36, L5
[18]T31, L25-35

24Referring to the state of his Holden station wagon.
25Mr Brown said he had owned this car at the time he was undertaking his apprenticeship with Bayside. Mr Brown said he had the car decked out for work at that time. Mr Brown said his car remained as it was back at the time he was injured. Mr Brown conceded:
(a) at times he used the ladders which were strapped to the roof racks of his car;
(b) he kept his tools in the car.

What do I make of the video and Mr Brown’s explanations?
26I consider the video to be, in colloquial terms, a “double-edged sword” for the parties.
27The video showed Mr Brown undertaking a range of day-to-day activities. That shows capacity. However, it also gave Mr Brown an opportunity to explain the impact his right index finger/hand injury has in the context of real life. That is:
(a)   his impaired dexterity when undertaking fiddly/fine motor skill tasks;
(b)   the impact on his grip;
(c)   the restriction which he has in using his right hand to exert force;
(d)   the need to choose carefully day-to-day items such as the tie down so as to accommodate his right index finger/hand injury.
28I do not accept there is anything unreasonable or sinister about the state of Mr Brown’s car given the level of activity which he concedes. Specifically, Mr Brown conceded he has undertaken some work since the incident.
29Having said that I accept that Bayside quite properly raised:
(a)   the state of Mr Brown’s car as an issue before the Court;
(b)   the purpose and motivation of Mr Brown having his tools stored in his car.
30Of the inference I was asked to draw that Mr Brown worked at the Mornington property, there was no additional evidence on this point called by Bayside. Having obtained the video surveillance, Bayside did not produce evidence from the owners of that property to establish that Mr Brown did in fact undertake work there.
31As Mr Brown’s counsel submitted, I must exercise care not to draw conclusions that are no more than mere speculation.
32While I accept the video depicts Mr Brown undertaking a range of activities, I take heed of what Mr Brown said by way of explanation. Mr Brown said he undertook such activities with a level of restriction. Mr Brown provided what I consider to be valid explanations.
33This is not an application where Mr Brown says he is without capacity and that his right index finger/hand injury precludes him from the majority of day-to-day activities. The consequences alleged by Mr Brown are much more specific and nuanced.
34I do not accept the video is the “knockout blow” on credit which Bayside asserts.

Mr Scott May’s evidence
35I move now to the evidence of Mr May.
36Mr May said:
(a)   In paragraph 3 of his affidavit, Mr Brown suffered an “alleged injury”.[19]
(b)   Within a few weeks of the incident Mr Brown resumed full and unrestricted duties.[20]
(c)   Mr Brown’s injury appeared to be of little or no hindrance to him.[21]
(d)   Mr Brown’s right index finger:
(i)works;
(ii)bends;
(iii)straightens;
[19]Paragraph [3], DCB 274
[20]Paragraph [4], DCB 274
[21]Ibid

enough to use any power tool, hand tool and to carry any material required in normal duties. It did not prevent Mr Brown performing any duties after the initial few weeks of modified work.[22]
(e)   Mr Brown, after he returned to work, in addition to working normally as an apprentice carpenter, also undertook work out of hours cleaning houses.[23]
(f)    He knew that it was Mr Brown who left a bucket of faeces at a work site.[24]
(g)   Mr Brown had lost his licence for “drug-driving”.[25]
(h)   He did not believe, contrary to what Mr Brown said, that he regularly attended a gym prior to the incident.[26]
(i)    Mr Brown had every opportunity to complete his apprenticeship and continue his career.[27]
[22]Paragraph [6], DCB 275
[23]Paragraph [7], DCB 275
[24]Paragraph [11], DCB 275-276
[25]Paragraph [12], DCB 276
[26]Paragraph [13], DCB 276
[27]Paragraph [16], DCB 276
37Put simply, Mr May:
(a)   painted a very uncomplimentary picture of Mr Brown;
(b)   asserted that the state of Mr Brown’s right index finger/hand injury and the consequences flowing from that, were not of any real significance and did not, in practical terms, impact upon his work capacity.
38Mr Brown said I should not accept Mr May’s evidence. Mr Brown said Mr May’s evidence was:
(a)   in important aspects wrong;
(b)   in part based on hearsay;
(c)   in part opinion.

The inspection
39Before completing my analysis of Mr May’s evidence and the attack on Mr Brown’s credit generally, it is appropriate that I make reference to the inspection of Mr Brown’s right index finger/hand which I undertook in the course of the application.
40The inspection was very helpful and gave me greater insight into many of the issues which are in play in this application.
41In the course of the inspection I noted:
(a)   The right index finger is approximately 1 centimetre shorter than the left.
(b)   The distal interphalangeal joint is stiff. There is no movement at that joint.
(c)   The tip of the right index finger is deformed and deviates to the right.
(d)   The right index fingernail is deformed.
(e)   There was reduced pulp in the finger from the distal interphalangeal joint.
(f)    The movement of the proximal interphalangeal joint was restricted to just short of 90 degrees.
(g)   By reason of the lack of movement of the distal interphalangeal joint, Mr Brown was not able to form a proper fist and his capacity to grip was impaired.
42In the course of the inspection Mr Brown said he had impaired sensation to an area of his right index finger. Mr Brown was quite specific when providing his explanation. The impacted area was the right half of his right index finger from the proximal interphalangeal joint to the tip of the finger.
43I accept that Mr Brown put in a full effort in the course of the inspection and, in particular, a full effort at the time he endeavoured to close his right index finger into a fist formation. There was no grimacing, exaggeration or amplification. I accept Mr Brown was genuine in this presentation.

44What follows is the diagram which I prepared immediately following the inspection:

45In the course of the inspection Mr Brown, at my request gripped, with his right hand, the Court microphone stand which was located in the witness box. This demonstration enabled me to see in functional terms Mr Brown’s impaired capacity to bend his right index finger and grip his right index finger around the microphone stand. Mr Brown’s movement and grip capacity was obviously impaired.
46As a result of the inspection, I gained an understanding of how Mr Brown’s right index finger/hand injury would impact him in many facets of his ordinary day-to-day activities. In particular:
(a)   when undertaking activities which require fine motor skills and dexterity;
(b)   any activity requiring a grip using his right hand;
(c)   in the context of this application, the impact on Mr Brown’s capacity to use tools generally, and specifically power tools.

Referring back to Mr May’s evidence
47I did not have the opportunity to see Mr May in the witness box. However, I found numerous aspects of his evidence to be troubling.
48There are aspects of Mr May’s evidence which I accept are factually wrong. For example, his assertions that Mr Brown lost his driving licence for “drug-driving”.
49There are other assertions which Mr May made which:
(a)   I accept to be opinion evidence and of which I take no regard;
(b)   are contrary to my observations at the time of the inspection;
(c)   are contrary to the medical evidence which I accept (and which I will outline in detail later in this judgment);
(d)   in respect to the bucket of faeces allegation, without direct knowledge.
50In these circumstances I do not accept Mr May’s evidence:
(a)   in many aspects to be reliable;
(b)   assists my determination in a meaningful way.

The failure to pursue an unfair dismissal claim
51Bayside sought to rely upon Mr Brown’s failure to pursue an unfair dismissal claim as impugning his credit:
(a)   in respect to the circumstances of the termination of his employment itself;
(b)   generally.
52Mr Brown agreed he had consulted solicitors subsequent to being terminated. He said the matter went no further after these discussions. Mr Brown said he did not really understand why. It is speculation for me to postulate why such a claim did not proceed. It could have been for a multitude of reasons. For example:
(a)   it was without merit;
(b)   it was not commercially viable;
(c)   the solicitors were more focused on a personal injury claim.
I just do not know.
53I give no weight to this attack.

The cessation of hand therapy
54I now move to Bayside’s attack on Mr Brown based on the cessation of his hand therapy treatment.
55Bayside said that Mr Brown’s evidence of the cessation of his hand therapy was “plainly incorrect”.[28]
[28]Paragraph [14] of defendant’s written submissions
56Bayside relied upon a letter from their authorised insurer to Mr Brown dated 28 September 2022 which said, in part:
“… ‘if further sessions are required, please provide a treatment plan for review. …’”.[29]
It would be a matter for the hand therapist to prepare such a plan.
[29]Paragraph [14] of defendant’s submissions and Exhibit 8
57Mr Brown said he relied upon what his hand therapist had told him. That is, that Bayside’s authorised insurer would not pay for any further sessions.[30]
[30]T66, L25-45
58I did not have:
(a)   the clinical records of the hand therapist;
(b)   correspondence between Bayside’s authorised insurer and the hand therapist;
(c)   any direct evidence from either the authorised insurer or the hand therapist in respect to:
(i)any application for further sessions;
(ii)whether such application was accepted or denied.

59I further note:
(a)   Dr Darrell Nam, plastic reconstructive and hand surgeon, said in April 2021, no further treatment would improve Mr Brown’s condition;[31]
(b)   Dr Tim Hwang, consultant occupational physician, who said that hand therapy had provided no significant perceived improvement;[32]
(c)   Mr Robbins, who says Mr Brown’s “hand therapy is not helpful”.[33]
[31]Paragraph [4.2], DCB 7
[32]Paragraph [E.], DCB 44
[33]Paragraph [(j)], DCB 55
60Whether or not the authorised insurer had in fact advised no further hand therapy sessions would be paid for or not, I do not know. Whether, given the opinions of Dr Nam, Dr Hwang and Mr Robbins, which are reports commissioned by Bayside, the authorised insurer would have approved ongoing hand therapy is again speculation. The opinions of Dr Nam, Dr Hwang and Mr Robbins would tend against this. However I have no evidence as to the true state of affairs.
61I am not convinced that there is any proper basis for this aspect of the criticism which Bayside has made of Mr Brown. I do not give any weight to this aspect of the attack.

Mr Brown’s displayed capacity for work
62Bayside said Mr Brown had capacity to work which had been established by:
(a)   The fact he had worked for approximately twelve months with Bayside post the incident.
(b)   He had cleaned houses.
(c)   He had, on his own admission, undertaken sporadic work, which he said he obtained via labour-hire companies. This was said to be labouring- and gardening-type work.[34]
[34]Paragraph [11], PCB 11
63Bayside said this work established Mr Brown had a retained capacity. The point which was sought to be made was that this evidence established, in fact, Mr Brown had no impairment of significance and this ran contrary to what he asserted.
64Specifically Bayside said Mr Brown asserted his right index finger/hand injury was the reason why he was not working and that was incorrect. This, Bayside said, went to credit.
65Mr Brown did not resile from the fact he had returned to work. Both in his affidavit evidence and his oral evidence he accepted he had a capacity for work.
66For example, in his oral evidence he said:
Mr Elliott: “All right. Now, the situation is that there are a wide variety, are there not, of work activities that you can perform?
Mr Brown:Depends on, like, what scope of work, but yes.”[35]
[35]T64, L35-40

67The real impact of this attack in the context of this application, as I see it, goes to:
(a)   the ongoing impact of the right index finger/hand injury on Mr Brown’s capacity and, in particular, his work capacity;
(b)   whether I draw an inference from the failure by Mr Brown to obtain work in the last few years;
(c)   what I should make of Mr Brown’s acceptance of and indeed his willingness to undertake the waterproofing course.
68I do accept that such matters are properly for my consideration in respect to the consequences of Mr Brown’s right index finger/hand injury and his capacity and, in particular, work capacity.
69However, I do not accept and I do not give any weight on matters of credit to the manner in which Bayside has sought to criticise Mr Brown about his return to work and/or failure to currently be working.

CoWork
70Moving now to Mr Brown’s interaction with CoWork.
71In paragraph 16 of Bayside’s written submissions, Bayside referred to discussions with CoWork assessors where it is said Mr Brown conceded:
(a)   he was ready to return to work;
(b)   he was open to do further courses.
72This is not contrary to Mr Brown’s evidence. He said:
(a)   he is not unfit for all work, rather he has a restriction in the nature and type of work he can undertake;
(b)   it is his intention to undertake the waterproofing course.
73In reality, I consider this aspect of Bayside’s attack is essentially revisiting the same issues as the work capacity attack, but under a different guise. I consider the real thrust of such submissions goes to capacity for work (and generally) rather than credit.

Mr Thomas Robbins
74I will provide a detailed analysis of my conclusions in respect to Mr Robbins later in this judgment. At this stage, I simply say that I do not accept significant aspects of Mr Robbins’ evidence and conclusions. It follows the attack made by Bayside on Mr Brown based on Mr Robbins’ opinion, likewise, is not accepted.

What is my overall assessment of Mr Brown’s credit and reliability and what conclusions do I make?
75Moving now to my assessment of Mr Brown in the witness box and generally.
76Mr Brown’s evidence, honesty and reliability was well tested by Bayside.
77It is clear Bayside had formed a view that Mr Brown, at best, was exaggerating and overstating any consequential impairment flowing from his right index finger/hand injury, and at worse was no more than a liar, malingerer and someone whose credit had been impugned, to adopt Mr Robbins, a man whose evidence and presentation in this application was motivated by financial gain.[36]
[36]See paragraphs [(k)] and [(l)], DCB 55
78This is not a conclusion I share.
79I do not for a number of reasons.
80Firstly, I consider Mr Brown, in the witness box, gave his oral evidence in a frank and forthright manner. Mr Brown:
(a)   Made admissions against interest.
(b)   Provided what I accept to be reasoned explanations when responding to the video.
(c)   Under what was a searching cross-examination by Senior Counsel appearing on behalf of Bayside, generally gave his evidence in a measured and satisfactory manner and in a manner where I do not accept his credit was undermined.
Put simply, I thought Mr Brown presented well in the context of his background circumstances.
81Secondly, and importantly to me, was the inspection.
82There was an obvious deformity and restriction of movement of the right index finger. It was easy to see how such deformity and restriction would impact Mr Brown’s right hand function.
83I accept Mr Brown’s demonstration at the time of the inspection, and explanation to the Court of the consequences flowing from his right index finger/hand injury to be genuine.
84Put bluntly, the inspection:
(a)   reinforced and underpinned the balance of Mr Brown’s evidence;
(b)   ran contrary to aspects of Mr May’s evidence;
(c)   undermined aspects of Mr Robbins’ evidence;
(d)   provided me with a level of comfort in the conclusions which I reach in this judgment.
85For the reasons outlined:
(a)   I do not accept Bayside’s multiple attacks, either individually or cumulatively, properly lead to the conclusion Mr Brown’s credit was impugned;
(b)   I consider Mr Brown’s presentation, and his evidence generally, to be satisfactory.
I do not accept Mr Brown’s credit to be impugned, nor do I accept his evidence was generally unreliable. It is through this lens that I undertake my further analysis.

Which of the medical opinions should I accept and what assistance do they provide?
86I shall when analysing the medical evidence:
(a)   firstly review the treating medical practitioner evidence;
(b)   then review the medico-legal evidence in chronological order.
87Of the evidence of the treating medical practitioners, it was the history of Professor Warren Rozen, plastic reconstructive and hand surgeon, and the evidence of Mr Ross Bruce, physiotherapist (practising in hand therapy), which I found to be of most assistance. The evidence of Dr Kelly Gibbs, general practitioner, was of very limited assistance.
Professor Warren Rozen
88Mr Brown consulted Professor Rozen on the day of the incident. Professor Rozen made a diagnosis of a subtotal right index finger amputation. Professor Rozen operated on Mr Brown later that day. Professor Rozen said:
(a)   he undertook a debridement and repair of a significant right index finger injury;
(b)   there was an open fracture of both the middle and distal phalanges;
(c)   he undertook joint, tendon, nerve and artery repair;
(d)   the fractures were reduced and fixed with Kirschner Wire fixation.[37]
[37]PCB 38
89Professor Rozen said Mr Brown had sustained a degree of irreparable damage to his right index finger.[38]
[38]Ibid
90Professor Rozen said Mr Brown was not compliant with his post-operative care.[39]
[39]Ibid
Mr Ross Bruce
91Mr Bruce first assessed Mr Brown on 24 January 2023.
92Mr Bruce said Mr Brown presented for treatment due to ongoing cold and vibration sensitivity with his right index finger which was:
(a)   preventing him from participating in the workforce;
(b)   impacting his capacity to complete activities of daily living.[40]
[40]PCB 63
93Mr Bruce said:
(a)   He considered Mr Brown, due to the longstanding nature of his condition, was suffering a degree of central sensitisation.[41]
(b)   The distal interphalangeal joint had been surgically fused. He said that state of affairs will not change.[42]
(c)   There was a level of hypersensitivity around the injury site.[43]
[41]Ibid
[42]PCB 64
[43]Ibid
94In respect to the impact of the right index finger/hand injury on Mr Brown’s work capacity, Mr Bruce said that physically Mr Brown would have difficulty using his right hand as a carpenter. In particular, he referred to:
(a)   vibration-based tools such as drills, saws, and nail guns;
(b)   repetitive use of Mr Brown’s right hand, particularly involving tools.[44]
[44]Ibid
95Mr Bruce said Mr Brown’s injury has had a wide-ranging and negative impact on Mr Brown’s domestic and social life.[45]
[45]PCB 65
96Mr Bruce said that Mr Brown may benefit from a referral to pain management.[46]
[46]PCB 64-65
97Mr Bruce also noted Mr Brown was suffering from mental health concerns and distress.[47]
[47]PCB 65

The medico-legal evidence
98I shall review the medico-legal evidence in chronological order.
Dr Darrell Nam
99Dr Nam assessed Mr Brown on 14 April 2021 for Bayside.
100Dr Nam obtained a history of Mr Brown’s ongoing problems including:
(a)   pain and tightness in the right index finger;
(b)   loss of power in the right hand;
(c)   loss of dexterity.[48]
[48]DCB 6
101The clinical examination reported by Dr Nam was in general terms similar to my observations at the time of the inspection. Dr Nam said on examination:
(a)   the right index finger was deformed;
(b)   the right index finger was about 1 centimetre shorter than the left index finger;
(c)   the distal phalange was wasted;
(d)   there was an ulnar deviation;
(e)   the distal interphalangeal joint was fused;
(f)    the proximal interphalangeal joint flexed to 95 degrees;
(g)   there was irregular scarring;
(h)   two-point discrimination was greater than 6 millimetres distal to the proximal interphalangeal joint.[49]
[49]DCB 6-7
102Dr Nam said there was a diagnosis of a compound fracture of the right index finger and partial digital nerve damage.
103Further, Dr Nam said:
(a)   the condition was stabilised;
(b)   no further treatment was likely to be offered, nor would it improve Mr Brown’s condition.[50]
[50]Paragraph [4.2], DCB 7
104Dr Nam noted various consequences to Mr Brown’s activities of daily living including:
(a)   putting his hand in his pocket and catching the deformed fingernail;[51]
[51]Paragraph [1.6], DCB 6
(b)   not being able to use power tools because of:
(i)the need for the right index finger to activate drills, saws, and planers;
(ii)pain from vibration;[52]

(c) the impact upon recreational activities such as:
(i)rock climbing;
(ii)water sports;
(iii)fishing.[53]
[52]Paragraph [1.3], DCB 6
[53]Paragraph [1.6], DCB 6

105Dr Nam said “[t]he injury has a significant impact on his [Mr Brown’s] occupational prospects and has a lesser effect on his activities of daily living”.[54]
[54]Paragraph [4.2], DCB 7
106Dr Nam also said that he considered Mr Brown was suffering from some post-traumatic stress disorder (“PTSD”) symptoms relating to his injured right index finger, and this impacted upon his life. Dr Nam said Mr Brown should be offered psychological support.[55]
[55]Paragraph [10], DCB 8
Dr Dush Shan, consultant psychiatrist
107Dr Shan assessed Mr Brown for Bayside on 28 February 2022.
108At the time of this assessment Dr Shan:
(a)   made a diagnosis of mild PTSD;[56]
(b)   did not consider further treatment was likely to lead to any improvement.[57]
[56]DCB 14
[57]Paragraph [4.], DCB 15
109Dr Shan said Mr Brown’s employment was a significant contributing factor to his injury. This in a setting of:
(a)   possible Attention Deficit Hyperactivity Disorder (“ADHD”);[58]
(b)   Mr Brown’s best friend having been murdered, and pre-existing issues involving his mother and stepfather.
[58]Paragraph [I.], DCB 14
110Dr Shan also said:
(a)   Mr Brown had capacity for suitable employment within his physical capacities;[59]
(b)   counselling by a psychologist may be appropriate if required by Mr Brown’s treating general practitioner.[60]
[59]Paragraph [7], DCB 15
[60]Paragraph [8], DCB 16
111In a supplementary report of 5 September 2022, having been asked to comment on a series of employment options suggested by CoWork,[61] Dr Shan said that Mr Brown was not precluded from such employment options from solely a psychiatric viewpoint.[62]
[61]I will make further and detailed comment in respect to these employment options later in my judgment. See paragraphs 348 to 351
[62]DCB 19-20
Dr Tim Hwang
112Dr Hwang assessed Mr Brown for Bayside on 22 March 2022.
113Mr Brown told Dr Hwang his employment with Bayside had been terminated in June 2019. Since that time he said he had “sporadic jobs” including:
(a)   on/off for four months with Kyden Group, a building company, undertaking labouring duties;[63]
(b)   a landscape gardening job for nine days;[64]
(c)   one month labouring for a group of painters;[65]
(d)   two weeks with a pest-control company.[66] However, this was too demanding, given the stresses on Mr Brown’s right index finger/hand, and he was not able to continue.[67]
[63]DCB 30
[64]Ibid
[65]Ibid
[66]DCB 31
[67]Ibid
114Dr Hwang also obtained a history that Mr Brown:
(a)   had applied for apprentice carpenter positions but had been unsuccessful;[68]
(b)   was suffering “a significant degree of psychosocial stressors including the loss of a friend in recent times”.[69]
[68]DCB 30
[69]DCB 31
115At the time of his clinical examination, Dr Hwang said Mr Brown “was pleasant and cooperative and presented in a straightforward manner”.[70] Dr Hwang’s finding on examination was similar to that of Dr Nam and consistent with my inspection.
[70]DCB 33
116As to the consequences of Mr Brown’s injuries Dr Hwang said:
“His condition has affected the use of his right index finger in terms of movement of the distal phalanx and reduced dexterity in general. I consider that he is unable to use a power tool requiring the activation of a trigger with his right index finger. … .”[71]
[71]Paragraph [5.], DCB 34

117Dr Hwang thought that Mr Brown would be able to complete a carpentry apprenticeship. However, Dr Hwang said to continue work as a carpenter Mr Brown would need “adaptive strategies”.[72]
[72]DCB 35
118Like Dr Shan, Dr Hwang was asked to prepare a supplementary report, having been provided with the list of CoWork suggested jobs. Dr Hwang said it was his opinion that:
“… despite some persistent symptoms and deformity, any loss of function in relation to the finger does not compromise [Mr Brown’s] ability to undertake such duties.”[73]

[73]DCB 36
Dr David Fish, consultant occupational and environmental physician
119Dr Fish assessed Mr Brown on 6 April 2022 for his solicitors.
120Dr Fish obtained a detailed history of Mr Brown’s injury and treatment. Of the persisting problems with the use of Mr Brown’s right hand, Dr Fish obtained a history that:
(a)   the use of power saws, hammer drills and other powered equipment caused Mr Brown significant problems. The vibration and impact led to increased pain;
(b)   there was decreased accuracy in his work because of “incoordination” (sic) and inability to grip properly;[74]
(c)   the operation of whipper-snippers and lawnmowers aggravated the pain;[75]
(d)   at home Mr Brown had problems with coordination such as:
(i)peeling or chopping vegetables;
(ii)the finger getting caught in fabric because of the deformed fingernail, which sometimes led to Mr Brown waking in pain at night.[76]
[74]PCB 41
[75]PCB 42
[76]Ibid

121Dr Fish’s physical examination was generally consistent with Dr Nam, Dr Hwang, and my inspection.
122Dr Fish undertook a grip-strength assessment. There was a decrease in Mr Brown’s right grip strength.[77]
[77]PCB 41
123Dr Fish also said:
(a) Mr Brown had significant dysaesthesia and persistent sensory loss;[78]
[78]PCB 44
(b) by reason of Mr Brown’s physical injury he was likely to be restricted in employment and activities involving:
(i)pushing, pulling or lifting;
(ii)repetitive pushing, pulling or lifting;
(iii)repetitive or prolonged use of his right index finger and hand;
(iv)manual dexterity;[79]

(c)   Mr Brown should re-engage with hand therapy;[80]
(d)   Mr Brown was not capable of completing a carpentry apprenticeship;[81]
(e)   Mr Brown had a retained work capacity; for example, undertaking:
(i)retail;
(ii)courier deliveries.[82]
[79]PCB 44
[80]Ibid
[81]PCB 45
[82]Ibid

Mr Robbins
124Mr Robbins first assessed Mr Brown for Bayside on 26 April 2022.
125On examination, Mr Robbins recorded:
(a)   the distal phalanx was angulated laterally by 30 degrees;
(b)   the distal interphalangeal joint is fixed at about 180 degrees;
(c)   the distal pulp is relatively normal;
(d)   the fingernail is normal.[83]
I pause here to note Mr Robbins’ observations in (c) and (d) ran contrary to:
(i)the balance of the medical evidence;
(ii)my observations at the time of my inspection.
[83]Question 2, DCB 48

126Mr Robbins said Mr Brown complained of:
(a)   tenderness in the dorsum of his finger well proximal to the injury site;
(b)   altered sensation on either side of the index finger.[84]
[84]Ibid
127Mr Robbins said otherwise Mr Brown “has a full range of the rest of the joints of his fingers”.[85]
[85]Ibid
128Mr Robbins went on to say:
(a)   Mr Brown was exaggerating;[86]
(b)   that some of that exaggeration was deliberate;[87]
(c)   he doubted Mr Brown was motivated to return to work;[88]
(d)   any incapacity is due to Mr Brown’s attitude rather than the impact of the injury itself;[89]
(e)   Mr Brown’s treating surgeon either:
(i)excessively overtreated Mr Brown; or
(ii)was fraudulent for personal gain.[90]
[86]Question 3, DCB 48
[87]Ibid
[88]Question 4, DCB 49
[89]Question 7(iii), DCB 49
[90]Question 8, DCB 49

Mr Damon Thomas, plastic and reconstructive surgeon
129Mr Thomas assessed Mr Brown for his solicitors on 14 July 2022.
130In respect to diagnosis Mr Thomas said:
“Mr Brown has had a right index finger circular saw injury with compound intra-articular fractures of the distal interphalangeal joint, complete division of the flexor digitorum profundus tendon, complete division of the extensor tendon, complete division of the radial digital nerve and artery with an ischemic finger. He has required surgical repair of all the structures and a revascularisation of the finger.
He has post-traumatic issues with a deviated finger at the DIP joint which is off in an ulnar direction with reduction in sensation, reduction in movement and pain and dysfunction.”[91]
[91]PCB 49

131Mr Thomas noted that Mr Brown’s current symptoms included:
(a)   right index finger pain worse with activities or repetitive tasks;
(b)   a reduction in feeling of the finger;
(c)   a reduction in function including the finger involving manual or dextrous tasks;
(d)   inability to use power tools;
(e)   reduced range of motion;
(f)    reduced feeling.[92]
[92]PCB 50
132Mr Thomas suggested revisional surgery would be an option given the distal interphalangeal joint is angulated in an ulnar direction and the joint is unstable. Mr Thomas suggested Mr Brown may be a candidate for:
(a)   a joint stabilisation procedure; or
(b)   a joint-levelling osteotomy.[93]
[93]PCB 50
133Mr Thomas did not think Mr Brown could undertake his pre-injury role as a carpenter. In respect to suitable work, Mr Thomas said:
“I would hope that he would be able to achieve suitable employment which would require nothing involving the right index finger and hand for repetitive manual or fine dextrous tasks and this would purely be a role which would require some assessment and trial and error to work out what he can and cannot do. He has suggested he may look for training in waterproofing which is less physical and does not involve power tools but feels he would be unlikely to be able maintain this as a long-term job.”[94]
[94]PCB 51

134Mr Thomas considered Mr Brown’s restrictions to be permanent.[95]
[95]Ibid
Mr Robbins
135Mr Robbins provided a supplementary report of 26 September 2022. Mr Robbins had been asked by Bayside to review Mr Thomas’s opinion.
136Mr Robbins said:
(a)   the surgery proposed by Mr Thomas would not improve function;[96]
(b)   Mr Brown had not at any time complained about the aesthetics of his right index finger;[97]
(c)   Mr Brown did not complain of pain at the injury site. What he complained of was “factitious pain proximal to the site of injury”;[98]
(d)   Mr Brown could return to work as a carpenter and undertake all the CoWork jobs.[99]
[96]Question 1, DCB 51
[97]Ibid
[98]Ibid
[99]Question 2, DCB 52
Mr Thomas
137Mr Thomas re-assessed Mr Brown for his solicitors on 11 July 2023.
138At this time, Mr Thomas said Mr Brown’s injury:
(a)   remained unchanged;
(b)   was stable.
139Mr Thomas said Mr Brown suffered:
(a)   right index finger stiffness with reduced range of motion;
(b)   a finger which has pain at rest and also with activities and movement, and cold intolerance;
(c)   paraesthesia.[100]
[100]Question 3, PCB 54
140Mr Thomas listed a range of restrictions which were generally consistent with his previous report.
141It was Mr Thomas’s opinion that Mr Brown:
(a)   was not able to undertake his pre-injury duties;[101]
(b)   had a capacity for work which did not require significant use of his right hand for anything physical;[102]
(c)   continued to suffer mental health issues.
[101]Question 5, PCB 55
[102]Question 6, PCB 55
142Mr Thomas noted that Mr Brown was concerned about the cosmetic appearance of his right index finger/hand. Mr Thomas said:
(a)   the right index finger was shorter than the left;
(b)   there was a deviation to the ulnar side;
(c)   the fingernail was deformed.[103]
[103]Question 19, PCB 58
143Importantly, Mr Thomas concluded that Mr Brown was already suffering an element of post-traumatic arthritis in the distal interphalangeal joint.[104]
[104]Question 11, PCB 56
144Mr Thomas also said:
(a)   Mr Brown continued to suffer chronic pain in his right index finger which was made worse with anything physical and made worse in a cold environment;[105]
(b)   Mr Brown continued to suffer a range of restrictions in relation to employment or activities involving:
(i)lifting;
(ii)pulling;
(iii)prolonged use of his right index finger;
(iv)writing;
(v)manual dexterity, which is significantly affected.[106]
[105]Question 8, PCB 56
[106]Question 14, PCB 57

Mr Robbins
145Mr Robbins re-assessed Mr Brown for Bayside on 20 July 2023.
146Mr Robbins said:
(a)   he maintained his opinion that Mr Brown was exaggerating;
(b)   Mr Brown was physically capable of the CoWork jobs;
(c)   the proposed surgery to arthrodese the damaged distal interphalangeal joint to reduce pain and possibly improve aesthetics would be reasonable;
(d)   the effects of the work-related injury will cease or improve if Mr Brown receives a financial settlement;
(e)   Mr Brown’s presentation is motivated by the possibility of financial gain.[107]
[107]Questions (g) to (l), DCB 55
Dr Hwang
147Dr Hwang re-assessed Mr Brown for Bayside on 28 July 2023.
148Dr Hwang obtained a further history:
(a)   in respect to Mr Brown’s job-seeking efforts;
(b)   that Mr Brown was grieving the loss of a friend;
(c)   that Mr Brown “feels somewhat defeated”.[108]
[108]DCB 40
149Dr Hwang said that Mr Brown’s physical symptoms remained unchanged. Mr Brown’s main ongoing symptoms being:
(a)   ongoing deformity;
(b)   partial loss of sensation on the ulnar aspect of the right index finger;
(c)   some pain on knocking his right index finger;
(d)   inability to flex his right index finger.[109]
[109]DCB 42
150Dr Hwang obtained a similar history in respect to Mr Brown’s ongoing functional impairments as he had at the time of previous assessments.
151Of Mr Brown’s presentation, Dr Hwang said:
“He was once again pleasant and cooperative, although he appeared to have a somewhat flattened affect compared to his previously noted mannerisms.”[110]
[110]DCB 43

152Dr Hwang’s findings on examination were generally consistent with:
(a) the examinations undertaken by Dr Nam, Dr Fish and Mr Thomas;
(b) my inspection.
153Dr Hwang said:
“… Compared to my previous findings, my clinical findings in relation to his right index finger were identical. … .”[111]
[111]DCB 44

154In conclusion, Dr Hwang said:
(a)   Mr Brown had been having hand therapy but there had been no improvement;
(b)   he considered Mr Brown’s limitations remained as set out in his previous report;
(c)   there had been a decline in Mr Brown’s mental health.[112]
[112]Ibid
Dr Shan
155Dr Shan re-assessed Mr Brown for Bayside on 22 August 2023.
156Dr Shan obtained an updated history; in particular that Mr Brown:
(a)   was not seeing a psychologist or a psychiatrist;
(b)   was attending for hand therapy;
(c)   had not had contact with Bayside’s authorised insurer;
(d)   was not obtaining medical certificates.[113]
[113]DCB 22-23
157In respect to his mental health, Dr Shan said Mr Brown told him he had “good and bad days”.[114] Dr Shan obtained a detailed history of the mental health issues impacting upon Mr Brown’s life.[115]
[114]DCB 22
[115]DCB 24
158At the time of his mental state examination Dr Shan said:
(a)   Mr Brown was pleasant and cooperative;
(b)   Mr Brown did not become emotional;
(c)   there was mild underlying clinical anxiety and depressed mood;
(d)   Mr Brown’s thought processes were within a normal range;
(e)   there was no disorder of perception evident;
(f)    there were no clinically-significant issues of insight or judgement;
(g)   there was no disturbance of memory or concentration.[116]
[116]Ibid
159Dr Shan said:
(a)   Mr Brown continues to suffer some mental health issues;[117]
(b)   he maintained the diagnosis of mild PTSD;
(c)   he considered Mr Brown capable of the CoWork jobs with retraining;
(d)   Mr Brown did not have capacity to return to work as a carpenter by reason of his psychological injury.[118]
[117]DCB 25
[118]DCB 24-25
160Specifically Dr Shan obtained a history of Mr Brown having a debt to Chisholm TAFE consequential to his apprenticeship training. Dr Shan said his impression was Mr Brown hoped he might receive finances through the litigation processes that might help to resolve this financial issue.[119] Dr Shan went on to say it was his impression that Mr Brown was waiting for litigation to finalise before he feels ready to move on.[120]
[119]DCB 25
[120]Paragraph [(h)], DCB 26

What conclusions do I reach from the medical evidence?
161I accept:
(a)   Mr Brown suffered a very nasty injury to his right index finger in the incident;
(b)   on the same day Mr Brown underwent complex surgery.
162The medical evidence was generally consistent. The outlier was Mr Robbins.
163I do not accept Mr Robbins’ evidence.
164There are a number of reasons why I prefer other medical opinions over Mr Robbins.
165Firstly Mr Robbins’ adverse opinion of Mr Brown clearly taints the balance of his evidence. Such adverse conclusions are:
(a)   contrary to my findings on the question of credit;
(b)   contrary to observations made by other medico-legal assessors: for example, Dr Hwang, who said Mr Brown was “pleasant and cooperative”.
166I do not accept Mr Brown has deliberately exaggerated his symptoms for financial gain. While Mr Brown may be depressed, suffering PTSD and feeling aggrieved at how he had been treated by Bayside, I do not accept that has morphed into a deliberate and indeed fraudulent misrepresentation of his condition as asserted by Mr Robbins.
167Indeed, I note Mr Robbins’ allegations of improper or fraudulent behaviour are not limited to Mr Brown. Mr Robbins made similar assertions against Professor Rozen.[121] Such allegations are of the most serious nature. As against Professor Rozen, there is no detail or further justification other than the bold assertions which Mr Robbins made.
[121]Question 8, DCB 49
168As against Mr Brown, I do not accept Mr Robbins’ allegations to be either fair or balanced. Indeed they are highly prejudicial and tend to bias.
169Secondly I do not consider Mr Robbins gave any or any proper weight to:
(a)   the obvious impairment which Mr Brown has in closing his right index finger to try to form a fist and/or grip items;
(b)   his impaired dexterity.
170Thirdly Mr Robbins’ opinion is against the weight of the medical evidence. While there is some difference of opinion in the balance of the medical evidence in respect to the nature and degree of the consequences flowing from the impairment which Mr Brown suffers, the balance of the medical evidence is generally consistent and is confirmatory that Mr Brown:
(a)   has an ongoing impairment;
(b)   has vocational restrictions to a greater or lesser degree.
171While the assessment of medical evidence in such applications should never become an accounting exercise where the greater number of supportive opinion wins the day, it is necessary for me to put Mr Robbins’ evidence and conclusions into the context of the evidence of:
(a)   Dr Nam and Mr Thomas, plastic and reconstructive surgeons;
(b)   Dr Fish and Dr Hwang, occupational physicians;
(c)   Mr Bruce, the treating physiotherapist who specialises in hand therapy.
172I note Mr Robbins’ concession in his most recent report that the surgery suggested by Mr Thomas may reduce Mr Brown’s pain and was clinically reasonable. This conclusion is inconsistent with the thrust of much of his other evidence.
173Of the balance of the medical evidence, it is Mr Thomas’s evidence which I found to be of the greatest assistance. Mr Thomas:
(a)   outlined in detail the very significant nature of the injury which Mr Brown suffered on the day of the incident;
(b)   detailed the extensive surgery which Professor Rozen undertook;
(c)   made observations and findings in respect to the impaired right index finger/hand function similar to those which I observed in the course of the inspection, and based his evidence on such observations and findings;
(d)   importantly outlined the joint instability and the development of post-traumatic arthritic change in Mr Brown’s right index finger;
(e)   provided an explanation for Mr Brown’s ongoing pain;
(f)    set out in detail the consequences which he accepts Mr Brown has suffered by reason of his right index finger/hand injury and which he will continue to suffer into the future.
174From the medical evidence I accept:
(a)   there is an organic basis for Mr Brown’s complaints of ongoing pain;
(b)   there is an organic basis for Mr Brown’s ongoing complaints of impaired function and dexterity;
(c)   Mr Brown is left with:
(i)a stiff right distal interphalangeal joint;
(ii)a finger which is angulated to the right;
(iii)impaired sensation consistent with nerve damage flowing from the injury to the right side of the index finger from the proximal interphalangeal joint;
(iv)an inability to completely bend and/or form a fist with the right index finger and/or fully grip;
(v)the loss of dexterity to the right index finger and consequently to the right hand function;
(vi)a painful right index finger.

(d)   the level of ongoing symptoms are such that further surgical procedures are clinically indicated.
175I note no criticism was made by any of the medical practitioners of Mr Brown’s decision not to undergo this further surgery. Indeed, no criticism was made by Bayside. I accept any surgery has inherent risk. Mr Brown said he was not intending to have the proposed surgery. I accept that decision to be reasonable.
176In the circumstances, I accept Mr Brown’s injury to be stabilised and permanent.
177Moving now to the psychological injury.
178The evidence in respect to Mr Brown’s psychological injury came primarily from Dr Shan. For completeness however, I note that Mr Bruce, Dr Nam, Dr Hwang and Mr Thomas all made note of Mr Brown’s psychological distress. However, the assessment of such injury is outside their area of expertise.
179Based on the evidence of Dr Shan (which was obtained by Bayside and not contradicted) I accept that Mr Brown suffers:
(a)   mild PTSD;
(b)   mild underlying clinical anxiety and depressed mood.
180While there have been other life issues impacting upon Mr Brown’s mental health, I accept there is an ongoing contribution which flows from the incident.

General observations in respect to the serious injury test
181Before moving to assess each of Mr Brown’s applications, I make some general comments in respect to the serious injury test.
182It is Mr Brown who has the onus of proof.
183To establish serious injury, the threshold is high.
184As set out in Stijepic v One Force Group Aust Pty Ltd & Anor,[122] while the evidence may disclose pain and suffering consequences which are both marked and significant, for Mr Brown to be successful I have to be persuaded that the consequences due to the right index finger/hand injury can fairly be described as being “more than significant or marked” and being “at least very considerable”.
[122][2009] VSCA 181
185As the Court of Appeal said in Ellis Management Services Pty Ltd v Taylor,[123] in range cases:
“The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range. … .”[124]
[123][2013] VSCA 326
[124](Ibid) at paragraph [59]
186As a part of my analysis, I must give consideration to not only what it is that Mr Brown says that he has lost, but also what it is that he has retained.[125]

[125]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
187The process to be followed in the assessment of pain and suffering consequences was considered by the Court of Appeal in the much-quoted case of Haden Engineering Pty Ltd v McKinnon.[126] The observations made by Maxwell P provide me with assistance in respect to the tasks which I am to undertake in the completion of this aspect of my determination.[127]
[126](2010) 31 VR 1
[127](Ibid). See in particular Maxwell P at paragraphs [9]-[17].

Is Mr Brown’s right index finger/hand injury a serious permanent impairment or loss of body function for pain and suffering purposes?
188Moving now to my assessment of Mr Brown’s paragraph (a) application.
189I note:
(a)   Mr Brown is right-hand dominant;
(b)   Mr Brown had no pre-existing impairment or problems with his right index finger/hand.
190Referring firstly to pain.
191I accept that:
(a)   Mr Brown continues to suffer pain in his right index finger which is organically based. The distal interphalangeal joint is unstable.[128] Mr Brown already has post-traumatic arthritic changes to that joint. There is pain:
(i)on movement and activity;
(ii)when the finger is knocked;
(iii)when the finger is exposed to vibration;
(iv)at times at rest.
[128]I make specific reference to the findings and opinion of Mr Thomas previously referred to in this judgment.

(b)   At times the pain is “sharp pain”.[129]
(c)   Any activity which places stress on the right index finger will lead to increased pain.
(d)   Mr Brown continues to use over-the-counter painkilling medication such as Panadol, Nurofen, or Panadeine Forte.
(e)   Mr Brown has impaired sensation to the right half of the right index finger from the proximal interphalangeal joint.
(f)    Mr Brown has sensitivity to cold at the end of the finger.
(g)   Mr Brown has an ongoing unpleasant feeling of tightness in the right index finger.
[129]Paragraph [15], PCB 12
192The nature and extent of the ongoing pain and impairment of function is such that Mr Thomas has suggested further surgical procedures are clinically justified.
193Bayside said the lack of ongoing treatment, and in particular hand therapy, tended against a finding of serious injury.
194I do not give this submission great weight. I accept:
(a)   Mr Brown continues to take painkilling medication;
(b)   the hand therapy at this stage would not lead to a resolution of Mr Brown’s injury and the ongoing consequences;
(c)   pain management has been suggested but there is no evidence that such treatment would resolve Mr Brown’s injury or the consequences;
(d)   absent surgery Mr Brown will have to live with the ongoing condition and consequences.
195Mr Brown is a young man. He has already endured six years of pain and dysfunction. He has decades of life in front of him. I accept he will continue to suffer ongoing pain and dysfunction.
196Living with the persistent pain, discomfort, and impaired sensation is in itself a very significant consequence.
197I now move to loss of movement and dexterity.
198I undertook a careful inspection of Mr Brown’s right index finger and the consequential loss of range of movement which flows from his injury. Mr Brown clearly has impaired movement in his right index finger. This impacts on his ability to form a fist and grip. I accept the results of Dr Fish’s objective testing that Mr Brown has impaired grip strength.
199I accept that Mr Brown has impaired dexterity. I accept this loss of dexterity impacts him in many ways every day. I will make specific reference to some of these consequences later in this judgment.
200I accept the impaired dexterity, the impaired movement and the impaired grip capacity to be very significant consequences.
201Moving now to work.
202Firstly turning to Mr Brown’s capacity to work as a carpenter. There is dispute among the medical evidence as to whether or not Mr Brown could in fact return to work as a carpenter. Some of the medical evidence was to the effect that Mr Brown is not able to reliably undertake the necessary tasks to work as a carpenter. Other medical evidence was to the effect that with modification it was possible.
203Having considered all the evidence I do not accept Mr Brown is able to work as a carpenter in a reliable, consistent, efficient manner and within reasonable pain constraints. There are a range of impediments which, taken as a whole, I accept make it just a step too far. While Mr Brown may have the capacity to undertake one-off tasks or indeed various tasks for short periods of time, that is not conclusive of capacity to work as a carpenter. I accept Mr Brown’s ongoing impediments include:
(a)   pain;
(b)   the impaired grip function;
(c)   the loss of dexterity;
(d)   the impact of vibration;
(e)   the impaired capacity to use tools such as drills and circular saws, just to name a few;
(f)    the impaired capacity to pull, push and lift on a regular and sustained basis;
(g)   the impaired capacity to repetitively use his right index finger for prolonged periods;
(h)   impaired capacity to write or use a keyboard;
(i)    the inability to be consistently accurate;
(j)    the impact of cold.
204I am assisted in my conclusions by the evidence of Mr Thomas.
205I accept by reason of his right index finger/hand injury, Mr Brown’s career as a carpenter is lost to him.
206As far as paragraph 15 of Haden allows, in my assessment of pain and suffering consequences I give heed to the loss of Mr Brown’s career as a carpenter.
207For completeness I note that Bayside relied upon Mr Brown’s ongoing work for approximately twelve months after the incident. On this issue I prefer the evidence of Mr Brown to that of Mr May. I accept Mr Brown:
(a)   Was an apprentice. He was not under pressure to undertake the full responsibility and demands of a qualified carpenter.
(b)   Was not undertaking a full range of duties.
(c)   Was reliant upon workmates to “cover for him”.
(d)   Had to make significant modifications to the way he went about his work.
(e)   Suffered pain as a consequence of aspects of the work he undertook.
(f)    Pushed himself to continue working with the hope of completing his carpentry qualification.
208Moving now to sleep.
209Apart from a complaint that his sleep was sometimes impacted when the deformed fingernail caught in his sheets, there was no real focus by Mr Brown on sleep impairment. I do not give any real weight to this consequence.
210Going now to activities of daily living.
211I accept Mr Brown is able to live and function independently. However I accept there are many aspects of his daily life which are impacted by his loss of dexterity, impaired grip and increased pain consequential to activity.
212I shall detail examples of such consequences.
213Turning to household and domestic activities. I accept Mr Brown is impacted when:
(a)   peeling vegetables;
(b)   using a keyboard and mouse;
(c)   shaving;
(d)   opening tight or new jars;
(e)   carrying shopping bags;
(f)    doing up and undoing buttons;
(g)   handwriting;
(h)   shaking hands.
This list is not exhaustive.
214While individually each consequence may not be great in its own right, I accept the cumulative impact to be a constant impediment which will have a wearing effect on Mr Brown.
215Moving now to sport and recreation.
216I consider this to be an important aspect of Mr Brown’s pain and suffering application.
217Mr Brown said, and I accept, his sport and recreational activities are impacted in important and significant ways. For example:
(a)   His capacity to participate in gaming. Mr Brown said he was no longer able to participate as he had. He was a very keen gamer. Because of the impact of his injury he said he plays very little now. Mr Brown said this was a very significant loss to him. He said he misses his gaming a lot.
(b)   His inability to undertake a range of exercises at the gym which require the use of his right hand.
(c)   He is no longer able to go rock climbing. The impact of his right index finger/hand injury on this pursuit is obvious.
Again the list is not exhaustive.
218I accept that each of these activities of daily living are genuinely impacted. I accept Mr Brown’s loss of capacity to participate in such activities as he had to be a significant loss.
219I also accept that in general terms Mr Brown’s overall enjoyment of life has been impacted by his pain, pain-related restrictions and loss of dexterity. Every day Mr Brown will be impacted. This will be lifelong.
220As I have already noted in this judgment I must of course take into account that which Mr Brown has retained. For example Mr Brown:
(a)   has a capacity to undertake suitable employment;
(b)   continues to independently perform most activities of daily living;
(c)   with some level of pain and restriction was able to undertake those activities shown in the video.
221In assessing Mr Brown’s application I am conscious of the need to assess his right index finger injury/hand injury in comparison to other cases. Indeed Bayside referred me to a comparative case which they said I should take into account.[130]
[130]Paragraph [29] of defendant’s written submissions
222There have over the years been many finger/hand injury cases before this court. I have undertaken a review. They are too numerous to reference them all in this judgment. I refer to a sample:
(a)   TTB SMS Pty Ltd v Reading:[131]
The applicant suffered injury to his right little and ring fingers, which were surgically repaired. The applicant returned to work. The applicant took over-the-counter medication once or twice per week. The application was unsuccessful.
(b)   Porto v Design Line Cabinets Pty Ltd (Deregistered) & VWA:[132]
The applicant suffered partial amputation to the ends of his middle and ring fingers of his right hand. The applicant was successful.
(c)   MacDougall v Victorian WorkCover Authority:[133]
The applicant suffered a crush injury to the left index finger. He underwent surgery to repair the finger. He returned to work. The application was unsuccessful.
(d)   Sorrentino v Victorian WorkCover Authority:[134]
The applicant suffered a laceration to her left little finger resulting in damage to the sensory nerve. She was twenty-four years of age at the time of the injury. The application was successful.
[131][2020] VSCA 203
[132][2012] VCC 1645
[133][2021] VCC 1292
[134][2022] VCC 581
223I have had cause to determine numerous applications involving finger/hand injuries. I refer to:
(a)   Razai v Victorian WorkCover Authority:[135]
The applicant suffered an amputation of his right index finger when it was struck by a band saw. Surgery was undertaken to reattach the finger. He was a young man. The application was successful.
(b)   Robinson v Victorian WorkCover Authority:[136]
The applicant’s left thumb was amputated through the middle and bottom sections after being struck by the blade of a saw. Surgery was undertaken to reattach the amputated section. While the amputated section was viably reattached, the applicant continued to suffer ongoing pain, impaired function and disfigurement. The application was successful.
(c)   Hussain v Victorian WorkCover Authority:[137]
The applicant sustained an injury to his right index finger. It was crushed by a piece of steel. The applicant said he had ongoing pain, impaired sensation and impaired function. The application was unsuccessful.
[135][2022] VCC 1732
[136][2023] VCC 1948
[137][2023] VCC 2283
224While I am assisted by each of the matters referred to, it is of course trite to say that each application must be determined on its own facts and circumstances.
225Mr Brown is twenty-six years of age. He will endure ongoing pain in his right index finger for the rest of his life. He has been left with permanent loss of movement, dexterity, and strength. This will impact him every day in many different ways.
226I accept that the consequences to Mr Brown do constitute a serious injury pursuant to paragraph (a). Leave will be granted for Mr Brown to pursue pain and suffering damages.

Is the disfigurement which Mr Brown suffers a serious injury?
227I now move to Mr Brown’s paragraph (b) application.
228Firstly I will set out my observations of the disfigurement.
229I considered the disfigurement carefully at the time of the inspection. I also had the benefit of a series of photographs.[138]
[138]See in particular the series of photographs at PCB 85-91, being plaintiff Exhibit “D”.
230As to the disfigurement I note:
(a)   Mr Brown’s right index finger is approximately 1 centimetre shorter than his left;
(b)   the right index finger at the distal interphalangeal joint deviates to the right;
(c)   there is loss of pulp at and above the distal interphalangeal joint;
(d)   the fingernail is deformed;
(e)   there is some scarring.
231Mr Brown said in his evidence that the disfigurement led to levels of self-consciousness and embarrassment. While that may be so I formed the view that this did not in reality impact Mr Brown greatly. In the witness box Mr Brown was circumspect about the disfigurement. That can be contrasted to his loss of body function and dexterity, which I accept has a very considerable impact on him.
232Having carefully looked at Mr Brown’s finger, both at the time of the inspection and generally while he was in the witness box, I do not consider the level of disfigurement to be so obvious that it immediately brought attention to it.
233Moving now to the legal principles specific to disfigurement applications.
234The seminal Court of Appeal decision on disfigurement is Transport Accident Commission v Garcia.[139] The Court of Appeal helpfully provided a very detailed analysis of the relevant principles, particularly at paragraphs 28 through to 36. Regard must be had to the location, size and degree of obviousness of the disfigurement.
[139][2015] VSCA 225
235As in Mr Brown’s paragraph (a) application, I am conscious of the need to assess his disfigurement in comparison with other cases. Again, over the years there have been many disfigurement applications before this court. I have undertaken a review. Again, they are too numerous to reference all in this judgment. I refer to a sample:
(a)   In Garcia the application involved scarring to the applicant’s left upper arm. It was said to be plainly large, unsightly and in a prominent position. The application was successful.
(b)   In Bustos v VWA[140] the application involved injury to the index finger of the applicant’s right hand. There was raggedness in the healed area of the flap beneath the tip and a faint scar. The application was unsuccessful.
(c)   In Kalinic v Acron Engineering Pty Ltd[141] the applicant suffered scarring to his left leg. The scarring was large measuring 17 centimetres x 2 centimetres. It was said to be well healed. The application was unsuccessful.
(d)   In Griffiths v Transport Accident Commission[142] the applicant suffered scarring to his face. The scars were said to be prominent and obvious. The application was successful.
(e)   In Kaos v XL Premix Pty Ltd[143] the applicant suffered scarring over his right wrist. The scars were prominent and obvious. I determined that the disfigurement did constitute a serious injury.
(f)    In Nelson v Transport Accident Commission[144] the applicant suffered scarring to her left shoulder. This scar measured approximately 9.5 centimetres and was visible and well healed. I determined that the disfigurement did not constitute a serious injury.
(g)   In Na v Victorian WorkCover Authority[145] the applicant suffered a partial amputation to his left thumb with some associated scarring at a skin-donor site. I determined that the disfigurement did not constitute a serious injury.
[140][2021] VCC 1531
[141][2012] VCC 1052
[142][2022] VCC 454
[143][2023] VCC 1229
[144][2023] VCC1575
[145][2024] VCC 426
236Referring back to Mr Brown’s disfigurement.
237While I accept Mr Brown’s right index finger is disfigured and I accept that disfigurement may be “marked” or “significant”, I do not consider the disfigurement is so obvious and unsightly that it is “very considerable”. This aspect of Mr Brown’s application fails.

Is Mr Brown’s psychological injury a serious mental or behavioural disturbance or disorder?
238Moving now to Mr Brown’s application pursuant to paragraph (c).
239I accept that Mr Brown has suffered a psychological injury as a result of the incident. Specifically, I accept Dr Shan’s diagnosis that Mr Brown suffers:
(a)   mild PTSD;
(b)   mild clinical anxiety and depressed mood.
I note such diagnosis is consistent with the observations made by Mr Bruce, Dr Nam, Dr Hwang and Mr Thomas.
240To satisfy the paragraph (c) test, Mr Brown’s condition must be:
(a)   severe;[146] and
(b)   permanent.[147]
[146]See for example Mobilio v Balliotis [1998] 3 VR 833 and Transport Accident Commission v Katanas (2017) 262 CLR 550.
[147]See for example Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and particularly at paragraphs [19] and [32]-[34].
241Going firstly to Mr Brown’s evidence in respect of the consequences of his psychological injury.
242Mr Brown’s first affidavit is silent as to any psychological consequence other than embarrassment flowing from the disfigurement of his right index finger.[148]
[148]Paragraph [24], PCB 13
243The reference to psychological injury in Mr Brown’s second affidavit is limited to:
(a)   the effect which the stabbing of his friend had on his mental health;[149]
(b)   his worry about his job after his return to work.[150]
[149]Paragraph [8], PCB 27
[150]Paragraph [11(d)], PCB 28
244There was no reference to psychological injury in Mr Brown’s third affidavit.
245The lack of any reference to primary psychological injury and consequences flowing from the incident in Mr Brown’s affidavit evidence is, I accept, important to my assessment. It tends against serious injury.
246In the course of Mr Brown’s oral evidence no reference was made to psychological injury and/or consequences. Again this tends against serious injury.
247Mr Brown in his written submissions said I should accept the evidence of Dr Shan.[151]
[151]Paragraph [30], page 9, plaintiff’s written submissions
248Mr Brown said that Dr Shan’s evidence established his psychological injury precluded him from returning to work as a carpenter and that in its own right satisfied the serious injury test.[152]
[152]In particular Mr Brown relied upon the observations of the Court in Ellis Management Services Pty Ltd v Taylor (op cit).
249In the circumstances of this case I do not accept this submission to be conclusive.
250Bayside said that the balance of the evidence tended against a finding of serious injury. I agree. I note:
(a)   Mr Brown did not, in either his affidavit evidence or in his oral evidence, provide any detail in respect to the alleged consequences flowing from his primary psychiatric injury. Specifically when explaining why he was unable to work as a carpenter Mr Brown made reference only to his right index finger/hand injury.
(b)   It was conceded by Mr Brown he had not received any treatment of any kind for his primary psychiatric condition flowing from the incident. While I accept the lack of treatment in itself is not necessarily fatal to a paragraph (c) application,[153] I consider it, in the circumstances of this case, to be a matter which I should take heed.

A: Well, no. It is something I am looking …..
Q:No.

A: I think I can.
Q:Yes. So that’s a job that you thought you could do and what stage were you at with getting that job? You said perhaps February you might get it or .....
A:So I’ve applied for the free TAFE side of it because I’m unable to pay for it for, like – because my financial means and stuff. Done my numeracy and literacy test for there and I’m just waiting to hear the response back.

Q:    Which TAFE?
A:    Chadstone. Holmesglen.
Q:    And how long will the course be?
A:I think it’s six to seven months if it’s broken up. If it’s done out, like, every day every week I think it’s only three to four.
Q:And do you work with one of these waterproofing companies while you’re studying that?

A: No. Like I haven’t started studying yet.”[199]
[199]T27, L10 – T28, L40
311Secondly in the context of being cross-examined about his employment options Mr Brown said:
Q:“So this has been going on for some time. You’re waiting to hear if you’re accepted, and then if you are, you would spend, what, six months doing the course?
A:Six to seven months I think it is, yes.
Q:And what does – just tell us what you know of what subjects you would do in the course of study for six months?
A:I haven’t actually got to look at, like, the – like, until you’re enrolled you don’t actually get to have a look at each component and what’s involved in it. I just assumed, like, everything that I spoke about before, like, the membraning and stuff like that, epoxying, caulking.
Q:Everything – is this to treat damp, is it, as well?
A:It could be as well, yes. That could definitely be a part of it. Even mould repair and stuff like that, mould removal.
Q:Six months – yes.
A:Could be.
Q:Six months. What, you would go there, go to the TAFE, you attend - - -
A:Yes. Like, I would. Yes.
Q:And how many days a week?
A:I think it’s three one week and then four the next.
Q:Right.
A:They do it in weird little blocks.
Q:Obviously, you would have work to take home and do.
A:I actually don’t know.
Q:You don’t know?
A:I’m not sure.”[200]
[200]T41, L20 – T42, L15

312While Mr Brown expressed a degree of enthusiasm for the waterproofing course I am troubled by his lack of direct knowledge and his level of understanding of what is actually involved in both the course and the job itself. I am concerned his enthusiasm is aspirational rather than realistic.

My analysis
313Moving now to my analysis.
314As urged by Bayside I shall at first instance undertake an analysis based on the “precise earnings” in evidence.
315Firstly I go to my assessment of Mr Brown’s “without injury” earnings.
316I accept that Mr Brown would but for his injury:
(a)   have completed his apprenticeship;
(b)   now be working as a qualified carpenter.
317I gain comfort in this conclusion given:
(a)   Mr Brown’s work at McDonald’s for a period of some two years from age fourteen years and nine months. I accept this shows Mr Brown’s strong work commitment from an early age.
(b)   Mr Brown left school to commence and undertake the carpentry apprenticeship with Bayside. He was committed to this career option.
(c)   Mr Brown’s endeavours to return to work after the incident notwithstanding the ongoing problems which he had with his right index finger/hand injury.
(d)   Mr Brown had completed a significant portion of his apprenticeship prior to the termination of his employment with Bayside.
(e)   Mr Brown’s stated desire to work as a carpenter.
(f)    Mr Brown’s stated desire to progress to become a builder.
318Having accepted Mr Brown would now be working as a carpenter what should I accept most fairly represents his “without injury” earnings?
319Bayside said I should accept the comparative earnings of carpenters who worked for them between the date of the incident and the hearing of the application. Bayside said this was the best evidence.
320In support of this submission Bayside tendered the payroll records for Mr Trent Waddington and Mr Darren Williams.[201]
[201]Exhibit 6
321Bayside said the Court should accept that Mr Brown’s “without injury” earnings, based on these materials, is $79,137.82 per annum.
322I was not provided with any detailed explanation of:
(a)   who Mr Waddington and Mr Williams are (for example their age, educational achievements, qualifications and work history);
(b)   the nature of the work they are currently undertaking;
(c)   their ambitions within the building industry and generally.
323Having said that no challenge was made by Mr Brown to Bayside’s assertions that $79,137.82 properly represents the current per annum earnings of a carpenter employed by Bayside.
324Mr Brown said I should prefer the evidence of Mr O’Hearn and base my conclusions on his figures.
325Mr O’Hearn said that a carpenter working in construction, based on the CFMEU EBA, would be earning no less than $1,934.64 per week plus leave loading and RDO loadings. On my calculations this equates to a base rate annual earning of no less than $100,601.28.
326Mr O’Hearn also said that:
(a)   most carpenters generally work six days per week;
(b)   night work was available in construction at double time.[202]
[202]Paragraph [7], PCB 21
327There is other evidence in respect to the potential earnings of a carpenter.
328Ms Clarke in her evidence:
(a)   Referenced generic labour market research. She said the most compatible “real world” occupation identified as suitable for Mr Brown was not an exact fit for the ANZSCO job code which she applied. Ms Clarke nevertheless adopted the “closest classification”, which she said resulted in an earnings rate of $80,964.[203]
(b)   Attached a job advertisement from seek.com.au. The advertisement suggested a pay rate in the range of $35-$49.99 per hour.[204] On my calculations based on a thirty-eight hour week this gives a pay range of $69,160 per annum to $98,780 per annum.
[203]DCB 117
[204]DCB 123
329Ms Clarke provided no explanation why either of the options which she sourced ought properly apply to Mr Brown.
330Ms Morgan, in her first report, referred to the average pay for carpenters in Victoria. It is $94,329 per annum.[205] No challenge was made by Bayside that the figure of $94,329 did not represent the average base rate earnings for qualified carpenters in Victoria.
[205]PCB 76
331Ms Morgan provided a supplementary report accepting Mr O’Hearn’s evidence. That is, a carpenter working on a commercial construction site could earn $1,934.64 per week.[206]
[206]PCB 79
332For the purpose of the “precise earnings” approach I am therefore left with a range of options in respect to Mr Brown’s “without injury” earnings. The range varies considerably:
(a)   The highest, no less than $100,601.28, based on Mr O’Hearn’s evidence. Indeed working six days per week or undertaking some night work would increase that yearly wage significantly. On my rudimentary calculations a salary of $120,000 to $150,000, perhaps more, would be possible.
(b)   A range of $69,160 to $98,780 based on Ms Clarke’s research.
(c)   $94,329, being the average earnings in Victoria for a carpenter, as identified by Ms Morgan.
(d)   $79,137.82, based on the comparative earnings of a carpenter employed by Bayside.
This begs the question whether there is in reality precise evidence as asserted by Bayside.
333I pause here to note the observations made by the Court of Appeal in Margriplis-Hampton v Spendwatt Pty Ltd[207] when undertaking a similar task as I am called upon to complete. The court made specific reference to:
(a)   the difficulty to obtain or to assess persuasive evidence as to what a young person would have done or earned if they had not been injured;[208]
(b)   the need for the court in such applications not to engage in impermissible speculation;[209]
(c)   that an assessment of loss of earning capacity may often have to be made on the basis of imperfect evidence and may require broad assessments.[210]
[207][2022] VSCA 15
[208](Ibid) at paragraph [16]
[209]Ibid
[210]Ibid
334Returning to the “without injury” earnings options which are before me.
335Firstly Mr O’Hearn’s evidence.
336I accept there are very significant construction projects currently being undertaken in Victoria. I do not accept Bayside’s assertions in their written submissions that there has been, in construction, an “economic downturn”.[211] That assertion has no proper basis.
[211]Paragraph [10] of defendant’s written submissions
337The real problem I have in accepting Mr O’Hearn’s evidence is that there is no direct evidence from Mr Brown that, but for his injury, he would have sought work on such construction projects which result in above-average earnings of the type identified in Mr O’Hearn’s evidence. While that may be a possibility, absent further evidence, that is as far as I am prepared to take it on the “precise earnings” approach.
338Moving to Ms Clarke’s evidence.
339The figures put forward by her vary significantly. Ms Clarke provided no guidance as to which, if any, of her suggested figures should be preferred and why. Indeed she noted the job codes which she adopted were not an exact fit to Mr Brown’s potential real-world occupation. I do not accept Ms Clarke’s research assists me on the “precise earnings” approach.
340Referring now to the earnings of the Bayside carpenters.
341I accept the earnings of co-workers have often been used in common law cases to be representative of what an injured worker may have earned had they continued in employment with that particular employer. However, it was not put, nor do I accept, that Mr Brown would have necessarily continued in his employment with Bayside once he completed his apprenticeship.
342There was clearly a fractious relationship between Mr May and Mr Brown.
343While it is a possibility that Mr Brown would have continued to work at Bayside, in the circumstances I have very significant doubts. I consider it more likely that Mr Brown, at the time of the hearing, would have been employed elsewhere.
344Further it was not put, nor was it explained in the course of the application, why I should accept Mr Brown would have necessarily earnt at the same rate as either Mr Waddington or Mr Williams. I do not accept the comparative earnings of the co-workers in the circumstances of this case most fairly represent Mr Brown’s “without injury” earnings on this approach.
345It is clear that the earnings of a carpenter fluctuate very significantly. I am conscious had Mr Brown not been injured and having completed his apprenticeship in or about 2020, he would now have approximately four years’ experience as a qualified carpenter.
346Turning now to the average earnings figure for carpenters set out by Ms Morgan. I am attracted to this figure. An average-earnings calculation represents the level of earnings which qualified carpenters across the spectrum of employment options would be likely to earn. Such a figure takes into account the totality of employment options available to carpenters in Victoria.
347In the circumstances of this application and being fair to both parties, I accept $94,329 is the most appropriate figure to adopt if the “precise earnings” approach is to be applied.
348That then takes me to the next issue: Mr Brown’s “with injury” earning capacity using a “precise earnings” approach.
349I move firstly to the four CoWork job options.
350I do not accept that any of the four CoWork job options identified by Ms Clarke are in fact realistic “with injury” job options for Mr Brown. Mr Brown has limited education and very limited vocational experience. To suggest that Mr Brown would make the transition to such senior positions, all of which require significant training, experience and expertise, is in my assessment neither credible nor helpful. On the kindest interpretation the four CoWork job options are aspirational. On a more critical assessment they are totally unrealistic.
351Each would require significant experience in the construction industry and a level of seniority and skills which Mr Brown simply does not possess, nor do I consider are reasonably achievable by him in the foreseeable future.
352Bayside, in their written submissions, did not seek to pursue any of the four CoWork job options. I consider that was appropriate. I will not take an analysis of the four CoWork job options any further in this judgment.
353That then leaves the waterproofing job.
354In Bayside’s written submissions it was the waterproofing job option which was their key focus. Bayside said:
(a)   Mr Brown was to undertake the waterproofing course;
(b)   I should accept that Mr Brown will successfully complete that course;
(c)   I should accept that, having completed the course, Mr Brown had the physical capacity to fulfil the demands of the job;
(d)   working in the job as a waterproofer Mr Brown would earn $72,020;
(e)   Mr Brown would not be losing the requisite 40 per cent.
355Let me consider the merits of such submission.
356Counsel for Mr Brown said the waterproofing job remained untested. Mr Brown’s counsel submitted that participating in a TAFE course which had yet to commence did not translate to a capacity to perform such work on a consistent and reliable basis. Indeed in Mr Brown’s written submissions his counsel submitted that, realistically, by reason of Mr Brown’s right index finger/hand injury, Mr Brown will find it hard to obtain and retain any job throughout his entire working life and by inference that included a waterproofing job.[212]
[212]Paragraph [56] of plaintiff’s written submissions
357Mr Brown in his oral evidence said that he:
(a)   was aiming to complete the waterproofing course;
(b)   thought he could cope with such work.
358Of Mr Brown’s capacity to complete the waterproofing training course, I note:
(a)   Mr Brown is relatively uneducated. He did not complete Year 12. Mr Brown was the self-confessed “class clown”; this in the context of a suggested ADHD condition.
(b)   Having said that, Mr Brown had completed the academic requirements of his carpentry apprenticeship up to the time of the incident. Further I accept that, but for his injury, he would have completed the balance of the requirements to become a qualified carpenter.
(c)   Mr Brown considered he had the capacity to progress in his career to become a builder.
(d)   Bayside said, in the course of the application, Mr Brown presented as articulate and competent.[213]
[213]Paragraph [19] of defendant’s written submissions
359On balance I accept Mr Brown has the capacity to complete the academic-training aspect of the waterproofing course.
360That takes me to Mr Brown’s capacity to undertake such work.
361There was no evidence before the Court from any witness who was experienced in the waterproofing industry and who could detail precisely what the physical demands and requirements of the proposed waterproofing job in fact are. Specifically, what the demands would be on Mr Brown’s right index finger/hand. At best, based on the cross-examination of Mr Brown, there was only a very general and vague reference to the demands of this work.
362Given the findings which I have already outlined in this judgment[214] I am concerned in respect to Mr Brown’s capacity to reliably and consistently undertake the physical demands of such work. I anticipate this work would require the repetitive use of Mr Brown’s right and dominant hand to undertake various physical tasks. This being the very type of work which Mr Thomas said,[215] and I accept, as being problematic.
[214]See paragraphs [133], [141], 144, [173], [174], [191] and [203] of this judgment.
[215]See specifically paragraphs [133] and [271] of this judgment.
363Indeed Mr Brown, when being assessed by Mr Thomas, expressed his concern about his capacity to undertake waterproofing work.[216] This of course must be contrasted to Mr Brown’s oral evidence where he said he thought he did have the capacity to undertake the waterproofing job.
[216]See paragraph [133] of this judgment.
364I have no evidence either way as to the level of research which Mr Brown had undertaken in respect to the precise physical demands of such a job. I remain troubled whether or not a waterproofing job is in fact a realistic option.
365Without finally accepting Mr Brown has the capacity to undertake the waterproofing job on a consistent and reliable basis, for the purposes of the “precise earnings” approach I will proceed on the assumption that the waterproofing job is a viable option.
366The question then becomes, on the assumption that Mr Brown does have the capacity to work as a waterproofer:
(a)   what do I accept most fairly represents his “with injury” earnings in such a position;
(b)   does that represent a 40 per cent loss or not?
367There is conflicting evidence.
368Bayside said the average earnings of a waterproofer is $72,020.[217] Bayside relied upon the evidence of Ms Bryant.
[217]Paragraphs [25]-[27] of defendant’s written submissions
369To assess the merit of this submission I need to analyse Ms Bryant’s evidence in greater detail.
370Ms Bryant, in her one-page report of 23 January 2024,[218] set out two options for the earnings of a waterproofer.
[218]Exhibit 7
371The first option was for a “full-time waterproofing applicator”. This was a job advertised on seek.com.au. This position offered a wage range between $80,000-$120,000 per year. Bayside, in their written submissions, did not reference this position or urge the Court to adopt this option. I consider that was appropriate.
372There was no analysis of just what the role of a “waterproofing applicator” may or may not be. Indeed, whether the course which Mr Brown hopes to complete would qualify him for such a position was not put, nor was it established. How a one-off job advertisement may or may not apply to Mr Brown’s circumstances, I do not know. It is speculative. In the circumstances, I do not give any weight to the job advertised on seek.com.au and referred to by Ms Bryant.
373Moving to Ms Bryant’s second option.
374It is this option which Bayside, in their written submissions, urged me to adopt. Ms Bryant had undertaken research sourced and extracted from, “Job Markets Australia”. Ms Bryant said the “closest ANZSCO category code available” for a waterproofing worker was a “8214-12 Home Improvement Installer”.[219]
[219]Exhibit 7
375Just what a “Home Improvement Installer” may or may not be is a mystery to me. There was no evidence. Certainly on a close analysis of Ms Bryant’s evidence it does not establish what Bayside, in paragraph 26 of their written submissions, assert.
376That is, Mr Brown’s “with injury” earnings should be accepted as $72,020.
377I do not accept there is a proper basis for Bayside’s assertion that a waterproofer would in fact earn on average $72,020. That is what a “Home Improvement Installer Category 8214-12” (whatever that might be) is said to earn.
378There is no evidence, and I do not accept that a “Home Improvement Installer” is one and the same as a person who may complete the course in which Mr Brown has enrolled.

379On the face of the title “Home Improvement Installer”, the range of work would seem likely to go well beyond waterproofing work. Again I do not know. There is just no evidence. At best this is speculation. On a less generous interpretation it is potentially misleading the Court.
380I do not accept Ms Bryant’s evidence reliably establishes, as contended by Bayside, that Mr Brown would be earning $72,020 per annum should he complete the waterproofing course.
381This takes me to the evidence of Ms Morgan. Ms Morgan said:
“· The current wage rate for a Waterproofing Worker
I have provided the appropriate award rate as from a recruitment perspective a worker generally re-entering the workforce with a restricted capacity and/or no current experience or current demonstrated work ready transferable skills, would be more likely to be paid in accordance with the applicable Award.
Waterproofing Worker $26.18 gross per hour
Based on an adult employee paid under the ‘Building & Construction General On-site Award 2020’, and classified as a Level 3 (CW/ECW 3), performing waterproofing work and associated duties, on a permanent part-time or full-time basis, exclusive of any applicable penalty rates and allowances.”[220]
[220]PCB 82

382Working a thirty-eight-hour week at the award rate of $26.18 per hour a waterproofer would earn $37,803.92.
383I accept Ms Morgan’s evidence is the only reliable evidence which goes to the earnings of a waterproofer. I make this finding with the reservations that:
(a) unlike Ms Morgan’s evidence in respect to carpenters, the figure referred to is not the average earnings of waterproofing workers across Victoria;
(b) I have no evidence of the application of the award referred to.

What conclusions do I reach in respect to Mr Brown’s loss of earnings using the “precise earnings” approach?
384I am troubled that the evidence available to me is not of sufficient clarity to enable me to be confident of just what Mr Brown’s precise “with injury” earnings would be as a waterproofer. However, I am conscious of:
(a)   the court’s comments in Margriplis-Hampton in respect to imperfect evidence;
(b)   that Bayside urged me to adopt such an approach.
385Having made these observations, I accept on the evidence which I have for the purposes of a “precise earnings” assessment:
(a)   the fairest and most reliable assessment of Mr Brown’s “without injury” earnings is $94,329 per annum, being the average earnings for a carpenter in Victoria;
(b)   the only realistic “with injury” work option for me to consider is that of a waterproofer;
(c)   it is the evidence of Ms Morgan which is the best and most reliable evidence in respect to the earnings of a waterproofer;
(d)   that it is likely Mr Brown, should he be physically capable of undertaking this work, would be employed at or around the award rate;
(e)   at the award rate the earnings would be $37,864 per annum.
386Adopting these figures and using the “precise earnings” approach as urged by Bayside:
(a)   60 per cent of $94,329 sets the 40 per cent threshold at $56,597;
(b)   based on the award rate Mr Brown, working as a waterproofer, would earn $37,864.
387Based on these figures Mr Brown satisfies the 40 per cent loss test.
388For completeness, even if I were to allow a more generous wage for a waterproofer, with say a 25 per cent to 40 per cent loading on the award rate, Mr Brown would still only be earning $47,225 to $53,010. He would still satisfy the 40 per cent loss test.
389Moving now to the alternative approach as urged upon me by Mr Brown’s counsel. As stated by Heydon JA in Moss, in the absence of “precise earnings” it is open for the court to adopt a broader and more general approach. Indeed given the reservations I have set out there is much to recommend the broader and more general approach in the circumstances of this case.
390Referring back to Moss, to adopt such an approach requires me to:
(a)   make a judgement and assessment of the value of Mr Brown’s lost capacity;
(b)   consider the damage to Mr Brown to pursue various careers and his capacity to earn income;
(c)   undertake an exercise in the estimation of possibilities, not proof of probabilities;
(d)   form a discretionary judgement by reference to fairly-wide parameters.[221]
[221]See paragraphs (iii)–(vi) of paragraph [264] of this judgment.
391I will not revisit the medical evidence. I have made my findings clear earlier in this judgment.
392In assessing the damage to Mr Brown’s capacity to obtain and retain employment and pursue various careers, I am assisted by the evidence of Ms Morgan.
393Ms Morgan said and I accept:
(a)   Mr Brown was reliant upon his fitness to perform manual labour for employment and his transferable skills are predominantly dependent on his physical abilities which, post injury, are reduced;[222]
(b)   Mr Brown’s consequential physical limitations would present substantial obstacles for Mr Brown to re-enter the workforce in either a full-time or part-time position, regardless of the role or industry, particularly a job with any manual-labour component requiring the use of his dominant right hand.[223]
[222]PCB 73
[223]Ibid
394I gain comfort in accepting Ms Morgan’s conclusions given Mr Brown’s experience in the workforce subsequent to his termination with Bayside. Mr Brown has endeavoured to work in a variety of positions which have ultimately not proved to be viable. For example:
(a)   the gardening work which caused increased pain[224] and where he had difficulty using a whipper-snipper and lawn mowers;[225]
(b)   the pest-control work which required the use of a hammer drill and where the vibration was such that Mr Brown was not able to continue.[226]
[224]Paragraph [20], PCB 12
[225]PCB 42
[226]DCB 31
395Having considered all of the evidence, I accept that:
(a)   Mr Brown is a man who is unlikely to ever be employed in “white collar work”.
(b)   Mr Brown will always be a man who is reliant upon his capacity to undertake manual work to obtain and retain employment.
(c)   Mr Brown, from the range of potential applicants for any particular job, will by reason of his right index finger/hand injury, be at a significant disadvantage.
(d)   The impact on Mr Brown’s capacity to use his right hand in a consistent, reliable and efficient manner within reasonable pain restraints has had a profound impact on his employment options and earning potential.
(e)   As Mr Thomas said, any work will be a matter of “trial and error”. There will be a need for much modification and adaption for any position for which Mr Brown may otherwise be suitable.
(f)    It is likely that Mr Brown will have periods where his earnings are impacted by:
(i)unemployment;
(ii)underemployment;
(iii)part-time work.

I accept that cumulatively such matters represent very significant damage to Mr Brown’s career options and capacity to earn income.
396Looking now to the estimation of Mr Brown’s possible earnings, both “without injury” and “with injury”.[227]
[227]See (iv), paragraph [264], where Heydon JA in Moss said the court is to undertake an exercise in the estimation of possibilities, not proof of probabilities.
397Considering firstly the “without injury” earnings.
398I accept it is a possibility that Mr Brown, having qualified as a carpenter, may at some time in the future have found his way to construction work. Indeed it is a possibility that Mr Brown, but for his injury, would have been working in such employment at the time of the application. This brings into the mix Mr O’Hearn’s evidence. Based on Mr O’Hearn’s evidence, that takes Mr Brown’s possible earnings, without injury, up into the range of $120,000 to $150,000, or perhaps more on a best-case scenario. On the other hand, there is of course the possibility Mr Brown would have stayed with Bayside and be earning $79,137.82.
399Moving to Mr Brown’s “with injury” earnings possibilities.
400As a starting point, I go back to the waterproofing job. Notwithstanding the reservations I have previously expressed, I accept it is possible that Mr Brown may obtain employment as a waterproofer.
401As to the rate which Mr Brown may earn should this eventuate, it is Ms Morgan’s evidence which continues to have resonance. I accept, for the reasons previously outlined, that Mr Brown, in such employment, would likely be employed at or around the award rate. It is difficult to see him earning more than $32,864 to $53,110.
402Moving now to alternative positions which may be possibilities for Mr Brown.
403In the course of the application reference was made to work in the retail or courier sectors. While it is a possibility that Mr Brown may find himself working in such positions I do not have the benefit of any evidence setting out the potential wage rates. I do however accept, based on Ms Morgan’s evidence, that Mr Brown:
(a) in the open marketplace for such jobs would still face limited options;
(b) is likely to be at the bottom end of the range of earnings for any job which he may be able to hold down.
404Indeed, when applying the principles applicable to the broader and more general approach, it reinforced to me the very significant vocational and economic disadvantage which Mr Brown suffers by reason of his right index finger/hand injury.
405As I have already note, the application of the broader and more general approach, by its nature, requires a broad exercise of my discretion.
406When applying the more general and broader approach I reach the same conclusion as I did when adopting the “precise earnings” approach. That is, Mr Brown is suffering at the present time, and will into the foreseeable future, continue to suffer a loss of earnings of at least 40 per cent.
407In summary, having been in the unique position of observing Mr Brown in the witness box and having considered all of the evidence, whichever way I look at it I accept that Mr Brown presently suffers, and will continue to suffer, a loss of earnings of 40 per cent or greater. Leave will be granted to Mr Brown to pursue economic loss damages.

Consequential orders
408I will hear from the parties in respect to the consequential orders arising out of this judgment.

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[2024] VCC 519

3 May 2024