Bustos v VWA
[2021] VCC 1531
•13 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-21-00473
| EXEQUIEL BUSTOS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne via Zoom | |
DATE OF HEARING: | 13 September 2021 | |
DATE OF JUDGMENT: | 13 October 2021 | |
CASE MAY BE CITED AS: | Bustos v VWA | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1531 | |
REASONS FOR JUDGMENT
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Subject:Workplace injury
Catchwords: Injury to hand and finger - partial amputation - serious injury – disfigurement.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2014; Accident Compensation Act 1985; Transport Accident Act 1986;
Cases Cited:Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Ingram v Ingram [1996] 2 VR 435; TAC v Garcia [2015] VSCA 225; (2010) 31 VR 1; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Humphries & Anor v Poljak [1992] 2 VR 129; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Hawkins v DHL Express [2013] VSCA 26; Nguyen v Natures’ Gift Australia Pty Ltd [2018] VCC 1960.
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Cvjeticanin | Maurice Blackburn |
| For the Defendant | Mr T. Storey | Wisewould Mahony |
HIS HONOUR:
1This matter is an application pursuant to s325(2) of the Workplace Injury Rehabilitation and Compensation Act 2014 (the WIRCA). The scope of the application is quite narrow. There is no argument but that the plaintiff suffered a traumatic injury to the index finger of his right hand when operating a machine in the course of his employment on 27 July 2017 (“the accident”). He touched a plug of the machine on which he was working with his right index finger and the machine “went off with. It was with full pneumatic pressure”.[1] He endeavoured to pull his right hand back but he was too late and the end of his right index finger was taken clean off. The end result was the amputation of most of the distal phalanx of the right middle finger (“the injury”). The plaintiff is right-handed.
[1] Exhibit P1, Plaintiff’s Court Book (‘PCB’) 9, paragraph 25.
2In opening addresses, counsel for the plaintiff stated that the only issue before the Court was range. Counsel for the defendant agreed. In other words, and although there were some additional but ultimately largely peripheral issues, the question is whether the consequences of injury are sufficient to satisfy the statutory test.
3The plaintiff was represented by Mr Cvjeticanin of counsel. The defendant was represented by Mr Storey of counsel.
Plaintiff’s evidence
4The plaintiff relied on two affidavits made by him on 28 September 2020,[2]
and 6 September 2021,[3] together with an affidavit of his wife sworn 6 September 2021.[4] The defendant did not seek to cross-examine the plaintiff’s wife.[2] Exhibit P1, PCB 6-15
[3] Exhibit P1, PCB 16-20.
[4] Exhibit P2, PCB 21-23.
Plaintiff’s medical evidence
5The plaintiff tendered the following material:
· X-ray Right Finger dated 27 July 2017;[5]
[5] Exhibit P3, PCB 24.
· Mr Rory Maher operation report dated 27 July 2017[6] and 2 March 2018;[7]
[6] Exhibit P4, PCB 25.
[7] Exhibit P4, PCB 26.
· Mr Nick Criticos dated 8 May 2019;[8]
[8] Exhibit P5, PCB 27-28.
· Dr Ian Roberts dated 16 September 2020;[9]
[9] Exhibit P6, PCB 29-30.
· Associate Professor Michael Leung dated 12 August 2021;[10]
· 5 Photographs of Exequiel Bustos right index finger;[11]
· Workers Injury Claim form dated 14 August 2017;[12]
· Impairment Benefit Claim form dated 2 October 2019;[13]
· Medical Panel Opinion and Reasons for the Opinion dated 15 July 2020;[14]
· Notice of Entitlement dated 16 July 2020;[15]
· Letter to treating doctor, Mr Rory Maher, requesting supplementary medical report dated 24 August 2021,[16]
· Email from Mr Rory Maher’s rooms dated 25 August 2021,[17]
· Email from Maurice Blackburn dated 25 August 2021[18] and reply email from Mr Rory Maher’s rooms dated 25 August 2021;[19] and
· Clinical Records of Dr Ian Roberts.[20]
[10] Exhibit P7, PCB 31-35.
[11] Exhibit P8, PCB 36-40.
[12] Exhibit P9, PCB 41-42.
[13] Exhibit P10, PCB 43-46.
[14] Exhibit P11, PCB 47-54.
[15] Exhibit P12, PCB 55-63.
[16] Exhibit P13, PCB 64-65.
[17] Exhibit P13, PCB 66-67.
[18] Exhibit P13, PCB 68-69.
[19] Exhibit P13, PCB 70-72.
[20] Exhibit P14; Defendant’s Court Book (‘DCB’) 35 and 37.
Defendant’s medical evidence
6The defendant tendered the following material:
· Mr Damian Ireland dated 9 December 2020[21] and 15 March 2021;[22]
· Certificate of Capacity dated 2 October 2017,[23] 19 October 2017[24] and
22 March 2018;[25]· Clinical Records of Dr Ian Roberts;[26] and
· Clinical Records of Action Rehab.[27]
[21] Exhibit D1, DCB 5-9.
[22] Exhibit D1, DCB 10-11.
[23] Exhibit D2, DCB 12-13.
[24] Exhibit D2, DCB 14-15.
[25] Exhibit D2, DCB 16-17.
[26] Exhibit D3, DCB 18-37.
[27] Exhibit D4, DCB 38-46.
7I have read and considered all of the material relied upon by the parties. I have also had regard to the oral evidence of the plaintiff and the submissions and addresses of counsel. Insofar as the medical material is concerned, I intend in these reasons to refer only to such parts of the records or reports referred to as is necessary to assist me in the resolution of the issues.
The nature of the claim
8The plaintiff sought leave to pursue damages in respect of pain and suffering only. In so doing, he relied on paragraphs (a), (b) and (c) of the definition of “serious injury” contained in s5(1) of the WIRCA. However, at the commencement of the evidence, counsel for the plaintiff informed the Court that the plaintiff no longer relied on paragraph (c) and essentially relied on paragraph (a) of the definition, but maintained his claim under (b) of the definition for the right index finger. Although the plaintiff’s arm from which a graft was taken was implicated as an injury, it was not pursued.
9The part of the body said to be impaired for the purposes of paragraph (a) and disfigured for the purposes of paragraph (b) is the plaintiff’s right hand and, in particular, the index finger of the right hand.
10The definition of “serious injury” contained in s5(1) of the WIRCA reads:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function ….
(b) permanent serious disfigurement…
(c) …
(d) …”
Relevant legal principles
11The Court must not give leave unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury”.[28]
[28] Section 335(5)(a) of the WIRCA.
12To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by him arose out of or due to the nature of his employment with the employer on or after 1 July 2014;[29]
“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[30]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[31]
[29] Section 5(1) of the WIRCA.
[30] Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33 at paragraph [33].
[31] Section 325(2) (b) and (c) of the WIRCA.
13The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
14In determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
15In determining the application, the Court:
must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[32]
must assess whether “the injury” is a “serious injury” as at the time the application is heard;[33]
must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[34]
[32] Section 325(2)(h) of the WIRCA.
[33] Section 325(2)(j) of the WIRCA.
[34]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26].
16The question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[35]
[35]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67].
17The “consequences” to the plaintiff of any impairment or loss of body function in relation to paragraph (a) or disfigurement in relation to paragraph (b) of the definition of serious injury must be “serious”. I refer to s325(2) and, in particular, paragraphs (b) and (c), which state:
“(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, … as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, … respectively;
(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of section 335(2) unless -
(i) the pain and suffering consequence …
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;” (Emphasis added).
18In regard to the claim for disfigurement under paragraph (b), the Act requires that seriousness is to be determined by reference to the consequences to the worker of the impairment and/or disfigurement with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments and/or disfigurements and that it may fairly be described as being more than significant or marked and as being at least very considerable. I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from this injury.
19However, in Ingram v Ingram[36] at 438, Callaway JA observed in respect of s93(17)(b) of the Transport Accident Act 1986 that:
…it is important not to read para (b) in isolation. ‘Permanent serious disfigurement’ within the intendment of the statute must be such disfigurement as bears comparison with such injuries as serious long term impairment of a body function, severe long term mental illness and loss of an unborn child.
[36][1996] 2 VR 435 (‘Ingram’).
20Whether the statement in Ingram should be applied in workplace injury proceedings as opposed to transport accidents is not a matter upon which I was addressed. The words “as the case may be” in s325(2) suggests that the requisite comparison of injuries is to be restricted to comparison within the class of injuries relevant to the particular application and not by reference to injuries in other classes. In any event, my decision would not have been different regardless of which interpretation is preferred.
Assessing a permanent serious disfigurement – the defendant’s submissions as to paragraph (b)
21The defendant would have it, as it submitted is the case with respect to paragraphs (a) and (b), that in order for disfigurement to be determined to be a serious injury, I should disregard the plaintiff’s evidence of how he perceives his scar and any psychological effects on him by way of his response to it or those expressed by his wife. It should, counsel submitted, be judged on its own terms.
22As the Act states that the psychological/psychiatric consequences of a physical injury are only to be taken into account for the purposes of an application pursuant to clause (c), I am required to consider the consequences to this plaintiff, viewed objectively arising from the injury in a paragraph (a) and (b) claim. This is not the position at law under Transport Accident Act 1986 (the TAA Act). For example, in TAC v Garcia[37] the Court of Appeal said that under s93(17)(b) a plaintiff’s emotional response to the disfigurement can be taken into account when assessing seriousness by way of pain and suffering consequence in a paragraph (b) case.
[37] [2015] VSCA 225 (‘Garcia’).
23I have assessed the plaintiff’s disfigurement by having regard to the objective characteristics of the finger, my observations of it, and having considered all the evidence before me.[38] I note additionally and relevantly that in Garcia, the Court of Appeal said that in relation to the nature of a claim under (b), a set of written reasons would not necessarily dilate upon the matter at length or in detail.
[38] See Judge KL Bourke in Naguib v VWA [2017] VCC 1710 at paragraph [138].
24Mr Storey submitted that when the fact of the plaintiff’s scar is considered by comparison with other cases in the range of possible impairments or losses then the claim under paragraph (b) should fail. Mr Storey argued that the disfigurement does not meet, when judged in comparative terms of the range of possible disfigurements and other impairments, the “very considerable” test.
The plaintiff
25The plaintiff commenced employment with the defendant in August 2005. His work required precision and fine adjustment to tools and machinery some of which operated at great speed. He suffered injury on 27 July 2017 when he touched a plug of the machine with his right index finger and the machine “just went off. It was with full pneumatic pressure”[39]. He endeavoured to pull his right hand back but he was too late and the end of his right index finger was taken clean off. He grabbed his right hand with his left hand and held tight and applied pressure on his right index finger. An ambulance was called. He was taken to Dandenong Hospital. Eventually a plastic surgeon saw him. She told him that she preferred not to reattach his finger but just to operate and close it off. She said it was not sufficiently clean a cut. She said there was a poor chance for a reattachment being successful. The plaintiff followed the advice of the plastic surgeon. He was operated on by Mr Rory Maher.[40]
[39] Exhibit P1, PCB 9, paragraph 25.
[40] Exhibit P4, PCB25.
26His amputated right index finger healed. There was also a wound on his forearm from which a skin graft was taken.
27The plaintiff’s general practitioner was Dr Roberts practising at Springvale. He subsequently attended Dr Albert Ho, general practitioner at the Hallam Family Practice. He said he did not see either general practitioner about his work injury because he was under the care of Mr Maher who seemed happy with how his finger was healing, and who told him that he could commence hand therapy and also return to work on light duties.
28The plaintiff commenced hand therapy with Action Rehab on 4 August 2017.[41] He returned to light duties on 7 August 2017, initially for four hours a day. He thinks he was working every second day and performing his normal work, but he had another worker to assist him so that he was not required to use his right-hand at that stage. He said he was unable to drive his automatic car for approximately two months.
[41] Exhibit P5, PCB 27.
29He submitted a WorkCover claim for compensation dated 14 August 2017.[42] The claim was accepted. He received weekly payments of compensation for time off work and compensation for the medical services received due to the injury.
[42] Exhibit P9, PCB41.
30As the dressings were removed from his wounds he could see that he had lost about half of the top joint of his right index finger. It was healing quite well. He did not experience pain. He was able to return to his normal work by about November or December 2017.
31The plaintiff said it was difficult to adjust to doing his work with the tip of his right index finger. As I have said, he is right-handed. He explained that it is natural for him to pick up small screws with his thumb and index finger. It is normal to adjust bolts, screws and dials with his right thumb and right index finger. He is unable to do it this way any longer as he said that he no longer has the necessary degree of control to undertake this exercise.
32He said that he experiences sharp pain in the end of his right index finger if he applies pressure to it.[43] Although he has adapted to his work with his right thumb and middle finger, he said it is not the same.
[43] Exhibit P1 PCB 9, paragraph 21.
33In late 2017 he noticed two little points emerging at the stump of his right index finger. He was avoiding using his right index finger but the points would catch and get bumped and this would be very painful. He told Mr Maher about it, who elected to operate on 2 March 2018.[44] The plaintiff was off work for about three and half weeks. Once more he returned to work on light duties and then, after about a month or so, he returned to his normal work. The surgery resolved the catching problem.
[44] Exhibit P4, PCB 26.
34The plaintiff continued to receive hand therapy with Action Rehab until about
1 June 2018.[45][45] Exhibit D4, DCB 39.
35The plaintiff made a claim for impairment benefits dated 2 October 2019.[46] He referred the dispute to a Medical Panel who provided a favourable opinion dated 15 July 2020.[47]
[46] Exhibit P10, PCB 43.
[47] Exhibit P11, PCB 47.
Current condition
36The plaintiff says that every time he sees his right hand he is reminded of the incident of injury and the loss of the tip of his finger. As he put it in his affidavit “It happens hundreds of times a day”.[48]
[48] Exhibit P1, PCB 8, paragraph 21 and PCB 16 paragraph 1.
Credit
37I assessed the plaintiff as an honest man who should be commended for his character in returning to work from his accident and continuing to work to this day. He presented in a straightforward and credible manner. However, the defendant implicated the plaintiff as perhaps exaggerating the frequency of pain experienced in his right index finger in light of the medical reporting. I will explain.
The pain controversy
38The matter was opened by counsel for the plaintiff during the course of which he said:[49]
“I ought to note that pain has never been a feature of this man's case so he's never had to receive the kind of analgesic medication that we often see in these applications. Nor does he complain of that sort of constant aching pain.
What he's been left with was a numbness in part of the stump and a tenderness on the very tip of the stump which would be a more exquisite pain if he ever actually struck it or touched it. He did develop two little points of pain where the remnant fingernail which hadn't been totally excised in the original surgery became to deform and protrude and would catch on to things. And on [sic] March Mr Maher operated and removed that remnant nail bed.”
[49] T5-6.
39In final address counsel for the defendant said this:[50]
“I should say – pausing there, it is highly unusual, in my submission, that a serious injury application such as this one, would be opened and confirmed by the plaintiff's viva voce evidence, as being a case where pain is not a feature.”
[50] T32.
40When plaintiff’s counsel’s opening is fairly read, I am not satisfied that it was in the nature of a concession of an absence of pain, but instead that an associated feature of the repaired injury was that any pain was short lived and sharp and not constant, but nonetheless chronic, because of its repetitiveness due to inadvertent touching of the tip of the finger with an external object. Nonetheless, there is some merit in counsel for the defendant’s submission that the plaintiff’s affidavit account of pain is of a more heightened narrative than is the plaintiff’s evidence in cross-examination or the reports of either the plaintiff’s or the defendant’s medical examiners, including the clinical records of the plaintiff’s hand therapist from Action Rehab whom the plaintiff saw from April 2017 until April 2019.[51]
[51] Exhibit D4, DCB 38.
41The plaintiff deposed that he suffers pain in his right index finger when he touches or bumps it the wrong way, and that this occurs many times every day. He said it had been necessary to learn to live with it because there is nothing to be done about it and because he uses his right hand all the time.
42The plaintiff does not take any painkillers because the pain is generally temporary and is dependent on his activities.
43He said he is conscious of his right index finger all time. He notices the amputation constantly. He said he can tell other people look at it too. He is conscious of what he thinks other people make of the way his hand looks. If he tries to shake hands in the traditional manner he will experience pain.
44He said the injury to his right index finger affects his work and home life. At work he is struggling with small screws. He needs to use his right thumb and middle index figure for adjusting bolts, screws and dials, an activity he is required to perform perhaps in the order of once or twice a week. He said he keeps his right index finger out of the way when lifting.
45At home it is difficult to button shirts or tie laces. It is difficult to toilet. He has difficulty writing with a pen. Using a keyboard on a computer or just scrolling through his mobile phone is awkward. His tendency is to try and use his right index finger but if he does, he is met with a sharp shock of pain. He said he uses a keyboard by keeping his index finger lifted away and he scrolls through his mobile phone the same way but it feels peculiar to do so. He said it is awkward to use a knife or spoon. It is awkward holding a cup. It is awkward to hold a toothbrush. He needs to be careful when drying himself with a towel.
Supplementary affidavit
46In his second affidavit the plaintiff deposed that the injury to his right index finger and the restrictions on his daily life remain as previously deposed to. He said that even with the passage of time whenever he sees his right hand he is reminded of the incident.
47He still suffers pain in his right index finger when he touches or bumps the finger the wrong way and the stump of his right index finger remains very tender.
48He commented on the statement by Mr Ireland who, in a report for the defendant, said that the plaintiff will be able to learn to use his middle finger instead of his index finger. The plaintiff says that he has not found this to be the case. However, there is no doubt that the plaintiff has adapted. For work purposes he can use his middle finger instead of his index finger but “it is just not the same. It just feels awkward”.[52] He said he still keeps his right index finger out of the way when he lifts things. He said he has difficulty undoing large bolts. He said sometimes because the way a machine is configured he is unable to use his left hand and he is forced to use a lot of force with his right hand which in turn hurts his index finger.
[52] Exhibit P1, PCB 18 paragraph 5.
49At home he still finds it difficult to do up buttons, zips or tie laces. For small buttons such as collars and shirts he will sometimes ask his wife to do them up for him.
Wife’s affidavit
50The plaintiff’s wife says she sees the effect of the injury to her husband’s right index finger on a daily basis. She sees him struggle with doing up his clothes and tying up his laces and sometimes she helps him with small buttons. She sees him pull his hand back quickly whenever he has hurt his index finger.
51She said that after the injury and at times of physical intimacy she did not enjoy being touched by his injured finger and felt uncomfortable. She told him this. Although I do not proceed on the basis that the plaintiff’s wife’s unchallenged evidence must be accepted, I tend to the view that taking all of the evidence into account, her evidence does assist me in coming to a view of the extent of pain, and also the plaintiff’s restrictions as observed by her.
52Associate Professor Michael Leung in an IME dated 12 August 2021,[53] described the plaintiff as having suffered a crush amputation of the right index finger at the level of the base of the nail bed and it had been repaired with a neurovascular island flap.
[53] Exhibit P7.
53Associate Professor Leung said that the plaintiff does not complain of any pain in the fingertip.[54]
[54] Exhibit P7, PCB 33.
54He said that the main problem related to the numbness of the finger. The plaintiff has:
“reasonable range of movement of the index finger and limited examination via Zoom revealed that he has relatively normal range of movement of the MP joint and PIP joint. There is very little movement at the DIP joint. There is no ulceration in the tip of the amputation stump and there is what appears to be a stable hyper pigmented graft at the tip of the amputation stump.”[55]
[55] Exhibit P7, PCB 33.
55He described a scar on the right forearm about 3 centimetres, linear in shape and slightly hyper pigmented but without evidence of ulceration or deep attachment.
56Associate Professor Leung wrote that the plaintiff said that his main restriction is the numbness of the tip of the right index finger. He located the numbness as extending from the level of the mid-middle phalanx to the amputation stump. He noted that the numbness would cause problems with fine manipulation and also day-to-day activities, for example tying up shoe laces or doing up buttons. He explained that the plaintiff finds it difficult using the mobile phone due to the numbness of the index finger, as well as encountering difficulty in writing.
Defendant’s medical evidence
57The plaintiff was seen on behalf of the defendant by Mr Damien Ireland on
9 December 2020.[56] In a report of that same date, Mr Ireland wrote that the plaintiff’s current complaints are those of tenderness over the amputation stump of the right index finger over the skin graft of that area.[57] He wrote that “the plaintiff has no pain per se in the index finger and no resting pain. He does complain of restricted motion at the distal joint of the index finger”.[58][56] Exhibit D1, DCB 5-9.
[57] Exhibit D1, DCB 6.
[58] Exhibit D1, DCB 6.
58Mr Ireland wrote that the plaintiff’s combination of symptoms causes functional difficulties such as doing up buttons, holding a pen and writing, doing up shoelaces and picking up small objects such as nails, nuts and bolts.
59Mr Ireland wrote that the plaintiff’s major functional symptom is inability to attend to personal hygiene by way of toileting with his right dominant hand.
60When asked regarding grip strength the plaintiff told Mr Ireland that he had not suffered a loss of grip strength.[59]
[59] Exhibit D1, DCB 6.
61The plaintiff told Mr Ireland that he tends to perform small home duties including gardening and that he drives his car without difficulty.
62Mr Ireland wrote that there has been an obvious amputation through the distal phalanx of the index finger. There is a pigmented skin graft on that area measuring 12 x 8 millimetres over the tip of the amputation stump extending more to the dorsal aspect of the digit and to a lesser extent to the palmar aspect. There is tenderness to light percussion over the skin graft of that area. There is a V-shaped scar extending along the ulnar side of the digit from the proximal interphalangeal joint to the stump at the site of an ulnar sided neurovascular advancement flap. There is a healed donor site on the medial aspect of the elbow measuring 2 centimetres. This scar is mildly hypertrophic but is non-tender and non-adherent. Apart from tenderness over the pigmented skin graft, there is no other tenderness and the Tinel’s sign over both the skin graft and both digital nerve stumps is negative.
63Active range of motion of the right index finger was measured as follows:
“metacarpophalangeal joint normal at 20° extension to 90° flexion.
Proximal interphalangeal joint 0° extension to 90° flexion and distal
interphalangeal joint -20° extension to 30° flexion.”[60]
[60] Exhibit D1, DCB 7.
64Sensation was tested by two point discrimination at the index finger that was normal in the radial side but measured between 7 and 15 millimetres on the ulnar side. The palm of the hand was soft and voided work stain and work callus as was the left hand. There was no evidence of excessive sudomotor or vasomotor activity.
65Mr Ireland wrote that the plaintiff had been unable to articulate any specific detrimental effect on social, recreational, hobby and sporting activities other than his difficulty with personal hygiene requiring him to use his left non-dominant hand.
Mr Ireland’s second report dated 15 March 2021
66Mr Ireland wrote that the plaintiff complains of tenderness at the amputation stump of the right index finger and he therefore tends to exclude use of the injured index finger from all normal daily activities. Doing up buttons and holding a pen and writing are affected using pulp to pulp pinch grip using the thumb apposing to the pulp of the index finger.
67Mr Ireland wrote that these tasks can be accomplished by bypassing the index finger in favour of the adjacent middle finger. However, this requires a relearning process especially when the dominant hand has been factored. Mr Ireland wrote that in severe cases where the injured hand is more symptomatic than in this case, retraining to use the non-dominant is required.
68Mr Ireland explained that doing up shoe laces can usually be accomplished by retaining to use the adjacent middle finger with greater ease than the other functions he referred to.
69Mr Ireland wrote that picking up small objects such as nails, nuts and bolts can much more easily be accomplished by using the adjacent middle finger and the index finger can be easily excluded from these tasks.
70Mr Ireland reiterated that, in his opinion, it is the loss of the ability for personal hygiene attendance with the dominant right-hand which represents the plaintiff’s “significant functional loss.”[61]
[61] Exhibit D1, DCB 11.
Action Rehab
71The plaintiff first attended hand therapy on 4 August 2017. At that time it is recorded “pain only when bumps it”.[62] That response is recorded again on
7 August 2017. By 3 May 2018 the note is of “Pain 0/10.”[63] By 8 April 2019 it was recorded that “Some issues with fine motor skills remain…Pain 0/10”.[64][62] Exhibit D4, DCB, 46.
[63] Exhibit D4, DCB, 39.
[64] Exhibit D4, DCB, 39.
The plaintiff’s evidence
72The plaintiff adopted the contents of his affidavit as true and correct.
The plaintiff cross-examined
73The plaintiff said he does not experience pain other than fleeting instances when he inadvertently bumps the tip of his right index finger and then he feels a sharp pain.
74He agreed he feels numbness rather than pain. He was asked whether by April 2018 he was effectively pain-free and he said “I always be pain free, and then I been (indistinct). Never had any pain, even when my finger (indistinct), it does-I mean the doctors are surprised that I’ve never had any pain. But that’s the truth.”[65]
[65] T14.
75Later the plaintiff was asked if it was the position that following the second surgery in March 2018, and after being off work for approximately a month, he then returned to light duties for approximately three weeks and then returned to normal duties, to which he agreed. He also agreed that at that time he was pain-free. He agreed that he had been able to continue working effectively pain-free from that time onwards and, when asked if that remains the case today, that he is “able to work pain-free in your normal job”, he replied “That’s correct”.[66]
[66] T14.
76The plaintiff has worked without time off due to his finger or hand and he has had no need for medication for his hand or finger. He agreed that he had attended his general practitioner, Dr Roberts, for medical conditions from time to time but added, “I never went to them for my injury, you know, I got from work”.[67] Dr Robert’s letter to Maurice Blackburn dated 16 September 2020 attaching clinical notes of attendances is accompanied by the statement that he had seen the plaintiff on three occasions since his injury on 27 July 2017 with the first of them occurring eight months after the injury. He said he had not had any involvement in the management of the injury and had no relevant radiology reports and correspondence from doctors involved in the management of his injury.
[67] T14.
77The plaintiff accepted that since June 2018 he has been required to develop small ways to change and manage his life on a day-to-day basis so that his right index finger does not get in the way of whatever he is doing. He did not accept the proposition that over time it has become easier for him to adapt the use of his thumb and middle finger instead of his right index finger and thumb in working with small screws.[68] The plaintiff said that whilst it was not a daily requirement at the factory for him to screw small screws, it might be necessary:
“once a week, twice a week, I have to deal with small screws that come with a tool that is called a milling face cutter. They have got a few - they come in eight on ten and 12 inserts, that they call them, and they are - those inserts are attached to the face mill cutter with the small screws, and when those cutters have to be changed and then we have to replace the insert, that's when I - you know, comes the use of the small screws there.”[69]
[68] T16.
[69] T16-17.
78The plaintiff said it was not just the issue of small screws that he was confronted with at work and he said as part of his job:
“I have to also make sure that everything is running okay, and when there is for instance a coolant leak, I have to go and find out the place where it is leaking from and I have to take the cover off - the covers that are attached with small screws in there, and then again, you have to - but I couldn't precisely say it is once a week, twice a week. It could be every day in one week, it could be another week without - I don't have to do anything like that. Whenever I need my finger, that's when, you know, I struggle a bit.”[70]
[70] T17.
79He denied the suggestion that performing these actions was something that he was able to do fairly easily with his thumb and middle finger. He said it was not the case and he explained that he needs to:
“grab the screw with my right hand finger, with the middle finger, I use my Allen key and then insert the Allen key in the right hand and then it screws in, but I can't do it with my finger, because I don't - every time that I try, they all go crooked in there, you know. They bend and I can't line it up with the hole.”[71]
[71] T17.
80He denied that he had become proficient in the adaptation of the use of his thumb and middle finger and put it in these terms:
“No, sir. If I get by with that but it's not proficient as you said, it's not the same. You know, I'm a right hand man and then many times I have to use my left hand but as a middle finger it's not the same as the index finger.”[72]
[72] T18.
81Nonetheless, despite this lack of proficiency, he agreed that he is able to complete his work tasks.[73]
[73] T18.
82Whilst the plaintiff had been provided an assistant on his return to work, he agreed that it is no longer the case.[74]
[74] T18.
83It was suggested to the plaintiff that just as he had made changes to adapt at work so, too, had he done so with his home life. He said that he has had to use his left hand to clean himself after toileting which he explained is “not easy to do…”.[75] He explained as well that shaving is difficult because of the inability to use his index finger, but he said he gets by.[76]
[75] T18.
[76] T18.
84In regard to pain, and that experience of it referred to in his first affidavit as a sharp pain at the end of the index finger when pressure is applied to it, he said that he experiences such pain when he touches it or bumps it “but apart from that nothing”.[77]
[77] T19.
85The plaintiff said that even though he is conscious of his problem there are times when he is “unconscious of things and then I bump my finger and hit it and that happens almost every day”.[78] This is when he feels pain but apart from such occasions, “I don’t suffer any pain, I don’t take anything for pain.”[79] He said the pain is gone within a second.[80]
[78] T20.
[79] T20.
[80] T20.
86The plaintiff was taken to the contents of Mr Ireland’s report and, in particular, that part of it where he wrote that the plaintiff “has no pain per se in the index finger and certainly no rest pain.”[81] He said, “I don’t have any pain, that’s correct”.[82]
[81] T21.
[82] T21.
87The plaintiff was asked about that part of the report from Associate Professor Leung who wrote that “he does not complain of any pain in the fingertip”.[83] The plaintiff said he could not remember referring to the fingertip, “but I been saying all along that I – I don't have any pain at all on the things, but not specifically on the fingertip”.[84] He was then directed to that part of the report in which the Associate Professor referred to the plaintiff’s main problem being related to numbness of the finger. The plaintiff said, “Well, it's part of what I feel – is also a numbness on my finger. But – yeah, but – in relation to the fingertip – it's only when I hit the finger, when I bump it. When I squashing somewhere a bit hard, and - -”.[85] When pressed further on the issue of the lack of reference in the report to pain in the fingertip, the plaintiff said that it did not entirely accord with his memory of what he told him and that:
“I can't remember exactly the words that I said to him but when I - I don't know, maybe he misunderstood what I said or - but I don't have - the pain - I never had a pain, as I have been saying all along. The pain in my finger tip, I have when I hit it. The numbness has always been there. Tenderness has always been there.”[86]
[83] T22.
[84] T22.
[85] T22.
[86] T22.
88He agreed that it was a fair comment that on a day to day basis with respect to his right index finger he experiences some tenderness and some numbness rather than pain.[87]
[87] T23.
Re-examination
89In re-examination the plaintiff said the difficulties he encounters at work in the manner of carrying out exercises with screws that he is required to adopt left him feeling a bit frustrated.[88] He went on to say, “Sometimes I use my garden tool and things like that or carpenter tools every now and then I do things, it's the same thing that I feel when I can't use it because it is what it is like that.”[89]
[88] T24.
[89] T24.
90He said at home he expresses his frustrations loudly whereas at work he just “bear with the things.”[90]
[90] T24.
Defendant’s final address
91Counsel for the defendant contended that on the basis of all the evidence, the plaintiff had failed to discharge his onus of satisfying the narrative test under the definition of “serious injury” whether it be under paragraph (a) or paragraph (b) of s325(2).
92Mr Storey submitted that I should ignore the plaintiff’s emotional response to the consequences of his injury. Whilst I accept that I may not have regard to a psychological response to an injury under paragraph (a) or paragraph (b) for the purpose of elevating a non-organic serious injury to that of a serious injury, it would be wrong to exclude a consideration of upset or distress or frustration caused by consequences to an impairment in measuring pain and suffering. Indeed, I would regard such an approach as contrary to law.
93In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[91] Maxwell P set out various principles in evaluating the “pain and suffering consequences”. In particular, at paragraphs [14]-[15] under the heading “The disabling effect of pain”, Maxwell P states:
“As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained’.[92]
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.[93] What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.”[94]
[91] (2010) 31 VR 1 (‘Haden’).
[92] Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27].
[93] Reference was made to Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [47].
[94]Reference was again made to Dwyer v Calco Timbers Pty Ltd(No 2) [2008] VSCA 260 at paragraph [25].
94This emphasis on work was referred to in Ellis Management Services Pty Ltd v Taylor,[95] wherein the Court of Appeal stated:
“As has repeatedly been held, the inability of a worker to engage in employment which he or she enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.”[96]
[95] [2013] VSCA 326 (‘Ellis’).
[96] Ibid at paragraph [35].
95This concept was enlarged upon by the Court of Appeal at paragraphs [43] to [44], when it was stated:
“Whether it be the loss of pleasure in doing something one used to be able to do or frustration in being unable to do something one used to be able to do, and whether or not the relevant activity is work related, such loss of pleasure or feeling of frustration falls to be considered when assessing the pain and suffering consequences of a particular injury. Further, the loss of pleasure or feeling of frustration may be all the more serious if it is suffered in circumstances where the range of activities that a person may or may not be able to engage in but for his or her injury is more limited than it might be for a person with a different skill set.
(a) First, pain may in fact be experienced at work or while performing particular types of work.
(b) Secondly, the inability to perform certain work may be indicative of what injury has in fact been sustained by the worker.
(c) Thirdly, a worker might suffer a loss of enjoyment of life in being unable to perform work which he or she used to enjoy. Under this heading there may also be pain and suffering consequences in respect of any frustration of a worker at being unable to perform activity that he or she used to be able to perform.”
96Although the plaintiff is able to work and able to do all of his normal duties, there are a limited number of functions that the plaintiff described and that he is now required to execute differently both at work and at home, and this causes a degree of frustration. I see no reason why that frustration cannot sound as an element of pain and suffering consequences in terms of a loss of enjoyment of life to which I may have regard in my assessment. Therefore, in my opinion, I am entitled, when considering all of the evidence, to have regard to how the plaintiff says he feels as a consequence of the impositions and adaptations he has had to make in consequence of the functional impairment to his right index finger and/or to the use of his right hand. In my view, that does not offend against established principles and it does not elevate a mental type response to fill the void of an otherwise non-serious physical impairment. Rather, it has a capacity to inform pain and suffering consequences of a physical injury. I have given them my consideration as part of the overall evidence.
97In terms of the Haden Engineering Pty Ltd v McKinnon[97] indicia, the defendant submitted that the plaintiff does not satisfy them and, in any event, does not rely on most of those referred to by the Court including sleep, mobility, cognitive functioning, capacity for self-care and self-management. Whilst “difficult” to manage his toileting, he has adapted and lives with it. There is limited evidence of a restriction in the performance of household and family duties. There is no identified loss of any recreational activities or social activities. The plaintiff deposed to trying to keep his index finger out of the way of his wife and worries that she “will be put off by the way my hand looks and feels, and that it makes me feel bad”.[98]
[97] (2010) 31 VR 1 (‘Haden’).
[98]Exhibit P1, PCB 20.
98In sum total, the defendant submitted that whilst the plaintiff’s injuries are not trivial, and they are permanent, they are not “serious”, and it would be wholly erroneous to consider them “at least very considerable” and “more than merely significant or marked”.
TTB SMS Pty Ltd v Reading
99Mr Storey submitted that TTB SMS Pty Ltd v Reading[99] is the leading authority in this State in addressing finger injuries in a serious injury application and by reference to it, the plaintiff should not be regarded as having suffered a serious injury. Reading, although a decision of the Court of Appeal, did not alter the legal construct in the determination of serious injury applications. Its utility is in the consideration it brought to bear as to whether particular circumstances satisfied the narrative test for serious injury and the guidance it can offer in like cases. The Court of Appeal determined that the trial judge had erred in being satisfied that the evidence led by the plaintiff discharged his burden.
[99] [2020] VSCA 203 (‘Reading’).
100However, Mr Storey tabulated the circumstances of the respondent in Reading as against those of the plaintiff and submitted that, on an objective analysis, the injured worker in Reading had a stronger basis for acceptance of a serious injury than does the plaintiff, and yet he was found wanting by the Court of Appeal.
101In my judgement, one must be careful in distilling too great an analysis from Reading’s case. Their Honours concluded that the facts as found by the trial judge did not reach the requisite level. That is as far as the decision travels. The Court of Appeal did not suggest that it was enunciating any new principle of law. The value of the decision is undoubtedly in the judgement brought to bear in assessing seriousness against the accumulated facts relied upon by a plaintiff.
102However, and because great store was placed on the decision by the defendant, in the passages that follow I set out the defendant’s submission that made comparisons between the facts in Reading’s case and the evidence of the plaintiff and their consequences.
Age
103In Reading, the plaintiff was 38 years of age at the time of injury, and 50 years at the time of the application, whereas the plaintiff was at the time of injury aged 64 and is now just shy of 69. Whereas it is pertinent to have regard to the long years of suffering a young plaintiff will encounter with a serious impairment, an older plaintiff should not suffer a reduction because arithmetically he is to be exposed to likely fewer years of consequences of injury.[100]
[100] Hawkins v DHL Express [2013] VSCA 26.
Fingers affected
104In Reading, three fingers were affected, namely a middle finger – dislocated, ring finger and the little finger was surgically repaired, with metalware (plate and screws) inserted and permanently remaining. The plaintiff has had one finger affected being the right index finger with the tip amputated.
Effect on work/employment
105Following the injury, the plaintiff in Reading was off work for four days and he returned to work on modified duties. He had difficulty with some manual aspects of the work. He stopped after six months due to the company being re-structured. He subsequently commenced new employment at a 10 pin bowling centre and became a full-time facilities manager for about seven years. He then returned to spray painting and supervisory work. He could paint for short periods with his right hand. A couple of years later he commenced another spray painting job as a leading hand.
106The plaintiff by comparison was off work for 11 days after the injury. By October 2017, he was certified fit for normal duties.[101] He returned to work on normal duties, but with some modifications. By November 2017, he returned to full-time normal duties.[102] He had a second surgery on 2 March 2018. He then returned to light duties. By April 2018, he had resumed normal duties. He uses his thumb and middle finger rather than thumb and index finger for some aspects of the job, such as picking up screws, adjusting bolts, turning dials etc.[103] He continues in pre-injury employment today.
[101] Exhibit D2, DCB 15.
[102] Exhibit P1, PCB 11.
[103] Exhibit P1, PCB 12.
Pain/other effects
107In Reading, the plaintiff experienced intermittent pain and cramping in the right hand, mainly in the little and ring fingers.[104] There was numbness, spasms, pins and needles in the affected fingers.[105] There was permanent curling of the affected fingers along with an inability to move them properly. There was no movement in the little finger. There was significant clawing and constructive shortening. There was reduced fine movement and strength in the right hand.[106]
[104] Reading [2020] VSCA 203 at paragraph [13].
[105] Ibid paragraph [9].
[106] Ibid paragraph [15].
108The plaintiff has pain in the index finger when he touches or bumps it the wrong way. He has sharp shocks of pain when he touches or bump the tip of the index finger. It is very tender but he has learned to live with it.[107]
[107] Exhibit P1, PCB 13.
Current treatment
109In Reading, the plaintiff was not receiving treatment. The plaintiff is not undertaking any treatment and hand therapy ceased in June 2018.
Medication
110The plaintiff in Reading was not in receipt of prescription medication and was taking over-the-counter medication once or twice weekly. The plaintiff has no recourse to any medication including painkillers.
Personal care
111In Reading, the plaintiff’s personal care was unaffected, whereas the plaintiff’s personal care affects have been that it is “difficult to wipe my backside”[108] and “... awkward to hold a toothbrush”.[109]
[108] Exhibit P1, PCB 14.
[109] Exhibit P1, PCB 14.
Dressing/self-grooming
112In Reading, the plaintiff experienced difficulties with writing, tying shoelaces, holding cutlery, putting things in a pocket or a drawer.[110] The plaintiff finds “it difficult to do up buttons, zips or laces”.[111] He said he needs to be “careful when drying myself with a towel”.[112] He has difficulty ferreting for coins in pockets.
[110] Reading [2020] VSCA 203 at paragraph [9].
[111] Exhibit P1, PCB 14.
[112] Exhibit P1, PCB 14.
Sporting/recreational
113In Reading, the plaintiff lost his ability to play golf and go water-skiing. He was still able to fish but less frequently.[113] The plaintiff did not depose to any reactional or sporting pursuits prior to the accident that he has lost.
[113] Reading [2020] VSCA 203 at paragraph [9].
Plaintiff’s final address
114Counsel for the plaintiff addressed the twin issues of loss of function referable to ground (a) of the claim and disfigurement under paragraph (b).
115First, counsel endeavoured to bat the relevance of Reading’s case out of the ball park, so to speak, and he submitted that it neither represents a restatement of the law or espoused any new or novel principle and, moreover, is not analogous on its facts to the circumstances of the plaintiff. I have already indicated that I agree with the first two propositions.
116Counsel further sought to distinguish the value to be gained from Reading by reason that it is not a disfigurement case. Moreover, the plaintiff returned to work after four days and the injury involved the middle finger that no longer caused a problem at the time of hearing. Although in Reading the plaintiff suffered from some clumsiness with the hand, he possessed a full capacity to care for himself and live independently. Counsel contrasted this with the plaintiff who has suffered an amputation of part of the index finger of the dominant hand. Counsel argued that the index finger is functionally more important and physically more prominent than the ring and little fingers of the same hand.
Loss of function
117It was submitted that the plaintiff has lost the total function of the right index finger such that it is largely useless to him. He has lost the top 1.5 centimetres and he experiences some numbness on the remnant finger. He has also been left with some tenderness at the tip of the graft portion.
118Counsel referred to the opinion of Mr Ireland[114] who wrote, “There is tenderness to light percussion on the skin grafted area”[115] and he has also identified an area of loss of sensitivity that counsel submitted was reinforced in clinical notes from the plaintiff’s general practitioner who, on an attendance by the plaintiff for unrelated matters, recorded “Yes, I’ve still got tenderness on the tip of my finger”.[116]
[114] Exhibit D1, DCB 7.
[115] T51.
[116] T52.
119Counsel elaborated on the practical implications of the experience of tenderness which he submitted the plaintiff had explained in evidence, namely, that whenever he touches something with his finger inadvertently, he feels a shot of pain.
120Counsel made the point that although there is a record of grip strength tests having been performed there is no comparison to the plaintiff’s right hand grip prior to his injury. He added, however, that it is “fair to say that the plaintiff has been able to retain function of the hand of the means described, but we shouldn’t say that his necessarily got full function of the strength of the index finger measured by grip tests”,[117] as there is no comparison to preinjury.
[117] T54.
121Counsel acknowledged that the plaintiff has adjusted to losing the function of the index finger and although it has been difficult for him he has achieved it. He submitted that the evidence should satisfy me that the plaintiff has been unable to recover the kind of “mastery”[118] he had over his trade and built up over many years, and that the lack of the same measure of control in undertaking fine work is a matter of some frustration.
[118] T55.
122Counsel submitted that the plaintiff on the evidence has difficulty dressing himself, doing up buttons, zips and laces. On some occasions he requires the assistance of his wife with small buttons. He has of course the difficulty with toileting, a matter which Mr Ireland for the defendant has assessed as a significant and a long-lasting necessary adaptation required on the plaintiff’s part. The plaintiff has also deposed to difficulty using a toothbrush, drying himself with a towel and washing himself in the shower.[119] There is some difficulty with eating by way of the use of a knife or a spoon and holding a cup of tea, opening packets of food such as chips and biscuits.[120] He has difficulty with the use of a pen rendering his handwriting the poorer, using a keyboard, trying to extract keys and coins from his pocket and using a smart phone.
[119] Exhibit P1, PCB 18.
[120] Exhibit P1, PCB 19.
123The plaintiff has dealt with the injury by pulling the index finger up and out of the way enabling the use of other fingers of his hands but predominantly his middle finger. Counsel submitted that the necessary affectation by lifting the right index finger out of the way of itself brings the disfigurement to anyone’s attention including his own and serves as a reminder of his injury.
124Counsel intimated that had the injury been, for example, to the little finger of the plaintiff’s hand he might be able to curl the finger under and thus serve as a less frequent reminder of his disfigurement or, if he was scarred such as was
Mr Garcia’s left upper arm, he might be able to don a long-sleeved shirt and so disguise it from observance. Such options are not open to the plaintiff.125Thus, in terms of a disfigurement, counsel submitted that the amputation cannot be hidden or disguised and so is present all the time, and every time the plaintiff uses a pen or a keyboard, or adjusts a screw at work, or uses the cutlery when eating, or picks up a cup, or uses the smart phone, his disfigurement is observable. Counsel submitted that the location of the disfigurement is apparent and obvious.
126Counsel submitted the perception of his disfigurement expressed by his wife to him and the “interference in the plaintiff’s sexual life is a major distinguishing factor from the plaintiff in Reading”.[121]
[121] T58.
127Counsel relied on the decision of His Honour Judge Bowman in NguyenvNatures’ Gift Australia Pty Ltd[122] particularly at paragraphs 31 to 34. The plaintiff’s embarrassment was assessed to be a relevant consideration by his Honour. His Honour’s observations were obiter as it was unnecessary for him to determine the paragraph (b) limb. In any event, I do not read his Honour’s comments as being at odds with my earlier expressed position on the matter.
[122] [2018] VCC 1960.
Finding
128I am satisfied that there is an impairment of the right hand and such impairment is “permanent” within the meaning of the Act. So much is clear just from observation. Furthermore, I am satisfied that there is disfigurement to the plaintiff’s right hand, manifested by the shortened index finger involving the loss of the nail of that finger, and modest scarring, particularly around the donor site.
129In my view, the critical issue is whether or not the impairment and/or disfigurement is “serious” within the meaning of the narrative test.
130In Ellis, the Court of Appeal (consisting of Osborn and Beach JJA) at paragraphs [57] to [59]:
“The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.[123]
Nevertheless the relevant assessment must be made objectively by the court. It is the judge’s opinion as to the seriousness of the impairment or loss which is determinative, not the opinion of the applicant or medical practitioners.[124]
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 ….”
[123] Reference was made to Humphries & Anor v Poljak [1992] 2 VR 129.
[124] Reference again was made to Humphries & Anor v Poljak [1992] 2 VR 129, 137.
131Of course, it is also important to always bear in mind that impairment is assessed by reference to the consequences of the injury rather than the injury.
132Also, in Ellis the Court of Appeal stated, at paragraph [52]:
“… After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.”
133When I approach the consideration of the matter from the perspective of the guidance afforded by relevant authority and assess and weigh all of the evidence, I am not satisfied that the plaintiff has proved on the relevant standard of proof that he suffers a serious injury. I have reached this conclusion for the following reasons.
134I accept that the amputation injury is to the distal phalanx on the plaintiff’s index finger. It is a finger of the hand which the plaintiff has occasion to use quite considerably. Its functional use has, for all practical purposes, been lost and that its residual use is further diminished due to sensitivity at the tip and accompanied by a short sharp pain when coming into contact with another surface or object.
135The plaintiff has sworn as to how both at work and in his day-to-day life contact with the tip of the finger is painful. I accept his evidence. I do not regard his evidence as having been brought into doubt because of the positive statements in medical reports of a lack of pain. What I interpret those reports to mean is the plaintiff does not suffer pain that is constant in nature.
136It is relevant to determine whether the extent and frequency of pain is inherent to the injury or a consequence of it and the extent to which the frequency of pain renders the injury more than marked or significant. The plaintiff was candid that he has not suffered pain in the broader sense. He knows how to avoid experiencing pain despite the fact that, in practical terms, there will be instances where he cannot avoid the tip of his finger coming into contact with something or other and when it does, it results in a short and sharp painful reminder to him of his injury.
137I have also considered whether the adaptations that the plaintiff has needed to make, both to his work and to his everyday life, by way of domestic activities including tying shoelaces, shaving, brushing his teeth, and the need when required to call on his wife by way of some assistance with buttoning shirt collars as well as the awkwardness encountered when toileting himself, reaches that level necessary for the injury and the consequences to the function of his right hand and/or finger to be serious.
138I do not accept that the injury has caused the plaintiff to lose what counsel for the plaintiff described as the mastery of his trade. His skill set seems plainly adequate to his employer and he has remained in employment, much to his credit, in the years since his injury. His facility in deploying his skills has of necessity altered when called upon to undertake fine processes and they may not in all instances be the same, but I am satisfied that very largely, his skill set remains unaffected.
139The plaintiff takes no medication or over-the-counter medication for pain.
140The plaintiff’s sleep is not impaired by reason of the injury.
141The plaintiff has not disclosed the loss of any recreational activities as a result of his injury. I note that the notes from Action Rehab identify the plaintiff had a hobby of collecting model cars,[125] but it was not referred to in the plaintiff’s evidence or relied upon.
[125] Exhibit D4, DCB 41.
142The plaintiff experiences a degree of frustration on occasions at work and expressed more vocally when at home, which is entirely understandable, but that level of frustration is not unexpected given the circumstances.
143The plaintiff has undergone two surgical procedure and has recovered well from them both.
144The plaintiff no longer needs or requires assistance in performing and discharging his employment.
145In truth, there is no evidence of an interference by reason of the injury with the plaintiff’s intimate life. The plaintiff’s wife deposed to certain matters that she initially raised with her husband after the injury. The evidence does not reveal that one of the consequences from injury is a crushing blow to the self-esteem of the plaintiff in his intimate relations with his wife, as counsel for the plaintiff perhaps was suggesting. Of course, a consequence of injury need not manifest itself as a crushing blow, and I rather understood counsel’s characterisation as one intended to convey to me the depth of hurt that any recoiling by a partner to an injury would result in. I accept that in a suitable case that could be a telling consideration but, as I have endeavoured to explain, I am not satisfied that this is such a case.
146I noted in evidence the plaintiff referencing frustration at home if wanting to use garden implements or undertake some handyman activities with his tools. The extent and level and frequency of these interferences and the consequences in seeking to execute them was not explored in evidence. It was not a matter mentioned in the affidavit evidence of the plaintiff.
147Having regard to all of the evidence as part of my overall assessment, I consider that when the consequences of injury I have found to exist are taken together, the plaintiff does not satisfy the narrative test, in that the pain and suffering consequences for the impairment of the right hand are not, when judged by comparison with other cases in the range of possible impairments, may fairly be described as being “more than significant or marked” and as being “at least very considerable.”
Permanent serious disfigurement
148I am also not satisfied the plaintiff has discharged the burden of proof in establishing a serious injury under paragraph (b) of the definition. I am not so satisfied that the plaintiff has established, as a matter of probability, satisfaction of the narrative test. Even were I to allow the subjective elements to be considered together with the actual disfigurement, I am satisfied the plaintiff would fail on this aspect. Whilst undoubtedly there is a disfigurement, it must satisfy the requirement of being “serious” within the meaning of the Act.
149I have had the opportunity of viewing the plaintiff’s hand and finger. I note of course that my viewing of it occurred via a remote hearing. I endeavoured to spend as much time as was needed to direct the plaintiff in such a way as to give me a good opportunity to view the finger. I was also aided by photographs taken of the hand disclosing the injury to the finger.[126] Overall, putting aside the evident loss of length that is apparent when the index finger is seen adjacent the plaintiff’s middle finger, and some raggedness in the healed area of the flap beneath the tip, and a faint scar, otherwise, the finger reveals very little by way of visual anomaly.
[126] Exhibit P8, PCB 36 to 40.
150In determining whether a permanent disfigurement is a serious injury for this particular plaintiff, I have had regard to its location (it is readily apparent and in an area that is prominent).
151I am not satisfied that the plaintiff has a permanent serious disfigurement under paragraph (b) for serious injury. I have made this determination by having regard to the objective characteristics of the disfigurement, the observations I made of it, and the plaintiff’s description of it, together with his account of pain and difficulties associated herewith. There is of course, in my process of decision making, an aspect that represents a value judgement in determining it in the range required of me under the Act.
152For the reasons expressed, the plaintiff’s application is refused. I direct that the parties file a proposed minute of orders to give effect to this judgment within 7 days failing which I will list the matter for mention.
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