Bynon v Ovens and Murray Constructions Pty Ltd and VWA

[2010] VCC 1629

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-09-00082

KIEREN JOEL BYNON	Plaintiff
v
OVENS AND MURRAY CONSTRUCTIONS PTY LTD	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2010
DATE OF JUDGMENT:	15 November 2010
CASE MAY BE CITED AS:	Bynon v Ovens and Murray Constructions Pty Ltd & VWA
MEDIUM NEUTRAL CITATION:	[2010] VCC 1629

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the head – disfigurement – pain and suffering only – whether consequences to the plaintiff are “serious”.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P A Jewell SC and	Clark Toop and Taylor
Mr M J Ruddle
For the Defendants	Mr J L Batten	Herbert Geer Lawyers
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 29 August 2002 (“the said date”).

2          The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.

3 The plaintiff brings this application pursuant to clause (b) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

“(b) permanent serious disfigurement.”

4          The impairment of body function relied upon in this case is facial disfigurement.

5          The impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as being more than significant or marked and at least very considerable.

6          The plaintiff relied upon two affidavits and he was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence

7          The plaintiff is presently aged twenty six, having been born on 5 December 1983. He works full time as a carpenter on a subcontracting basis.

8          Having completed Year 10, the plaintiff first worked with the first defendant in or about May 2000, for about two months and he then did a pre- apprenticeship with Biggs for another two months, until resuming with work the first defendant.

9          The plaintiff was sent by the first defendant to Becton Construction’s worksite in Puckle Street, Port Melbourne (“the work site”) where he by and large worked for about eighteen months.

10        Throughout the course of his employment with the first defendant at the work site, the plaintiff was teased and harassed by plasterers employed by Commercial Ceilings at that site.

11        On or about the said date, one of these plasterers assaulted the plaintiff, punching him in the face and head three times (“the incident”).

12        After the incident, the plaintiff felt dizzy, scared and shocked. He reported the incident to the site foreman. At that stage, the plaintiff’s nose was bleeding. He saw a big dent in the front of his face, and went into further shock.

13        The plaintiff reported the incident to HR and the representative and was then taken to the first defendant’s doctor, Dr Bloom. At that stage, the plaintiff was in an emotional state, and in shock. A head x-ray was taken. The plaintiff returned to work the next day.

14        However, the plaintiff’s nose was still bleeding and he returned to Dr Bloom for further treatment that day. In cross-examination, the plaintiff denied that on this visit he told Dr Bloom he felt well and had no pain.

15        The plaintiff then returned to work and, after a few days, he finished at the worksite.

16        Shortly thereafter, the plaintiff’s eyes filled up with blood. He had swelling, and the bump on his forehead was not going down. He was also suffering severe headaches.

17        The plaintiff was sent by the first defendant to work at Myer House, where he worked for two weeks and was then laid off. He had a couple of weeks off, then worked at his mother’s factory for two weeks.

18        The plaintiff then obtained a job with Work Co as an apprentice carpenter and was sent to different jobs.

19        On 23 October 2002, the plaintiff attended his normal general practitioner, Dr McGrath, at the Evans Street Clinic. On 1 November 2002, the plaintiff underwent a CT scan which showed a depressed fracture of the skull.

20        On 26 November 2002, the plaintiff was referred to Mr Braham, a head and neck surgeon, whom he saw a couple of times. The plaintiff also saw Mr Braham’s partner, Dr De Nardo.

21        On 22 April 2004, the plaintiff was referred to Dr Silverstein, an ear, nose and throat specialist.

22        The plaintiff completed his apprenticeship in 2004 or 2005 and kept working as a carpenter. He worked for different firms performing work as a shopfitter and commercial carpenter.

23        The plaintiff submitted a Claim for Compensation in relation to his incident injuries which was initially denied. At a Magistrates’ Court hearing in 2004, various matters as to liability were put to the plaintiff which are not relevant for the purposes of this application.

24        On 8 March 2005, the plaintiff had a further CT scan.

25        In June 2006, the plaintiff was admitted to the Freemasons Hospital, where Mr Braham operated on his face. In that surgery, Mr Braham peeled down the plaintiff’s face and inserted a metal plate into his forehead (“the first operation”). The plaintiff was hospitalised for six days.

26        On his return to work, the plaintiff had difficulty breathing. He had nasal problems and headaches.

27        On 11 November 2006, the plaintiff was admitted to Masada Hospital for a one-day procedure, where Mr Braham operated on his nose to try and fix up the plaintiff’s nasal passages (“the second operation”).

28        The plaintiff continues to suffer from nasal problems and his nose becomes congested more easily if he has a cold. His ears now tend to become blocked, which was not a problem before the incident.

29        In summer, the plaintiff finds he has more headaches and he directly avoids hot sunlight when working outside. He takes Panadol to try and get rid of the headaches but he otherwise puts up with them because he does not like taking painkillers. The plaintiff is not on any other medication and he has not seen a doctor for some time.

The Scar

30        The scar over the plaintiff’s head is long and ugly and goes across his head from ear to ear. He thinks about it all the time. He is very embarrassed about the scar, although at times his hair covers it.

31        If the plaintiff cuts his hair short, the scar is visible. He is terrified he will lose his hair like his father, who was noticeably bald in his early thirties, and his grandfather, who went bald early. When the plaintiff’s hairline recedes, everyone will be able to see the scar going right across his head.

32        Now that the plaintiff is stuck with the distinct scar. He is conscious of how he wears his hair. He can no longer change his hairstyle as he had previously liked, because of the horrible scar. He is unable to cut his hair shorter at the sides above his ears as he used to do in summer.

33        If he changes his hairstyle, people see the scar and ask him what happened. These enquiries make him uncomfortable and self-conscious and lower his self esteem. He does not like explaining how he got his scar, because it is distressing and makes him recall the incident. When he has a shower or when his hair is wet, the scar is more readily exposed.

34        The plaintiff gets anxious once people are aware of his scar and he is conscious that they get the impression there is something wrong with him. The plaintiff especially does not like workmates or employers seeing the scar. Although he is not sure, it is as if people take the view he has some sort of brain injury.

35        The plaintiff sometimes becomes stressed about his scar when he runs his fingers through his hair and he can easily feel the bumps on his head, on and around the area of the scar.

36        As a result of the insertion of the metal plate in his forehead in the first operation, the plaintiff can feel the slight dip in his forehead and he experiences a strange numb sensation when he raises his eyebrows or makes certain facial expressions.

37        The plaintiff is conscious of and reminded of his scar daily, because each time he looks in the mirror he can see that his eyebrows are not symmetrical, nor do they seem to be sitting how they used to be. One eyebrow seems higher than the other and does not look right. His changed appearance “gets” to the plaintiff a lot as he looks different to what he used to.

Employment

38        Since the incident, the plaintiff has been fully employed and he enjoys his work as a carpenter.

39        In the week prior to the hearing, the plaintiff was subcontracting as a carpenter for L H Blue Plaster. Before that, he worked for Action Glazing, primarily installing windows and aluminium doors.

40        To date, the plaintiff has three trade certificates, passing both practical and theory courses. He is now classified as a Certificate III in Building and Construction. The plaintiff has applied to do a further building and construction diploma. He has not yet been accepted in this course and has an interview in relation thereto in mid November 2010.

41        Completion of that diploma will take the plaintiff to a Certificate V level. This new diploma would enable the plaintiff to obtain a senior job, such as a project manager on a site, as opposed to doing ‘hands on’ work.

42        The plaintiff is worried that by the time he completes his diploma and applies for senior positions, his hair will start receding, revealing his scar. He feels apprehensive that a potential employer would not hire him because of the horrible scar.

Relationships

43        The plaintiff is currently single. In terms of potential relationships with women, the scar has made him more private. He would not tell a new partner that he has a scar, because it would be upsetting to see her reaction. The scar has “steered” him to be less intimate and open with women than he would like to be. He feels like he has lost a part of his identity with the scar.

44        In cross-examination, the plaintiff agreed he was in the market and on the lookout for a girlfriend. In re-examination, the plaintiff confirmed he certainly would not volunteer the fact he had a scar to any potential girlfriend. He will try and hide the fact that he has a scar. It is definitely a negative thing that he would not want to tell her about.

45        Because of his facial scarring, the plaintiff has become socially withdrawn and does not go out as much as he did before the incident, unless he really has to. The plaintiff never wants to be in another altercation because of the horrible scar. He is anxious and always on the alert of his surroundings and other people in public places and does not trust people as much as he used to.

46        The plaintiff has friends with whom he might watch a band, or have dinner. He goes to clubs rarely. He used to play in a band but was not really paid much and stopped playing because it was too hard to organise performances between band members at the time. The plaintiff works on weekends and there is a zero alcohol tolerance on his building site.

47        In cross-examination, the plaintiff agreed that he is a pretty fit twenty six year old. He goes to a mixed gymnasium, Re-Creation, in Sunbury, one to four times per week, where he uses weights, works out and uses machines. Otherwise, he generally does not have any sporting hobbies.

48        The plaintiff agreed that the histories he had given to Dr Strauss on examination in 2008 and 2010 were accurate.

49        The plaintiff agreed he had his hair shaved for the purpose of the Court case, and that if his hair is long enough the scar is covered.

Video Surveillance

50        About five minutes of a video of forty seven minutes’ duration taken on 9 February 2010 was shown. The plaintiff was seen from a distance in a work vehicle and later at the gymnasium working out with a friend. The film was relied upon by the defendant to show what the plaintiff looked like with a full head of hair.

Viewing the Scar

51        During the hearing, I was able to closely inspect the plaintiff’s facial injuries.

52        What was presented to me that was really significant was the length and nature of the scarring and the angle of the plaintiff’s face, with some distortion of his nose and eyebrows.

53        The scar goes across the plaintiff’s head from ear to ear in a sort of rippling fashion, in waves not in a straight, even line.

54        The plaintiff indicated that because of the metal plate in his forehead, he did not have the same movement in his eyebrows – ”like the nerves seemed to be a bit jittery”. If he raises his eyebrows, he does not have equal control of them, with the right tending to rise higher than the left.

55        There is also a bump on his forehead where the plate has been inserted – a little bit in from the end of the inner side of both his eyebrows. There are some bumps on the plaintiff’s head on the scar itself and near to the scar.

56        There is also a dip near the right eyebrow on the top of the plaintiff’s nose, where it looks like the skin has been pushed in, whereas it is rather closer to its original position on the other side of his nose.

Lay Evidence

57        The plaintiff’s father, Les Bynon, swore an affidavit on 10 October 2010.

58        Mr Bynon Snr thought that, in his late twenties, his hair started to recede. His hair has now been significantly receded for many years.

59        Mr Bynon Snr’s father’s hair receded noticeably, although Mr Bynon could not say at what age that occurred. Exhibited to his affidavit was a photograph of his father and his paternal grandfather, the former, in particular, showing a somewhat receding hairline.

Investigations

60        Dr McGrath organised a CT scan of the plaintiff’s facial bones on 4 November 2002. The scan showed a depressed fracture of the right frontal sinus. There was predominantly one large fragment with several smaller fragments noted, particularly medially. The fracture involved the anterior wall of the right frontal sinus.

The Plaintiff’s Medical Evidence

61        The plaintiff attended Dr Bloom at the Bridge Street Clinic on the said date following the incident.

62        On examination, Dr Bloom noted that the plaintiff was very emotional and anxious, particularly about potential damage to his skull. There was evidence of a large bruise in the middle of the plaintiff’s forehead but that did not extend down to his orbits. There was no evidence of fracture of the facial bones and examination of the central nervous system was normal.

63        At that early stage, Dr Bloom thought the plaintiff suffered with bruising of his forehead, and he noted the plaintiff was clearly very emotional and upset.

64        A plain x-ray of the plaintiff’s skull failed to show any abnormalities and there was no evidence of fractured bones.

65        Treatment consisted of reassurance, some mild analgesic tablets for pain, and the plaintiff was certified unfit for work for that day.

66        On examination the following day, Dr Bloom noted the plaintiff looked very much better, and the plaintiff told him he had no pain and felt well. There was evidence of persisting haematoma of the forehead.

67        The plaintiff was again further reassured and certified fit to return to work. He was discharged from Dr Bloom’s care.

68        Having later been provided with the CT scan of the facial bones carried out on 1 November 2002, Dr Bloom confirmed that scanning demonstrated a right frontal sinus fracture, indeed consistent with the trauma the plaintiff received in the incident.

69        The plaintiff attended Dr McGrath at the Evans Street Clinic on 23 October 2002 for treatment in relation to his incident injuries.

70        On examination, the plaintiff was noted to have a depressed fracture of the frontal bone over the frontal sinus and frequent epistaxis. The plaintiff was referred to Western Medical Imaging for a CT scan of his facial bones.

71        The plaintiff was issued with a WorkCover certificate detailing his injuries but not stating he was incapacitated for work, as his injury had been sustained nearly two months earlier and Dr McGrath thought he was quite capable of working.

72        On 30 October 2002, the plaintiff was last seen by Dr McGrath. On that attendance, the plaintiff was referred to specialist, Mr Braham.

73        Mr Braham first saw the plaintiff on 6 November 2002. He organised for the plaintiff to undergo a CT scan, which demonstrated a depressed fracture of the right frontal sinus.

74        As of 24 January 2003, Mr Braham thought the plaintiff warranted surgical intervention in the form of a cranioplasty. Mr Braham thought, apart from a post-operative convalescence, that procedure would not have any impact on the plaintiff’s ability to work as a carpenter.

75        In June 2003, Mr Braham advised Cambridge Australia that the plaintiff would require a cranioplasty to reconstruct the cosmetic defect in his face, namely, an obvious depressed fracture of the anterior wall of the frontal sinus. Mr Braham noted that the plaintiff was able to work from a physical point of view but that there may be some psychological problem caused by the deformity

76        As of September 2003, surgery still had not taken place and at that stage Mr Braham thought surgery should be performed as soon as possible because of scar contracture and the possibility of chronic sinus problems.

77        The first operation took place in June 2006. Thereafter, Mr Braham reviewed the plaintiff on 22 June 2006, at which time he noted he was interested in having a reconstructive rhinoplasty.

78        To fix the cosmetic and functional impairment resulting from the nasal fracture, Mr Braham performed a rhinoplasty and septal reconstruction on 11 November 2006 – the second operation.

79        Mr Braham considered that the second operation successfully repaired the cosmetic and functional impairments resulting from the nasal fracture.

80        On review on 8 December 2006, both the plaintiff and Mr Braham were very pleased with the outcome of the second operation. Mr Braham noted now the injury had been successfully repaired. He expected no functional impairment with the plaintiff’s nose and he considered that the plaintiff had an excellent prognosis.

The Plaintiff’s Medico-Legal Evidence

81        Mr Silverstein, ear, nose and throat specialist, saw the plaintiff on 22 April 2004 for medico-legal purposes.

82        Examination on that day revealed a 1.5 to 2 centimetre depressed area of the skull in the region of the medial part of the supra-orbital margin on the right side.

83        In Mr Silverstein’s opinion, the surgery suggested by Mr Braham should be considered.

84        Mr Silverstein thought that the surgery should go ahead because of the plaintiff’s cosmetic appearance, and more importantly, the functional situation where this lesion could lead to a narrowing of the natural drainage passage from the frontal sinus to the nose, which could lead to the development of chronic sinus disease.

85        Mr Behan, plastic surgeon, examined the plaintiff for medico legal purposes on 10 July 2006, following the first, but before the second operation.

86        At that stage, the plaintiff complained of difficulty breathing and he had a deformity of his nose which, in Mr Behan’s view, required further reconstructive surgery.

87        Mr Behan reported that after the first operation, there was a scar visible through the plaintiff’s hairline which would be permanent. He noted that the plaintiff was concerned that with the family history of hair loss, the scar will be revealed by any alopecia, which was the point of exposure of cranial facial scalp elevation into the orbital regional. Mr Behan noted that affected the way the plaintiff had his hair cut and he combed it in a certain way to cover the scar.

88        Professor Cook, neurologist, examined the plaintiff for medico-legal purposes on 18 October 2008.

89        Professor Cook noted the plaintiff’s main problems immediately after the incident and indeed, for the first couple of years related to the psychological side of things, the plaintiff was extremely self-conscious of the cosmetic impairment and this resulted in an anxiety state.

90        Professor Cook thought the plaintiff had not suffered any disturbance of neurological function, although there had been some minor memory problems, but they had not affected the plaintiff’s activities significantly.

91        On examination of the plaintiff’s head, Professor Cook noted there was a well- healed surgical scar under the hairline passing from above the zygomatic arch to vertex to the other side. There was a very minor asymmetry of the plaintiff’s forehead with the frontal bone being slightly more prominent on the left side above the medial brow. A small step was palpable at the site of repair.

92        There was no impairment of motor function over the region, nor were there any sensory abnormalities.

93        Professor Cook thought the plaintiff had suffered a depressed fracture and fractured nose, with such injury resulting in an anxiety state. There had been some minor cosmetic consequences and also a mild closed head injury.

94        Dr Dennis Maclean, clinical geneticist, provided a report on the likelihood of male pattern baldness occurring in a twenty five year old male with a family history of early onset baldness.

95        Dr Maclean noted that that the clinical question stemmed from the surgical treatment of the plaintiff’s facial bone fractures which, as a consequence of the first operation, left him with a bicoronal incisional scar in the coronal plate.

96        The history provided by the plaintiff to Dr Maclean indicated early onset balding in the plaintiff’s father and paternal grandfather from an unspecified age. Dr Maclean was also provided with updated cranial photographs of the plaintiff.

97        Dr Maclean noted a sinusoidal bicoronal incision scar was clearly visible, running between the anterior auricle helical margins of each ear. The scar was located behind the plaintiff’s existing hairline and utilised a sinusoidal pattern.

98        The images showed the scar to be well-healed and there were no areas of widening, atrophy, inflammation or hypertrophy.

99        There were regions of the forehead where the scar appeared to be more than a few millimetres behind the hairline, particularly on the left lateral profile. Scarring in those regions was predicted to become visible in the event of balding.

100       Dr Maclean noted the prevalence of hair loss was determined principally by age, ethnicity and family history. In the broader community, at the age of thirty, a quarter of males report significant hair loss, increasing to two thirds by the age of sixty.

101       Men whose fathers had hair loss were two and a half times as likely to have some level of hair loss compared to those who had no hair loss.

102       Dr Maclean relied on studies to help debunk the notion that the male pattern baldness was an “X-linked” disorder.

103       Dr Maclean concluded, in the plaintiff’s case, the family history of early onset baldness was indicative of an autosomal dominant disorder with a major genetic contribution from the paternal image. He noted the plaintiff was at a two to two and a half fold risk of androgenic alopecia, based on his family history. The plaintiff had early type II Hamilton Norwood changes and the likelihood of established type II-type III features by the age of thirty was high.

The Defendants’ Medical Evidence

104       The defendants tendered a report from Dr Bloom to Detective Sergeant Jason McGregor, dated 17 January 2003, detailing the plaintiff’s progress since the incident. That report was very similar to Dr Bloom’s report relied upon by the plaintiff.

105       Dr Strauss, psychiatrist, examined the plaintiff on behalf of Cambridge Insurance on 20 February 2003 and on 17 November 2004.

106       These examinations are somewhat outdated as they precede the two operations.

107       Dr Strauss saw the plaintiff on a third occasion, on 3 December 2008.

108       The plaintiff told Dr Strauss that he enjoyed his work and he drove a car. He told Dr Strauss he enjoyed a good social life, fished and played the guitar. He denied any significant psychiatric problems.

109       At that time, the plaintiff had been in a satisfactory relationship with a woman for two years and his sex life was good. He was quite positive about life and not depressed, irritable or anxious.

110       Dr Strauss concluded the plaintiff had no psychiatric illness or condition and he did not warrant a psychiatric diagnosis.

111       Dr Strauss last saw the plaintiff on 30 March 2010.

112       The plaintiff then told him that he continued to work full time as a carpenter and he got on with people and liked his job. He saw friends but he was not in a relationship. He enjoyed an active social life and liked going to the gymnasium.

113       The plaintiff told Dr Strauss that he had a scar under his hairline and when his hair was short it was visible, and that he was self-conscious of the scarring and believed it was ugly. He got tired of people asking him about it. The plaintiff denied any other psychiatric symptoms.

114       Dr Strauss noted that the plaintiff’s mood was good. The plaintiff described himself as happy, denying any tearfulness or suicidal ideation, or any problems sleeping.

115       Dr Strauss concluded the plaintiff was not anxious or depressed and he was orientated in time, place and person, and there was no evidence of any psychosis or delusions or thought disorder.

116       Professor John Balla, consultant neurologist, examined the plaintiff at the request of Mills Oakley, Solicitors, in July 2004.

117       In Professor Balla’s view, the most plausible explanation was that a fracture occurred at the time of incident and it may not have been possible to see a fracture of the sinus on a skull x-ray.

118       Professor Balla noted that the plaintiff had some headaches and was anxious about the appearance of the depression in his forehead. He thought that the ear, nose and throat specialist’s recommendation of a surgical procedure would be reasonable. At that stage, Professor Balla did not think the plaintiff’s condition had stabilised, in the sense that he was due to have surgery.

119       Dr Kevin Kane, ear, nose and throat specialist, examined the plaintiff on 31 October 2008.

120       The plaintiff told Dr Kane that after the second operation, he felt very much better, his airways were now usually free and he had only the occasional headaches which were much better over the last year or so.

121       The plaintiff was then working full time as a carpenter and he did not have any problems with his work. He did not feel that his injuries were restricting either his social or workplace life in any way.

122       On examination, the plaintiff’s ears, nose and throat were found to be quite normal. There was evidence of a part septal rhinoplasty, but the result of that was very satisfactory, and the plaintiff’s airways were normal.

123       Dr Kane noted the plaintiff’s forehead was quite normal, both to sight and palpation, and the depressed fracture had been fully restored to its normal position. Examination of the plaintiff’s skull revealed a very faint bicoronal scar running through his hair.

124       Having reviewed the March 2006 CT scan, Dr Kane concluded the plaintiff sustained a fractured anterior table of his right frontal sinus, together with a fractured nose, and septal deformity. All those problems had been corrected with appropriate surgery, which included a cranioplasty performed through a bicoronal incision through the plaintiff’s scalp, and subsequently a septal rhinoplasty.

125       In Dr Kane’s view, the plaintiff was now symptom free and able to carry out his life normally, and he had an excellent prognosis. Dr Kane noted that apart from a faint scalp scar, there was no permanent impairment resulting from the injury.

Overview

126       I am satisfied that the plaintiff suffered a compensable injury in the incident on the said date.

127       The plaintiff’s fractured skull required cranioplasty surgery in June 2006, which has resulted in the disfigurement which is the subject of this application.

128       Further surgery undertaken later that year was to address the cosmetic functional impairment resulting from the nasal fracture and was reported by treating surgeon, Mr Braham, to be successful. He did not expect functional impairment with the plaintiff’s nose and there was an excellent prognosis.

129 I accept that an application under subsection (b) of the Act should be considered in the same way as an application under subsection (a). As Callaway JA said in Ingram v Ingram & Transport Accident Commission [1996] 2 VR 435 at 438:

“Quite apart from authority, 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 bodily function, severe long-term mental illness and loss of an unborn child.”

130       As the Court of Appeal has stated in many cases, the determination of serious injury involves a value judgment in which matters of fact, degree and impression are operative: see also Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187 at 41.

131       This is not the sort of case where the fact that the plaintiff works full time is of particular relevance in considering the seriousness of his disfigurement.

132       Further, I accept that the plaintiff effectively conceded that since surgery, he continues to engage in a wide range of activities, as was the case prior to the incident.

133       There is nothing left to be done in terms of treatment. No revisionary surgery has been suggested. The plaintiff’s condition has stabilised and it is permanent.

134       When dealing with the issue of disfigurement in the matter of Baker v Transport Accident Commission [1997] 1 VR 662, Brooking J held that matters such as “… the number of scars, their location, their size and their degree of obviousness” was a matter for consideration.

135       The plaintiff’s scar stretches across his head from ear to ear, a matter of millimetres behind his present hairline. It is not a linear scar. It runs in a pattern of waves, almost with a ‘snake like’ formation with undulations and modules, such the scar does not have a smooth surface.

136       I accept the submission of counsel for the plaintiff that one could hardly envisage a scar of greater dimension going from ear to ear across the scalp.

137       Secondly, in relation to its location, the scar is going to be one of the more obvious ones, particularly with hair loss in this particular man, because it is visible from both sides as well as the front. It is ugly and unsightly because of its location and its nature, not being a fine lineal scar.

138       There are bumps on the scar and on the plaintiff’s head in the vicinity of the scar. In addition, there is a bump resulting from the presence of the metal inserted in the plaintiff’s forehead.

139       The plaintiff is unable to raise both eyebrows symmetrically. The left eyebrow is noticeably lower than the right and there is an indentation just near the right eyebrow on the side elevation view.

140       Whilst it was submitted it was a matter for me as to whether the bump, the eyebrow disfigurement and the scarring would be combined, counsel for the defendants conceded that there is no authority that such an aggregation is not permissible when the disfigurement arises from the same incident: see Lu v Mediterranean Shoes Pty Ltd & Ors [2000] VSCA 65, which was authority for the proposition that impairments from separate accidents are not to be aggregated.

141       Brooking JA, in Baker v TAC supra looked at a number of scars together and accepted he could aggregate the whole of the scarring

142       As counsel for the defendants correctly submitted, the seriousness of the disfigurement had to be considered as at the time of the hearing see Swannell v Farmer (1999) 1 VR 229 and s.134AB (38)(j) of the Act.

143       Clearly the scar is present at the time of hearing and it is permanent.

144       Whilst the long ugly scar is not visible if the plaintiff has a full head of hair worn in a longer conventional style, I accept that it is visible if he wears his hair in certain styles and when his hair is wet. As his hair recedes, a situation which is likely to occur, in Dr Maclean’s view, on the plaintiff’s family history, some time in his early thirties, the scar will become increasingly visible.

145       Whilst it was submitted by counsel for the defendants that Dr Macleans’ view seemed to be predicated essentially on the genetic speculation that some time in the future, the scar would be readily apparent, this evidence was not challenged.

146       Clearly, the other various facial deformities resulting from the incident and related surgery are present no matter how the plaintiff wears his hair.

147       In Ingram v Ingram & Transport Accident Commission (supra), the Court of Appeal left open the question of whether a subjective element is involved in the assessment of permanent disfigurement. The Court found it unnecessary to determine that issue on the appeal before it.

148 At page 440 of that judgment, Charles JA held that in determining whether a disfigurement brought about by scarring was “serious” for the purposes of s.93(17)(b) of the Transport Accident Act, the impact of the disfigurement upon the particular person had to be considered, and that in every case other than a clear case of “serious injury”, a subjective element was plainly involved in the assessment. In his view, the fact a scar causes continuing distress ought to be taken into account.

149       Callaway JA took a slightly different view, saying:

“… there is much to be said for the view that the psychological dimension of an injury, or at least the part that can be described as mental or behavioural, is primarily to be considered by reference to para(c) of the definition and that it would be an unusual case where it was appropriate to lead evidence of subjective response to disfigurement. … .”

150       Considering the plaintiff’s subjective response to his facial disfigurement, I accept that the plaintiff is self-conscious of his scar, particularly in his contact with potential partners of the opposite sex. Further, given the nature of the scarring, he is concerned that when the scar becomes more visible it will affect his employability and chances of holding a senior supervisory position for which he has made plans to undertake further training.

151       In my view, the obvious disfigurement to the plaintiff’s face and head resulting from the scarring and associated deformities, considered even apart from any subjective response thereto amounts to a “serious injury” within sub- paragraph (b) of the definition.

152       Accordingly, leave is granted to the plaintiff to bring proceedings for damages for pain and suffering.

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