Cahun v Victorian WorkCover Authority

[2023] VCC 413

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. CI-21-03686

THOMAS CAHUN	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	16 & 17 March 2023
DATE OF JUDGMENT:	17 March 2023 (ex tempore)
CASE MAY BE CITED AS:	Cahun v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2023] VCC 413

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – injury to the finger – pain and suffering

Legislation Cited:      Workplace Injury Rehabilitation Compensation Act 2013

Cases Cited:TTB SMS v Reading [2020] VSCA 203; Transport Accident Commission v Garcia [2015] VSCA 225

Judgment:                  Leave granted to the plaintiff to commence a proceeding for pain and suffering damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Macnab SC with Mr A Saunders	Maurice Blackburn Lawyers
For the Defendant	Mr R Kumar with Ms J Clark	Wisewould Mahony

HIS HONOUR:

1Thomas Cahun is the plaintiff in this proceeding.  He is a now 44-year-old married man.  On 17 December 2014 he was at work with the employer, Danken Trading Pty Ltd, when he fell when a ladder collapsed as he was descending the ladder.  As he fell, he instinctively reached out with his left hand to try and prevent a fall.  Unfortunately for him, as he reached out, he grabbed hold of a sharp metal purlin and badly lacerated his left hand ('the incident').

2There is no dispute that the incident occurred or that it resulted in injury to the plaintiff's left hand.  The proceeding before the Court is a serious injury application brought pursuant to the Workplace Injury Rehabilitation Compensation Act 2013 ('the Act').  Specifically, the plaintiff claims to have suffered a serious injury, either by way of a serious physical injury pursuant to s325(a) of the Act.  Or in the alternative, a serious injury on the basis of permanent serious disfigurement, within the meaning of s325(1)(b) of the Act.

3The proceeding was conducted in the usual manner.  The parties tendered medical reports and other relevant documents, as contained in court books, including affidavits from the plaintiff, that they each relied on.  The plaintiff gave brief oral evidence, and the Court also took the time to inspect the plaintiff's left hand, whilst he was in the witness box, to which I shall return to in a moment.

4As mentioned a second ago, the oral evidence was brief.  The parties are to be commended, in my view, upon the manner in which this proceeding was conducted, given the relatively confined dispute.  In a similar vein, the medical material is also refreshingly non-controversial, and largely in agreement.  In short, because of the incident, the plaintiff suffered a laceration of the palm and left middle finger.  In particular, a tendon laceration of the left middle finger.

5That injury required multiple surgical procedures,  four in total,  the most recent being performed by the hand surgeon, Mr Anthony Berger, on 9 May 2016.  In a report of 21 June 2022,[1] Mr Berger set out how the plaintiff suffered a laceration to his left non-dominant long finger as a result of the incident, how it was treated with two surgical procedures, resulting in what he described as a significant bowstringing of the flexor tendons, with loss of the A1, A2 and A4 pulleys, and damage to the ulnar digital nerve to the long finger. [2]   He said that was consistent with the stated cause.  He went on to describe restrictions at that point in time, and treatment options.  I will return to the medical material, limited as it is, in a moment.

[1]Plaintiff’s court book (“PCB”) 23.

[2]PCB 25.

6The plaintiff ceased all active treatment around the time of the last operation.  As was obvious when I inspected his left hand, and as shown in photographs that were tendered, for example,[3] he has an obvious deformity of the left middle finger.  The plaintiff demonstrated how he could make a fist, but when opening the fist to straighten the fingers on his left hand, the middle finger remained in a slightly crooked position, but essentially bent at 90 degrees from a straight position.

[3]PCB 61.

7At this point in the narrative, I do not consider any of what I have set out so far to be contentious, or in dispute.  Equally, I do not consider that the relevant legal principles are contentious or in dispute in this proceeding.  Briefly, the plaintiff, of course, bears the evidentiary onus to establish a serious injury.  The assessment of a serious injury is a value judgment, informed on the evidence but also informed in part by a reference to what he says about the injury, of level of pain, the level of impairment consequences, and in the context of a consideration of the broad range of possible impairments and impairment consequences, and not just those that come before the courts.[4]

[4]        See, as an example of the application of the relevant legal principles, the decision of the Court of Appeal in TTB SMS v Reading [2020] VSC A203.

8In this proceeding, the defendant submitted that the impairment consequences from the physical injury does not justify a finding of a 'very considerable' impairment consequence.  Next, the defendant submitted that the claim based on scarring and disfigurement should also fail because the scarring and disfigurement was simply not at the required level to be described as serious.

9I pause to note that the question of permanency is not in issue in this proceeding.  There is no real suggestion in the medical material of any further improvement, other than what I will describe as a possibility of further treatment options.  Also not in issue in this proceeding is the credit of the plaintiff.

10In fact, to his credit, he has managed to get on with his life, adding to his young family and returning to work.  Indeed, as much was commented upon by the surgeon, Mr John Crock, in a report dated 20 June 2022, provided to the defendant's solicitors.[5]

[5]PCB 73.

11Mr Crock, and these are my words, was clearly impressed by the stoicism of the plaintiff.  He said,

In my opinion, Mr Cahun is coping incredibly well with the difficult situation.  This is a very common sequalae from injuries where people fall off rooves and grab guttering on the way down to break their fall.  The situation is rarely uncomplicated, and it would be distressing for a young man and a father of two to have his life impacted in the way it has been.  In my opinion, he is making great effort to get on with life and to do as much as he can.[6]

[6]PCB 78.

12Based on my consideration of the documentary evidence and my limited exposure to the plaintiff in the witness box, I consider that Mr Crock has fairly summarised the plaintiff.

13Staying with Mr Crock, for a moment,  he went on in his report to describe the fact that treatment had run its course, and that any further treatment could actually make things worse.  He said he had no criticism of the treatment to date.  As mentioned, he said it was a common injury which 'typically has a poor outcome'.[7]

[7]PCB 79.

14Going back a little and remaining with Mr Crock's report, he also obtained a history of the impact on the plaintiff's social and recreational activities.  He set that out at plaintiff court book 77, where he said under a question directed towards social and occupational activities, as follows:

Prior to the accident, Mr Cahun loved playing golf, which he did socially and competitively.  He loved playing the guitar and he loved playing the violin.  He also loved restoring old cars.  Since the accident, he cannot play golf, he cannot play the guitar and he cannot play the violin.  He is able to continue with the car restoration, although it is significantly harder than it used to be.[8]

[8]PCB 77.

15What is set out in the report by Mr Crock, as I have just repeated, is broadly consistent with what the plaintiff said in his affidavits, to which there was no real challenge.  He was questioned about golf during his oral evidence.  He explained that shortly before Christmas last year, he had attempted to return to golf, and it only lasted six holes because of difficulty with his left hand.  There is no need to delve into the affidavit evidence in any great detail.  As I say, it is consistent with what Mr Crock has recorded.  The plaintiff was broadly not challenged as to it.  And I accept that evidence.

16But teasing that out a little, returning to the affidavit evidence, the plaintiff has sworn several affidavits broadly describing restrictions, as I say, as described to Mr Crock.  He has described an ache in the injured finger and a constant feeling of tightness.  He has described difficulty with daily activity, such as food preparation.  But candidly he says that, by and large, he largely copes.  Perhaps more relevantly, he has also described his involvement in music, which commenced at a young age, and has involved the violin but, perhaps more so, the guitar.

17In response to a question from me, he said that he had spent approximately four hours per week, before the injury, involved in playing the guitar, either by himself or with friends.  True it is that his guitar playing might not have been at a professional or even semi-professional level, but, nevertheless, I accept his affidavit evidence that it was his main hobby and, in his words, 'very much part of who he was'.[9]

[9]        PCB 14, affidavit sworn 15 June 2022.

18That evidence of his involvement with music and, in particular, the guitar is perhaps confirmed by his further affidavit in which he depicts six guitars and three other stringed instruments, which seem to be some form of violin, that are owned by him.  That evidence was not challenged.  I also think, consistent with the impression that both Mr Crock and I have formed of him, he gave candid evidence in the affidavits and in the witness box of still attempting to play his guitar from time-to-time post-injury.  I accept his evidence that it is not at the pre-accident level and does not give him the same level of enjoyment.

19I also accept his evidence that the hand injury makes it difficult for him to do his work.  In my view, that is a relevant consideration, not in a pecuniary loss context, which, of course, would be impermissible, but in a pain and suffering context.  That is, that work is now more difficult for him and does not give him the level of enjoyment pre-accident.  I also take into account the fact that the accident occurred the best part of a decade ago and the plaintiff is still a relatively young man.

20Moving briefly through the balance of the medical opinion,  I have considered the opinion of Dr Felix Behan, another surgeon, in which he sets out the difficult surgery that was required to treat the injury, and that the fixed flexion deformity could well mean that a joint fusion may well be required.  He does not say that that is surgery that must be undertaken.  And I note the plaintiff's evidence, which is probably understandable given he has had four significant surgeries to date, that he is not keen on further surgery.[10]

[10]PCB 52.

21I have also considered the opinion from Mr John Anstee, another surgeon, albeit an opinion that was now given some time ago, in 2016.  But as set out at plaintiff court book 97, any left-handed task has been made more difficult now for the plaintiff and, in some cases, impossible by virtue of his injury.[11]  Indeed, Mr Anstee went so far as to opine that an amputation might be worthwhile considering, which has also been discussed in some other medical reports.  Again, I accept that that is really just a possibility and not a probability.  And I accept the plaintiff's evidence that he is unlikely to proceed with that, but, nevertheless, it is some indication as to the significance of the injury, in my view, that doctors would even discuss such a procedure.

[11]PCB 97.

22Turning, then, specifically to the application based on subparagraph (a).  I accept the defendant's submission that the described pain is not at a level that could be said to be great.  I also accept that I must, of course, consider not only what he has lost but what he has retained.  And here, the plaintiff has retained an ability to work, engage in day-to-day activity, and, in his words, 'do the best he can'.  But nevertheless, in the exercise of the value judgment, I do not accept the defendant's submission that the impairment consequences are not 'very considerable'.

23I consider that the combination of the described level of pain and tightness in the finger and palm, the obvious deformity and limitation that that creates for day-to-day activity, such as the plaintiff's evidence in the witness box about having trouble even putting his left hand in his pocket, but, in particular, the substantial destruction of his main hobby of engaging in music and playing the guitar, in combination, in my view, is a 'very considerable' consequence to him.

24Next and for completeness, I have also considered the claim under subparagraph (b) to be made out.  In respect to a claim based on scarring and disfigurement, in my view the Court of Appeal in the leading decision of Transport Accident Commission v Garcia,[12] Justices of Appeal Hansen and Beach and Acting Justice of Appeal Garde provided guidance to judges of this Court on a consideration of the facts of that case and the relatively few scarring cases that had come before it, as to how such cases are to be considered.  As their Honours said at paragraph 30 of Garcia, 'the consequences of scarring and disfigurement are not likely to be something about which one can dilate at length'.[13]

[12] [2015] VSCA 225.

[13]Ibid, [30].

25In that spirit, I must say I was struck, by viewing the plaintiff's left hand, as to just how obvious the deformity of the left middle finger is and how little range of movement he has in it.  In my view, the photographs in the court book do not do it justice.  The scarring under the finger and into the palm no doubt caused – initially by the laceration and then by the repeat surgical procedures – is also obvious.  The fixed deformity is to the left middle finger of the left hand.  Save for disguising the hand by putting it in his pocket or something similar, it is going to always be on display and, as I say, is obvious.

26True it is that he does not say much at all in his affidavits specifically directed to this aspect of the claim but, equally, perhaps not much needs to be said.  It is obvious and the damaged finger is, to coin a phrase, one that, in my view, stands out like the proverbial sore thumb.  The scarring also extends down the finger and into the palm of the hand.  It involves a loss of sensation.  In my view, the scarring and disfigurement can also be said to be 'very considerable'.

27Accordingly, for the reasons given, leave is granted to the plaintiff to commence a proceeding for pain and suffering damages, for injury suffered in the course of his employment on 17 December 2014.  I shall hear from the parties as to the consequential orders.