Cater v Victorian WorkCover Authority
[2024] VCC 2073
•20 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-02372
| TIM CATER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 November 2024 | |
DATE OF JUDGMENT: | 20 December 2024 | |
CASE MAY BE CITED AS: | Cater v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2073 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – right middle finger/right hand injury – pain and suffering – credit – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013, s325(1), s335
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kesper v Victorian WorkCover Authority [2024] VSCA 237; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Porto v Design Line Cabinets Pty Ltd (Deregistered) & VWA [2012] VCC 1645; MacDougall v Victorian WorkCover Authority [2021] VCC 1292; Sorrentino v Victorian WorkCover Authority [2022] VCC 581; Razai v Victorian WorkCover Authority [2022] VCC 1732; Robinson v Victorian WorkCover Authority [2023] VCC 1948; Hussain v Victorian WorkCover Authority [2023] VCC 2283; Brown v Bayside Estimating Services Pty Ltd [2024] VCC 519; Na v Victorian WorkCover Authority [2024] VCC 476
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Fernando | Slater and Gordon Ltd |
| For the Defendant | Mr M Clarke | Minter Ellison |
HIS HONOUR:
Background
1The plaintiff, Mr Tim Cater, is fifty-three years of age. On 12 December 2019, in the course of his employment with MC Labour Services Pty Ltd (“MC Labour”), Mr Cater suffered an injury to the middle finger of his right and dominant hand (“the incident”).
2Mr Cater said:
(a) he was working on a construction site when a window slammed shut on his right hand;
(b) as a result of the trauma, the end of his right middle finger was missing and there was bone sticking through the skin;
(c) he was taken to the Cabrini Hospital;
(d) he underwent surgery that day;
(e) he has lost about a centimetre of his right index finger and there is nerve and tendon damage.
3Mr Cater said, while the tip of the right middle finger has healed, he has ongoing pain, numbness, hypersensitivity, intolerance to the cold and a loss of dexterity.
4Mr Cater says the injury to his right middle finger/right hand is a serious injury for pain and suffering purposes.
5The Victorian WorkCover Authority (“VWA”) is the worker’s compensation insurer for MC Labour. It denies Mr Cater has suffered a serious injury.
What is the nature of this proceeding?
6This is an application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act2013 (“the Act”). Mr Cater relies upon paragraph (a) of the definition of “serious injury” in s325(1) of the Act. That is, his right middle finger/right hand injury is a “permanent serious impairment or loss of a body function”.
7For Mr Cater to be successful, he must establish that the consequences from his injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are “more than significant or marked” and “at least very considerable” as per the narrative test set out in s325(2)(b) and to s325(2)(c) of the Act.
What are the issues for the Court’s determination?
8The VWA conceded Mr Cater has suffered a compensable injury and he continues to suffer some objective consequences. However, the VWA also said:
(a) Mr Cater’s credit had been impugned and the Court ought be reluctant to accept his evidence in the absence of objective evidence to support it;
(b) the application was a range case and Mr Cater did not reach the threshold.
9That said, the issues for the Court to determine in the application include:
(a) as to Mr Cater’s credit and reliability and whether I can accept his evidence;
(b) which of the medical opinions should be accepted and what assistance do they provide;
(c) does Mr Cater’s right middle finger/hand injury satisfy the serious injury test?
What conclusions does the Court reach in respect to Mr Cater’s credit and reliability?
10 As in a great number of cases of this type, Mr Cater’s credit and reliability is critically important.[1]
[1]See, for example, the analysis of the Court of Appeal in Johns v Oaktech Pty Ltd [2020] VSCA 10, particularly at paragraph [76]
11The VWA said Mr Cater’s credit had been impugned in the course of the hearing.
12The VWA attack centred on:
(a) one sentence in Mr Cater’s first affidavit in which he referred to his pre-incident participation in golf; and
(b) the assertions by Mr Thomas Robbins, hand, plastic and reconstructive surgeon, that Mr Cater was exaggerating.
13I shall set out my analysis of both these attacks.
14Firstly, in respect to Mr Cater’s pre-incident participation in golf.
15Mr Cater, in his first affidavit, said:
“I was an avid golfer before the injury and played weekly at Yarrambat Golf Course.”[2]
[2]Paragraph [15] at Amended Plaintiff’s Court Book (“PACB”) 15 (“the offending sentence”)
16In his second affidavit, Mr Cater said:
“I stopped playing golf because of my hand injury. I just could not hit the ball without getting the sudden sharp pain and I therefore stopped playing. ... However, it is really the golf that I miss allot (sic) and I was playing golf regularly right up until I suffered the injury.”[3]
[3]Paragraph [9] at PACB 19
17In the course of the hearing, Mr Cater:
(a) agreed he was not playing golf weekly at Yarrambat in the period prior to his injury;
(b) agreed he had not played weekly at Yarrambat for many years and should not have made the assertions in the offending sentence;[4]
[4]Transcript (“T”) 14, Lines (“L”) 10-16
(c) said he had not played at Yarrambat for ten years;[5]
(d) said, prior to the incident, he:
(i)was not playing golf weekly;[6]
(ii)was a social golfer;[7]
(iii)played golf a lot more regularly than three monthly;[8]
(iv)played golf monthly;[9]
(v)did not have a set routine about how frequently he played golf;[10]
(vi)in the year or so before his injury, said he was playing golf every few weeks;[11]
(vii)when he was living nearby the Yarrambat course many years prior, was playing weekly.[12]
[5]T18, L28-29
[6]T15, L9
[7]T15, L17-19
[8]T15, L20-21
[9]T16, L5
[10]T16, L21-26
[11]T18, L2-3
[12]T17, L19-22
18While Mr Cater may have, decades prior, played weekly at Yarrambat, this was clearly not the case in the period immediately prior to his injury.
19I accept the offending sentence is a misrepresentation which sought to advance Mr Cater’s application.
20I accept Mr Cater should:
(a) not have sworn the first affidavit with the offending sentence;
(b) alternatively, have identified the offending sentence as a misrepresentation in his second affidavit, and then adopted the more accurate description of “playing golf regularly” (which indeed was his evidence in his second affidavit);[13]
(c) alternatively, have sought leave to correct the offending sentence in his evidence-in-chief.
[13]Paragraph [9] at PACB 19
21I now move to the comments made by Mr Robbins.
22I will outline in greater detail my findings in respect to the medical evidence later in this judgment. However, it is appropriate I deal with Mr Robbins’ assertion of exaggeration while dealing with this issue of credit.
23Mr Robbins examined Mr Cater for the VWA on 21 February 2024.
24Mr Robbins’ assessment was, for reasons never explained to me, conducted by video link.
25Mr Robbins said:
“The worker to some extent I believe is exaggerating his difficulties. For example, I see no reason why he could not continue to play golf.”[14]
[14]Question (j) at Defendant’s Court Book (“DCB”) 41
26Mr Robbins reached this conclusion without having the benefit of an in-person clinical examination. I accept that in some cases that may not matter. However, I do not accept this is such a case. Where assertions of the most serious kind are being made by Mr Robbins, it is incumbent upon him to have the complete clinical picture. Given the nature of Mr Cater’s injuries, I accept there is significant benefit to be gained from a hands-on clinical examination, including assessments such as two-point discrimination testing. The failure to undertake an in-person clinical examination impacts significantly on the weight that can be given to Mr Robbins’ opinion.
27As I will explain in greater detail later in this judgment, having considered all of the evidence, I accept Mr Cater’s complaints of pain and pain-related impairment to be organically based and genuine.
28I do not accept Mr Robbins’ assertions Mr Cater is exaggerating his pain, impaired sensation, hypersensitivity, intolerance to the cold and the consequences of his injuries generally.
29I do not accept Mr Robbins’ assertions can properly be the foundation of an attack on Mr Cater’s credit.
30Moving to the balance of my assessment of Mr Cater’s credit and reliability.
31I identify three additional matters which are relevant to my assessment:
(a) my observations of Mr Cater in the witness box;
(b) my observations in respect to Mr Cater’s work ethic in the face of injury;
(c) my analysis of the evidence of Mr Phillip Johnston.[15]
[15]PACB 21-22
32Firstly, my observations of Mr Cater in the witness box.
33I found Mr Cater to be a person:
(a) Who was a straightforward witness, who did his best when giving evidence.
(b) When giving his oral evidence, was prepared to make concessions. Mr Cater is a person whose memory for events/dates is not perfect. Mr Cater recognised this and on numerous occasions conceded he was not able to give precise dates/sequences to events. He also acknowledged the offending sentence to be wrong.
(c) Who did not seek to embellish and was genuine in his presentation.
34Overall, I accept Mr Cater, when giving his oral evidence, was an impressive witness. In colloquial terms, I accept he “told it as it was”.
35Secondly, I make reference to Mr Cater’s work ethic in the face of injury.
36Subsequent to the incident, Mr Cater:
(a) returned to work with MC Labour after a short period of time;
(b) endeavoured to keep working with MC Labour, but due to pain could not cope with the work;
(c) then obtained alternative employment as a truck driver, which, although it paid less, better suited his ongoing right middle finger/hand injury problems;
(d) notwithstanding truck driving was not his preferred employment option, has continued in this work right through to the time of the hearing.
37I also note, back in 2010 Mr Cater suffered a back injury which necessitated spinal surgery. Subsequent to the surgery, Mr Cater got himself back to full-time work, and at the time of the incident was undertaking, what I accept to be, heavy physical work.
38I accept Mr Cater to be a hardworking and conscientious man. He is not work-shy, nor has he sought to dwell on the various injuries and health issues which he has encountered over the years. Mr Cater presents as a man who, when faced with injury or health issues, has sought to get on with his life as best he can, and, again, to adopt a colloquial term, “has a go”.
39Thirdly, I move to the evidence of Mr Johnston.
40While Mr Johnston’s affidavit is not lengthy, I accept his evidence to be very helpful in my determination. Mr Johnston corroborates Mr Cater’s evidence on the important issue of impaired dexterity. Mr Johnston’s evidence paints a picture which is consistent with:
(a) my assessment of the medical evidence and, in particular, the opinion of Mr Damon Thomas, plastic and reconstructive surgeon;[16]
(b) my observations of Mr Cater as a man who has sought to get on with his life and do the best he can;
(c) Mr Cater’s evidence.
[16]See Mr Thomas’s report, 13 August 2024 at PACB 30-36
41Turning now to my conclusions.
42Given my findings that the offending sentence is, in blunt terms, a misrepresentation, and given my further observations in respect to Mr Cater’s credit and reliability, where does that leave me?
43Put another way, how do I weigh up the black mark against Mr Cater’s credit flowing from the offending sentence, with the positive findings I have reached based on other aspects of his presentation and the overall evidence?
44Importantly, for my conclusion, I accept there was no theme of misrepresentation, overstatement, or just straight out lying in Mr Cater’s affidavit evidence or in the histories provided to the medico-legal assessors. I accept Mr Cater’s histories, and his complaints of his ongoing consequences, are, putting aside the offending sentence, otherwise reasonable.
45Further, I have been re-assured in respect to Mr Cater’s general veracity by the weight of other evidence, including:
(a) Mr Thomas’s evidence, particularly in respect to his:
(i)findings on clinical examination;
(ii)findings on two-point discrimination;
(iii)overall conclusions;
(b) Mr Johnston’s observations;
(c) Mr Cater’s work history and work ethic in the face of injury and other comorbidities.
46I pause here to note there is a tendency in such applications where credit issues flow from affidavit evidence, to blame counsel who drafted the affidavit and/or the plaintiff’s solicitors for not addressing the offending representations. Neither Mr Cater, nor Ms Fernando, sought to do so. Rather, Mr Cater acknowledged it was his misrepresentation and his error.
47Having been in the unique position of observing Mr Cater in the witness box and having considered all the evidence:
(a) I accept the offending sentence to have been a misrepresentation which should not have been made;
(b) I do not accept Mr Cater to be an inherently dishonest man;
(c) I accept Mr Cater to be a decent, hardworking and generally straightforward man;
(d) I do not accept Mr Cater’s overall credit has been generally impugned, nor his evidence to be generally unreliable.
48It is through this lens that I assess this application.
Which of the medical opinions should be accepted and what assistance do they provide?
49Moving now to the medical evidence.
50I shall:
(a) firstly review the treating medical practitioner evidence; then
(b) set out my analysis of the medico-legal evidence.
The treating medical practitioner evidence
51Moving to the treating medical practitioner evidence.
52I have:
(a) from the Cabrini Hospital:
(i)the operation report dated 12 December 2019;
(ii)Emergency Department notes;
(iii)a discharge summary;
(b) reports of Mr Nicholas Houseman, plastic and reconstructive surgeon, 16 December 2019 and 11 May 2021.
The Cabrini Hospital materials
53The Cabrini Hospital evidence confirms:
(a) Mr Cater suffered a degloving injury to the distal third of his right middle finger distal phalanx;
(b) the debridement and repair of the right third finger amputation was undertaken by Mr Houseman on 12 December 2019;
(c) Mr Cater had an overnight admission.
Mr Houseman
54Turning now to Mr Houseman’s evidence.
55Mr Houseman said:
(a) Mr Cater suffered extensive damage to his right middle finger through the distal phalanx;
(b) he operated to:
(i)amputate the non-viable fingertip and remove loose bone;
(ii)reconstruct the finger with a neurovascular island flap and full-thickness skin graft;
(iii)repair the nailbed;
(c) he referred Mr Cater for hand therapy;
(d) Mr Cater required desensitisation of the fingertip;
(e) he last assessed Mr Cater on 16 March 2020 and at that time Mr Cater had returned to work;
(f) he was unsure about the residual consequences to Mr Cater as far as pain, anxiety or distress flowing from the injury;
(g) confirmed Mr Cater has a degree of disfigurement to the right middle finger.
The medico-legal evidence
56Moving now to the medico-legal evidence.
57In chronological order, I had medico-legal reports from:
(a) Professor Vernon Marshall, Emeritus of Surgery, dated 29 November and 21 December 2021 (which appear to be the same report);
(b) Mr Robbins, dated 27 March 2024;
(c) Mr Thomas, dated 13 August 2024.
58I will review this evidence in this order.
Professor Marshall
59Professor Marshall assessed Mr Cater on 18 November 2021 for the VWA. This assessment was seemingly for an impairment benefit application under the statutory scheme.
60In the background section of his report, Professor Marshall outlined the treatment provided by Mr Houseman. Professor Marshall noted Mr Cater:
(a) initially returned to work on light duties and had progressed to full duties by March 2020;
(b) had persisting pain;
(c) only worked for a short time back with MC Labour before resigning;
(d) now works as a full-time truck driver and is coping with this work.
61Professor Marshall had Mr Cater complete various questionnaires and undertook an upper-extremity impairment evaluation assessment. Professor Marshall assessed Mr Cater as suffering a 6 per cent whole person impairment by reason of his injured right middle finger.
62Professor Marshall went on to say Mr Cater:
(a) continues to work as a truck driver, but with some continuing paraesthesia;
(b) used to enjoy golf, but now the jarring of his finger has forced cessation of this;
(c) gave his history in an open and co-operative manner;
(d) displayed movement at the time of the examination, which was consistent with the range of motion measured during formal examination;
(e) had an impaired range of right middle finger movement;
(f) had some paraesthesia, but full sensation.
63Professor Marshall annexed various questionnaires to his report. Without going through these chapter and verse, I note Mr Cater reported:
(a) he had a base level pain of 3/10;
(b) physical activities made his pain worse;
(c) he had quite a bit of difficulty in respect to recreational and sporting activities. Indeed, in one answer he identified “severe difficulty”;[17]
(d) it was moderately difficult to work as he would like.
[17]DCB 17
64Given the issues of credit raised by the VWA, I note Professor Marshall’s observations:
(a) Mr Cater gave his history in an open and co-operative manner;
(b) there is no inconsistency between his formal examination and his other observations of Mr Cater in the course of the assessment.
Mr Robbins
65As I have already noted, Mr Robbins assessed Mr Cater for the VWA on 21 February 2024 via video link.
66Mr Robbins said Mr Cater told him his present complaints are:
(a) the injury site aches recurrently;
(b) he has diminished sensation:
(i)on the tip of the amputation;
(ii)along the sides of the digit distally;
(iii)on the radial side to the level of the distal interphalangeal joint;
(iv)on the ulnar side halfway along the distal phalanx.
67Mr Robbins, when asked to provide details of his clinical examination and record any measured loss of sensation, range of movement, grip strength or other functions of the hand, said:
“He has a neat very distal amputation through the distal part of the distal phalanx of his right middle finger. The nail was shortened but normal in appearance otherwise. The scars of repair are not visible on the video and are considered not significant. His complaint of altered sensation at the tip of his amputation and on the sides of his distal phalanx. It is not possible to test for two-point sensitivity as the examination was by telehealth. He has a full flexion and extension of all fingers including the middle finger.”[18]
[18]Question (f) at DCB 40
68Mr Robbins went on to say:
“I believe the effects of the work-related injury have ceased except for the very slight impairment, if any, due to the slight shortening of the distal phalanx of his right middle finger.
I cannot explain the claimed altered sensation. The documents show that Mr Houseman repaired with a neurovascular flap presumably therefore sensation was retained.”[19]
[19]Question (i) at DCB 41
69As I have already noted, Mr Robbins went on to say “[Mr Cater] to some extent I believe is exaggerating his difficulties”.[20]
[20]Question (j) at DCB 41
Mr Thomas
70Mr Thomas examined Mr Cater for his solicitor on 13 August 2024.
71Mr Thomas said Mr Cater told him his current complaints include:
(a) right middle finger pain;
(b) swelling;
(c) altered sensation on the tip of the finger;
(d) intolerance to the cold;
(e) difficulty with fine tasks;
(f) the need to transition away from his job as a concreter because of the altered sensation, pain, cold intolerance and reduced capacity for doing this work;
(g) he can no longer play golf and cricket.
72Mr Thomas said, on examination:
(a) there is an amputation of the right middle finger through the mid-distal phalanx;
(b) there is a beak nail deformity;
(c) there is a single scar present on the volar aspect which measures 30 millimetres in length and 3 millimetres in width;
(d) the scar is hypopigmented and hypersensitive to touch;
(e) he has partial loss of two-point discrimination over the radial border of the middle finger over the distal 30 per cent, in that there is loss of two-point discrimination at 6 millimetres, but present at 15 millimetres;
(f) the ulnar side of the finger sensation is normal.
73As to diagnosis, Mr Thomas said:
“The overriding diagnosis here is that of a crush injury to the right middle finger with complete amputation through the mid distal phalanx. He has post-traumatic issues with pain, hypersensitivity, cold intolerance, swelling and a beak nail deformity. He has a post-traumatic and post-surgical scar present.”[21]
[21]Question 1 at PACB 33
74Of Mr Cater’s present symptoms, Mr Thomas said:
“Current issues are that of right middle finger pain, swelling, altered sensation, cold intolerance, and cosmetic issues to do with the appearance. There is altered sensation as documented with partial loss of two-point discrimination over the radial border in the terminal 30% of the finger. Sensation in the rest of the finger is normal.”[22]
[22]Question 3 at PACB 33
What conclusions do I reach from the medical evidence?
75Moving now to my conclusions from the medical evidence.
76Firstly, there can be no doubt Mr Cater suffered a very traumatic injury to the right middle finger which required urgent revisionary surgery.
77Secondly, I accept Mr Cater has had a satisfactory, but by no means perfect, outcome consequential to the incident and the resultant revisionary surgery.
78Of the medical evidence, it is the evidence of Mr Thomas which provides me with the greatest assistance. Mr Thomas:
(a) Is the only specialist to have assessed Mr Cater in person since Professor Marshall back in late 2021.
(b) Clearly set out his findings on examination, which confirmed various ongoing abnormalities. In particular, the result of two-point discrimination testing.
(c) Identified and set out a diagnosis of:
(i)post-traumatic pain;
(ii)hypersensitivity;
(iii)altered sensation;
(iv)cold intolerance;
(v)swelling.
(d) Expressed opinions which I accept to be generally consistent with the balance of the medical evidence, putting aside Mr Robbins.
79I do not accept the evidence of Mr Robbins, who said, apart from a very slight shortening of Mr Cater’s right middle finger, the effects of the work-related injury have ceased. Mr Robbins:
(a) did not undertake an in-person clinical assessment or undertake a two-point discrimination test;
(b) took no heed of the complaints of pain, hypersensitivity, altered sensation, cold intolerance or swelling, which I accept Mr Cater suffers;
(c) makes a bland assertion of exaggeration in circumstances where the underlying premise is, I find, fundamentally flawed.
80From the medical evidence, and in particular Mr Thomas’s evidence, I accept Mr Cater:
(a) has an organic basis for his complaints of pain and dysfunction resulting from his right middle finger injury;
(b) does suffer:
(i)ongoing pain;
(ii)altered sensation;
(iii)hypersensitivity;
(iv)cold intolerance;
(v)impaired dexterity;
(c) will continue to suffer these symptoms permanently.
General observations on the “serious injury” test
81Before moving to complete my determination of Mr Cater’s application, I make some general comments in respect to the “serious injury” test.
82It is Mr Cater who has the onus of proof.
83To establish “serious injury”, the threshold is high.
84As set out in Stijepic v One Force Group Aust Pty Ltd & Anor,[23] while the evidence may disclose pain and suffering consequences which are both “marked” and “significant,” for Mr Cater to be successful, I have to be persuaded that the consequences due to the right middle finger/hand injury can fairly be described as being “more than significant or marked” and being “at least very considerable”.
[23][2009] VSCA 181
85The process to be followed in the assessment of pain and suffering consequences was considered by the Court of Appeal in the much-quoted case of Haden Engineering Pty Ltd v McKinnon.[24] The observations made by Maxwell P provide me with some assistance in respect to the tasks which I am to undertake in the completion of this aspect of my determination.[25] That said, Maxwell P’s observations are descriptive, not prescriptive.[26]
[24](2010) 31 VR 1 (“Haden”)
[25](Ibid). See, in particular, Maxwell P at paragraphs [9]-[17]
[26] Kesper v Victorian WorkCover Authority [2024] VSCA 237 at paragraph [101] (“Kesper”)
86Further, it is the “collective nature” of the pain and suffering consequences which must be considered. That is, the Court must consider “globally” all of Mr Cater’s:
(a) actual experiences of pain; together with
(b) the disabling and debilitating effects of the impairment.[27]
[27]Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [114] (per Hargrave AJA)
87As a part of my analysis, I must give consideration to not only what it is Mr Cater says he has lost, but also what it is he has retained.[28]
[28]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”)
88As the Court of Appeal said in Ellis Management Services Pty Ltd v Taylor[29] in relation to range cases:
“The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range. … .”[30]
[29][2013] VSCA 326 (“Ellis”)
[30](Ibid) at paragraph [59]
89Further, as the Court of Appeal recently noted in Kesper,[31] every particular case differs in terms of determining whether the level of impairment satisfies the statutory test.
[31]Kesper v Victorian WorkCover Authority [2024] VSCA 237
Is Mr Cater’s right middle finger/hand injury a “serious injury” for pain and suffering purposes?
90Moving now to my determination of serious injury.
91Going firstly to pain.
92I accept Mr Cater:
(a) Suffered a traumatic amputation and crush injury to the tip of his right middle finger which necessitated surgery. That is uncontentious.
(b) Continues to suffer pain in his right middle finger which is organically based.
(c) If he is not using his right hand normally he will not have pain.
(d) There are times when, even at rest, the right middle finger will ache.
(e) When he knocks the right middle finger, he suffers immediate and sharp pain.
(f) Will suffer pain when gripping, holding or undertaking normal activities with his right hand.
(g) Suffers aching in the finger when exposed to the cold.
93Having said this, I note Mr Cater does not use painkilling medication and has not done so for many years.
94This I accept has to be balanced against Mr Cater’s complaints of pain. As the VWA said, it is incumbent that I take heed of not only what Mr Cater says about his pain, but what he does about it.[32]
[32]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
95Mr Cater said he has been told by doctors there is nothing further which can be done for his right middle finger aside from amputation. I note none of the medical witnesses in their evidence canvassed this as an option.
96At this stage of my analysis, it is appropriate to acknowledge I accept Mr Cater to be a stoic man. As I have noted earlier in this judgment, I accept Mr Cater is a man who endeavours to do his best given the circumstances of his injuries and various comorbidities. He is, I accept, a man who endeavours to get on with life and push through pain and any restriction flowing from injury/ill health.
97While I accept the lack of treatment tends against a grant of leave, I do not accept it to be determinate.[33] I must balance this lack of treatment against:
(a) What I accept to be the organic nature of the pain of which Mr Cater complains.
(b) The unpredictable nature of when he will suffer increased pain. That is, when his finger will be subject to pain-inducing events, which I accept to be part of the exigencies of normal life.
(c) The adjustments which Mr Cater has made to his life in an endeavour to reduce the risk of pain-inducing trauma and mitigate his levels of pain. For example:
(i)changing jobs;
(ii)not returning to playing golf;
(iii)not taking up the invitation to play seniors cricket;
(iv)wearing a glove;
(v)generally exercising care when using his right hand: for example, when putting his right hand into a pocket.
[33]See for example Ashley JA in Dwyer, particularly at paragraph [24].
98I must also take heed of the fact Mr Cater is right-hand dominant. I accept, in the use of his right hand when undertaking normal daily activities, it is inevitable there will be knocks, bumps, the exertion of force and various other pain-inducing activities.
99I accept Mr Cater will, on a daily basis, and despite his best endeavours, suffer many events which will cause him immediate and sharp pain. This being over and above the general hypersensitivity, vulnerability to the cold, and aching sensation which comes with the use of his right hand, or indeed, at times pain at rest.
100This pain is something Mr Cater has endured for just on five years. It is, I accept, a permanent state of affairs and will be lifelong.
101I accept the pain which Mr Cater has and will continue to endure on a daily basis to be a very significant consequence.
102I also accept Mr Cater’s other symptoms, such as the general hypersensitivity, impaired sensation and vulnerability to the cold, in their own right, to be significant consequences.
103I accept Mr Cater’s levels of pain, hypersensitivity, loss of sensation and intolerance to the cold tend to a grant of leave.
104Moving now to dexterity.
105Mr Cater said he continues to have, by reason of his right middle finger/hand injury, problems undertaking fine motor skills. Mr Cater gave various examples such as:
(a) handling small items like nuts and bolts;
(b) preparing and cutting up food;
(c) the inability to grip and hold small items as he had prior to the incident.
106I also had in evidence the affidavit of Mr Johnston. Mr Johnston said:
“I have seen [Mr Cater] now limited by his hand injury. Fine finger movements and fiddly work which involves the use of his hand and fingers, and especially where you would need proper feeling, appears to be difficult for him. Aside from bigger maintenance jobs which requires a qualified mechanic to attend to, [Mr Cater] now has come to me for help at my workshop for simpler maintenance tasks on his truck which before this injury I have seen him do on his own.
For instance, now I have seen him struggle to get bolts out and replace them due to his finger problems. Even for minor jobs like putting in new bolts that support the back of the radiator because they are broken, [Mr Cater] has come to me to do it for him as he has struggled to do it himself. The task involves undoing and doing up a bolt but [Mr Cater] has said to me that he cannot feel the nut or bolt due to his hand injury and this makes it very difficult for him.”[34]
[34]Paragraphs [8]-[9] at PACB 22
107Such restrictions are consistent with the evidence of Mr Thomas, who said Mr Cater suffers “reduced capacity for the use of the right hand with regards to fine manipulative tasks”.[35]
[35]Question 6(b) at PACB 35
108I accept Mr Cater’s general right hand dexterity and capacity for fine manipulative tasks is adversely affected by his right middle finger/hand injury. I accept this to be a significant consequence. I accept this consequence tends to the grant of leave.
109Turning now to work.
110Before I set out my findings, it is appropriate I revisit the applicable legal principles.
111The impact of impaired vocational capacity and pain at work in a pain and suffering application such as this has been considered by the Court of Appeal on many occasions. For the purposes of my analysis I refer to:
(a) paragraph 15 in Haden;
(b) paragraphs 39 through to 53 in Ellis.
112It is clear, putting aside pure loss of earning capacity consequences, the inability to engage in particular forms of employment may be relevant to the determination of a pain and suffering application.
113In the context of this application, Mr Cater said:
(a) He tried to return to his previous labouring/demolition/concreting-type work, but due to the level of pain he suffered, he was not able to continue.
(b) This was work he enjoyed. He specifically identified three aspects of the job which gave him enjoyment:
(i)the physical nature of the work;
(ii)the variability of the work;
(iii)the comradery.
(c) If he could have continued with the labouring/demolition/concreting-type work, he would have. He said he loved this job.[36]
I accept this to be so.
[36]T12, L7-8 and T17, L15
114While Mr Cater continues to work truck driving, I accept this is not his preferred work. Of note, Mr Cater identified the disadvantage of being “on your own”.[37] This, for a man who I accept to be a sociable person, is not the preferred work environment.
[37]T17, L16
115For completeness, while Mr Cater said he was losing income as a truck driver, I do not factor this into my determination. As set out in Ellis, to do so would lead me into error.
116Having said that, I accept Mr Cater’s right middle finger/hand injury has:
(a) necessitated Mr Cater leaving work which he loved;
(b) resulted in Mr Cater working in a job which is not his preferred option and for which he does not gain the same level of enjoyment.
117I accept these consequences, given Mr Cater’s particular circumstances, to be very significant to him. This tends to a grant of leave.
118This is not an application where Mr Cater relied upon either impaired cognitive function or impaired sleep. I accept there to be no impact on these functions. This tends against a grant of leave.
119Moving now to what I will globally call “activities of daily living”. For the purpose of my analysis, these activities include:
(a) self-care;
(b) self-management;
(c) domestic activities;
(d) recreational and sporting activities;
(e) social activities.
120I accept:
(a) Mr Cater is able to self-care, self-manage and attend to his domestic needs without assistance;
(b) there are some household and domestic activities which Mr Cater will find more difficult by reason of his impaired dexterity or where he will suffer increased pain levels.
121I give limited weight to the impact Mr Cater’s injury has on his capacity for self-care, self-management and domestic activities.
122Moving now to recreational, sporting and social activities.
123Mr Cater identified two activities which he said were significantly impacted by his right middle finger/hand injury. They are:
(a) golf;
(b) seniors cricket.
124Moving firstly to golf.
125There was significant focus on golf in Mr Cater’s affidavit evidence and in the course of his oral evidence. I have already addressed my concerns about Mr Cater’s evidence in respect to golf earlier in this judgment.
126Having said that, I accept:
(a) Mr Cater was not playing golf weekly at the time of the incident;
(b) Mr Cater was, however, playing on a regular basis;
(c) it would be appropriate to categorise Mr Cater, prior to the incident, as a social golfer;
(d) going back many decades prior, when he was aged in his twenties, Mr Cater played golf on a very regular basis;
(e) prior to the incident, while I accept the frequency of his social golf varied, Mr Cater played at least once per month and on some occasions more;
(f) golf was something Mr Cater enjoyed and prior to the incident it was still an important part of his life;
(g) Mr Cater enjoyed the social aspect of golf;
(h) Mr Cater has ceased golf by reason of the pain associated with this activity.
127Golf is an activity which has given Mr Cater pleasure over many decades. I accept this loss to be very significant. I accept this loss, in its own right, tends to a grant of leave.
128The other sporting/recreational activity identified by Mr Cater was seniors cricket. Mr Cater said he had been approached by former team mates to join a seniors team. Mr Cater said he had not played cricket for many years. I give this aspect of Mr Cater’s application limited weight.
129Moving now to Mr Cater’s general enjoyment of life.
130I accept, in general terms, Mr Cater’s overall enjoyment of life has been impacted by his pain, pain-related restrictions and loss of dexterity. I accept, every day, Mr Cater will be impacted many times in some way or another by reason of his right middle finger/hand injury. This will be lifelong.
131As I have already noted in this judgment, I must also take into account that which Mr Cater has retained. For example, Mr Cater:
(a) has been able to resume employment and works full time as a truck driver;
(b) continues to live independently and perform most activities of daily living;
(c) does not complain of sleep impairment or any impact on cognitive function;
(d) does not require ongoing medical treatment, nor does he use painkilling medication.
This list is not exhaustive.
132It is necessary for me to synthesize Mr Cater’s retained capacity with those consequences which I accept flow from his right middle finger/hand injury.
133In assessing Mr Cater’s application, I am also conscious of the need to assess his right middle finger/hand injury in comparison to other cases.
134There have, over the years, been many finger/hand injury cases before this Court. I have undertaken a review. They are too numerous to reference them all. I will refer to a sample:
(a) TTB SMS Pty Ltd v Reading[38]
The applicant suffered injury to his right little and ring fingers which were surgically repaired. The applicant returned to work. The applicant took over-the-counter medication once or twice per week. The application was unsuccessful;
(b) Porto v Design Line Cabinets Pty Ltd (Deregistered) & VWA[39]
The applicant suffered partial amputation to the ends of his middle and ring fingers on his right hand. The application was successful.
(c) MacDougall v Victorian WorkCover Authority[40]
The applicant suffered a crush injury to the left index finger. He underwent surgery to repair the finger. He returned to work. The application was unsuccessful.
(d) Sorrentino v Victorian WorkCover Authority[41]
The applicant suffered a laceration to her left middle finger, resulting in damage to the sensory nerve. She was twenty-four years of age at the time of the injury. The application was successful.
[38][2020] VSCA 203
[39][2012] VCC 1645
[40][2021] VCC 1292
[41][2022] VCC 581
135I have had cause to determine numerous applications involving finger/hand injuries. I refer to:
(a) Razai v Victorian WorkCover Authority[42]
The applicant suffered an amputation of his right index finger when it was struck by a bandsaw. Surgery was undertaken to re-attach the finger. He was a young man. The application was successful.
(b) Robinson v Victorian WorkCover Authority[43]
The applicant’s left thumb was amputated through the middle and bottom sections after being struck by the blade of a saw. Surgery was undertaken to re-attach the amputated section. While the amputated section was viably re-attached, the applicant continued to suffer ongoing pain, impaired function and disfigurement. The application was successful.
(c) Hussain v Victorian WorkCover Authority[44]
The applicant sustained injury to his right index finger. It was crushed by a piece of steel. The applicant said he had ongoing pain, impaired sensation and impaired function. The application was unsuccessful.
(d) Brown v Bayside Estimating Services Pty Ltd[45]
The applicant sustained an injury to his right index finger when it was struck by the blade of a power saw. The applicant underwent reconstructive surgery and the tip of the finger was maintained. The applicant said he suffered ongoing pain and impaired function of his right index finger/hand. The application was successful.
(e) Na v Victorian WorkCover Authority[46]
The applicant sustained an injury to his left thumb when it was caught in a valve. The top of the left thumb was amputated. The applicant was able to return to pre-injury employment. The applicant said he had ongoing pain and impaired function. The application was unsuccessful.
[42][2022] VCC 1732
[43][2023] VCC 1948
[44][2023] VCC 2283
[45][2024] VCC 519
[46][2024] VCC 476
136While I am assisted by each of the matters referred to, it is of course trite to say that each application must be determined on its own facts and circumstances.
137In summary, I accept Mr Cater’s right middle finger/hand injury, in its own right, impacts him every day in many ways. I accept he continues to suffer ongoing pain, hypersensitivity, intolerance to the cold, impaired dexterity and vocational restriction. I also accept there is a general impact on his activities of daily living. Further, I accept his incapacity to play golf as being a tangible and significant loss to him.
138Having considered all of the evidence and the issues which have arisen in this case, I accept the impact on Mr Cater, by reason of his right middle finger/hand injury, to be more than very considerable.
139Leave will be granted pursuant to ss(a).
Consequential Orders
140I will hear the parties in respect to the Consequential Orders arising out of this judgment.
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