Collinge v Victorian WorkCover Authority
[2025] VCC 304
•21 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-02085
| NEIL COLLINGE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2025 | |
DATE OF JUDGMENT: | 21 March 2025 | |
CASE MAY BE CITED AS: | Collinge v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 304 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – partial amputation to tip of non-dominant left index finger, pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325 and s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439; Johns v Oaktech Pty Ltd [2020] VSCA 10
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Storey | Maurice Blackburn Lawyers |
| For the Defendant | Ms M Cameron | Russell Kennedy Lawyers |
HER HONOUR:
Introduction
1Mr Collinge applies for leave to commence proceedings against his employer for pain and suffering damages in respect of a partial amputation to his left (non-dominant) index finger.
2The Court must not give leave unless Mr Collinge discharges his onus of satisfying the Court, on the balance of probabilities, that the injury is a “serious injury”. Namely, that it is a permanent serious impairment or loss of the body function of the left hand. Permanence is satisfied by a finding that the impairment is “likely to last for the foreseeable future”.[1]
[1] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
3The term “serious” requires the consequence to be able to be “fairly described as being more than significant or marked, and as being at least very considerable” when judged in comparison to the range of possible impairments.[2]
[2] Pursuant to s325(2)(c) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”)
4The application was defended on the basis that Mr Collinge had not made out the requirements of the statutory test.
Background and medical history
5Mr Collinge is sixty years old. He is married with three adult daughters. He completed Year 11 in the United Kingdom, then qualified as a fitter and turner.
6Mr Collinge migrated to Australia in 1989. He worked as a field service technician for one employer until 2015, when he commenced employment with Parmalat Australia Pty Ltd (“the employer”) as a maintenance fitter.
7On 21 October 2020, Mr Collinge was engaged in a task of finding the fault in a machine when it malfunctioned, trapping and partially amputating the tip of his left index finger. A number of safety mechanisms failed before he was able to free his finger from the machine.
8Mr Collinge was taken to hospital where a near complete tip amputation and distal phalanx tuft fracture was diagnosed and surgically treated with debridement, nailbed repair and ORIF distal phalanx.[3] A splint was applied to the index finger and Mr Collinge subsequently attended hand therapy on referral from his surgeon.
[3]Plaintiff’s Court Book (“PCB”) 28
9Following the surgery, Mr Collinge was off work until December 2020, when he returned performing modified duties.
10In March 2021, Mr Collinge resumed his full pre-injury duties as a maintenance fitter, which he continued until June 2022, when he resigned to take up employment elsewhere.
11In July 2022, Mr Collinge commenced employment as a maintenance fitter with a different employer. He continued in this position until mid-2024, when he resigned, as he was not enjoying the work. He has not returned to any form of employment and has now taken an early retirement.
Mr Collinge’s affidavits and evidence in court
12Mr Collinge made two affidavits in support of his application, the first on 9 November 2023 and the second on 7 February 2025. In those affidavits, he deposed to the following:
(a) he has lost about a centimetre of his left index finger, has an obvious scar on the tip of the finger and has lost padding over the end of the finger bone. His nail now beaks over the tip of the left index finger and he is unable to cut it. He uses a nail file to ensure it does not catch on things. He was self-conscious about it when people see it and ask him about the finger;
(b) he has a dull aching pain, worse in the colder weather, when he puts a bandage over it to provide padding and warmth;
(c) there is a tightness in the finger when performing tasks which require use of the left hand, because of tenderness, sensitivity, and discomfort. At times, the tip of finger is numb and he has difficulty picking up and holding small objects with his left hand. Holding a fork with the left hand feels and looks awkward and he now uses the middle finger to support the back of the fork;
(d) he is no longer inclined to participate in ballroom-dancing classes and competitions because he is worried about the dance partners being put off by the appearance and feel of the left index finger;
(e) before the injury, he enjoyed playing an acoustic guitar and an electric guitar, both of which he brought with him from the United Kingdom. He played traditional chords which required the use of individual fingers. He is now unable to use the abnormally-sensitive tip of the left index finger to play the guitar. He tried after completing hand therapy, but found it too uncomfortable;
(f) he had a 1974 Fender Stratocaster guitar which he brought from England and liked relaxing with it at home. He now almost never picks it up because it is painful and difficult to press the left index finger onto the wire strings. He feels sad that he lost this simple pleasure in his life;
(g) when competing in motorcycle trials, he finds it difficult to manoeuvre around obstacles, because using the left index finger to operate the clutch is compromised. He has to use both the left index and middle fingers on the clutch, which feels awkward;
(h) he cannot enjoy motorbike riding like he used to. He is now restoring an old bike in the hope that less clutch use will be involved. He finds pain, sensitivity and loss of dexterity in the finger is affecting the restoration process. Riding in cold weather is also very uncomfortable;
(i) he is restricted in his hobbies of gardening, landscaping, house maintenance and repairs. He still does as much as he can, but is restricted by loss of sensitivity in the left index finger, loss of dexterity in the left hand and cold intolerance;
(j) if he bumps the finger, he feels sharp and intense pain like a nervous shock. It is worse in winter or cold conditions. He wears gloves quite often, particularly if performing outdoor activities;
(k) he misses going ballroom dancing with his wife. His left finger on the lead hand was sometimes squashed by other dancers, which could be painful, and he also felt embarrassed by the way it looked. He briefly tried a different type of dancing after his injury, but it was not the same as the regular ballroom dancing with his wife, and so he stopped doing that;
(l) walking four dogs with his wife in cold weather is not enjoyable any more. He finds it difficult to grip the lead with his left hand.
13In cross-examination, Mr Collinge said the following:
(a) since the injury, he took some martial-arts lessons, some of which involved grabbing the other person and using hands to manoeuvre them to get away from them, and the left finger injury did not cause any issues with that, no more than “normal stuff;”[4]
(b) since recovery from the injury, he has been able to do weight training at home, use a reformer Pilates machine and occasionally use dumbbells. He was not prevented from these activities by the finger injury;[5]
(c) the reason he stepped away from ballroom dancing was because of the appearance of the left index finger and also how it might feel when gripped by a dance partner. He also found the finger to be painful if performing spins and twists, when holding the partner’s hand. He agreed he could continue ballroom dancing only with his wife, with her being mindful of the left finger injury, but said most of the dance clubs or studios required dancing with other partners. He said he did not go anymore because he did not like the thought of people holding that hand. He agreed there were ways to get around that, like sitting out a dance, or asking to dance only with his wife or someone who knew him well, but he had not done so;[6]
(d) after Covid lockdowns, he attempted to return to ballroom dancing, but just found it was not right for him anymore, it was not enjoyable. The pain in the finger was not the only reason he stopped ballroom dancing, but it was not “a small reason;”[7]
(e) the restoration of the motorbike requires using fine motor skills to put the bike together, for example it requires using screws, tools, nuts, and bolts;[8]
(f) he is able to use various garden machines, such as a leaf blower or whipper snipper, and is able to do lawn mowing on his large property. The finger does not cause any difficulty with those tasks; [9]
(g) he can still play the guitar, but in a different way to before the injury. He now has to play bar chords, placing his index finger across the strings. [10]
[4]Transcript (“T”) 10 ꟷ T11
[5]T11 ꟷ T12
[6]T12 ꟷ T14
[7]T15
[8]T21
[9]T22
[10]T24
14In re-examination, Mr Collinge said:
(a) he and his wife received a number of trophies ballroom dancing, but had not participated in any competitions in 2019 (the year prior to the injury);[11]
(b) when he does gym work at home, he is conscious of the finger and tries to grip things in a sensible manner; [12]
(c) in ballroom dancing, there may be spinning and twisting of a partner, which is commonly done with the left hand and the grip or movement would be uncomfortable due to the finger injury;[13]
(d) he and his wife have not done any ballroom dancing or competitions since his injury and he really misses that. He feels bad that his wife is missing out;[14]
(e) since the accident, his ability to use his left hand has been impaired due to the loss of dexterity and sensation in the finger;
(f) it takes him longer to perform tinkering on his car or motorbike.[15]
[11]T26
[12]T29 ꟷ T30
[13]T32
[14]T34
[15]T35 ꟷ T36
Medical evidence
15In November 2020, following the surgery to repair the severed tip, treating orthopaedic surgeon, Mr Jason Harvey, reported that the tip had dry gangrene and was likely to fall off.[16]
[16]PCB 30
16In July 2024, Dr Clayton Thomas provided a medico-legal report.
17In that report, Dr Thomas reported that Mr Collinge had a crush injury to the left index finger, surgically repaired, with resultant loss of sensation, cosmetic deformity, and stiffness. There was also additional sensory loss involving the C6 dermatome which was likely related to a previous cervical spine problem treated surgically by Professor Paul D’Urso.[17]
[17]PCB 32
18Dr Thomas noted that the primary restrictions arising from the injury were:
(a) loss of fine motor tasks involving the left index finger;
(b) loss of ability to feel the left index finger;
(c) loss of ability to use the finger if the line of sight to it was affected.[18]
[18]Ibid
19On 28 October 2024, Dr Alan Gallogly, psychiatrist, provided a medico-legal assessment of Mr Collinge. In that report, Dr Callogly noted Mr Collinge had suffered from a psychological reaction after the injury and lost the motivation to play the guitar and go dancing. He had some anxiety and flashbacks to the accident. At the time of assessment, Mr Collinge had retired, which he attributed to the mental strain, the pain in the finger, and the impact of the cold weather on it. Over time however, and with therapy, Mr Collinge’s condition improved and almost completely resolved.[19]
[19]PCB 37-40
20On 26 November 2024, Mr Damon Thomas, plastic and reconstructive surgeon, provided a medico-legal report to Mr Collinge’s solicitors. In that report, Mr Thomas reported that Mr Collinge had been able to maintain most of his hobbies which included swimming and gym work, unrestricted, but he had been a keen guitarist and now struggled to play certain strings.[20]
[20]PCB 42
21Mr Thomas reported that:
(a) the index fingertip was partially amputated, resulting in about 10 per cent loss of grip strength;
(b) the amputation resulted in absent two-point discrimination at 15 millimetres on the radial and ulnar sides of the finger;
(c) a single scar is present over the terminal segment, measuring 20 millimetres in length and 5 millimetres in width, with a hypopigmented and hypersensitive scar, with some adhesions on the underlying stump;
(d) there was functional loss with sensory change, and hypersensitivity and cosmetic sequalae;
(e) there was unlikely to be any change, improvement, or deterioration over time.[21]
[21]PCB 42-43
22In December 2022, the Medical Panel[22] conducted an impairment assessment and reported as follows:
(a) Mr Collinge experienced a constant tightness in the tip of the finger, and the nail beaked at the end, requiring frequent filing to prevent it from catching. He slept normally and was able to drive a car, but found it difficult to use the finger for picking up small objects. His guitar playing had been affected because he was unable to use the abnormally-sensitive tip of the left index finger on the neck of the guitar and he had to play bar chords instead. He was not using any medications;
(b) Mr Collinge was suffering from a shortening, abnormal motion, scarring and partial transverse sensory loss of the left index finger. No treatment was required, the condition has stabilised and attracted an overall whole person impairment rating of 5 per cent;
(c) the loss of use was not severe enough to be regarded as a total loss, or a total loss of use of the left hand, forefinger of the left hand, or any joint of the forefinger.[23]
[22]Dr Peter Jasek, general practitioner and Dr Russell Corlett, plastic surgeon, at PCB 47
[23]PCB 48-51
23On 9 February 2022, Mr Darrell Nam, plastic, reconstructive and hand surgeon, reported to the Victorian WorkCover Authority’s (“VWA”) agent on his assessment of Mr Collinge as follows:
(a) he complained of a dull aching pain in the tip of the finger with significant cold intolerance. He had lost discrete sensation to touch in the fingertip, which resulted in loss of dexterity and some clumsiness using the left index finger;
(b) the injury impacts on his guitar playing and restoration of old motorcycles, as it affects activities requiring fine motor skills;
(c) there was about a 1-centimetre loss in the tip of the finger with beaking of the nail and loss of the distal tuft and nail bed. There was also some altered sensation consistent with a partial loss of feeling;
(d) the movements of the finger joint were relatively normal, but there was some limitation of flexion of the distal interphalangeal joint;
(e) there was no significant skin scarring. The beaking of the nail did not constitute a symptom or problem and was accounted for by the amputation. The evaluation was of a 5 per cent whole person impairment.[24]
[24]PCB 55-57
24A report dated 22 March 2023 from Professor D’Urso, neurosurgeon, was tendered. The report related to a left-sided C6-7 foraminotomy performed in March 2015.
25Professor D’Urso reported there was mild weakness in left arm function and symptoms from the left C7 nerve root. Professor D’Urso recommended Mr Collinge stop martial-arts training for a period to allow the symptoms time to settle.[25]
[25]Defendant’s Amended Court book (“DCB”) 7-8
Issues and submissions
The VWA’s submissions
26The VWA submitted:
(a) Mr Collinge has not established that, as at the date of hearing, the consequences of his finger injury are “more than significant or marked” or “at least very considerable” for the following reasons:
(i)the injury affects the non-dominant hand and Mr Collinge said he can wear a glove or small bandage on the finger in winter time, which remedies his pain concern. He has retained almost all of his previous abilities;[26]
(ii)he only had a short time off work and has been able to return to full pre-injury duties, which he performed for two years after the injury, although he has elected to retire early for other reasons;[27]
(iii)the cause of the numbness and lack of dexterity in his fingers is not clear cut, as Dr Thomas considered he had sensory loss at the C6 dermatome, which is not related to the finger injury. Professor D’Urso commented on this and said Mr Collinge had prolapsed discs at C6-7 and was symptomatic from the C7 nerve root;[28]
(iv)there is no evidence that Mr Collinge needs to take any pain medication;[29]
(v)there is no evidence the finger injury causes any sleep disturbance or impacts on his cognitive functioning;[30]
(vi)his capacity for self-care is not impacted;[31]
(vii)the most significant reason he did not continue ballroom dancing was the look of the finger, rather than its function. While there may be some discomfort when doing some dances, this was minor. It did not prevent him from participating;[32]
(viii)his hobbies have not been impacted in any significant way, he has found a way to continue motorbike riding by restoring an old bike;[33]
(ix)he is not prevented from playing the guitar either, he has to do it differently;[34]
[26]T46 ꟷ T47
[27]T40
[28]T40 ꟷ T41
[29]T42
[30]Ibid
[31]T43
[32]T43 ꟷ T44
[33]T45 ꟷ T46
[34]T46
Mr Collinge’s submissions
27It was submitted on behalf of Mr Collinge that:
(a) there were no credit issues raised in the case, Mr Collinge gave his evidence in a candid and straightforward way, there was no embellishment or exaggeration, but he should not be penalised for being stoic;[35]
(b) the VWA’s submission that the loss of sensitivity and dexterity is somehow attributable to a neck injury is “surreal” in the circumstances of a partially-amputated finger;[36]
(c) his case might be a “borderline case”, but it rises above the threshold for the following reasons:
(i)while he does not say he could not continue in his work as a fitter and turner, it did become more difficult for him after the injury; he had trouble reaching into blind spots and dropped nuts and bolts, however he suffered a loss of enjoyment in his work and was forced to retire early from a job he otherwise loved; [37]
(ii)although he does not claim to be in agony every day, he has a dull ache at the tip of his finger which can become acute if he bangs or knocks it;[38]
(iii)he had a rare and expensive guitar which he brought all the way from England and he now cannot play it (like he used to);[39]
(iv)the loss of the ballroom dancing is a very considerable consequence. He had been training twice a week and the loss of it was visibly distressing for him. His relationship with his wife has also suffered. His evidence that he had pain and discomfort from the finger should be accepted, his left hand is the lead hand in ballroom dancing and he suffered doing the spins and twists;[40]
(v)the three main activities, in combination, are what suffices to establish that Mr Collinge has suffered a serious injury.[41]
[35]T47 ꟷ T49
[36]T53
[37]T50 ꟷ T52
[38]T55
[39]T56
[40]T57
[41]T58
Discussion
Credit and reliability
28In an application such as this, the credit of the plaintiff is often of great importance, both directly and indirectly.
29The opinions of medical witnesses and other experts depend upon what they have been told by a plaintiff and upon his behaviour and performance on examination and on testing.[42]
[42]Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439 at 448 (per Brooking JA); Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
30Credit is also important because the Court must be satisfied of the alleged consequences and their impact on Mr Collinge’s residual capacity.[43]
[43]Ibid
31The VWA did not submit Mr Collinge lacked credibility or reliability. Rather, the defendant submitted, even accepting all of Mr Collinge’s claimed consequences, he has not made out his case.
32I consider Mr Collinge was a forthright witness who answered questions directly, without obvious embellishment or exaggeration. There was no apparent inconsistency between the evidence he gave and his affidavits, or the recorded histories in the medical reports. Indeed, when the various histories were put to him, he readily accepted them as accurate.
33I accept Mr Collinge’s evidence about the consequences to him.
34He was injured at work in traumatic circumstances with the tip of his left index finger being crushed by a machine. Despite his efforts, he was initially unable to release his finger from the machine for some time, which must have added to his distress. He underwent surgery to repair the tip and participated in hand therapy. Although there was no report from the hand therapist, I accept his evidence that he attended.
35Mr Collinge is now left with a partially-amputated tip of his left (non-dominant) index finger. The evidence supports a conclusion that the effects will be permanent. Those effects include:
(a) no pain or discomfort at rest, but if the finger is bumped or grabbed there might be pain. There may also be some pain or discomfort in cold conditions;
(b) loss of some sensation and dexterity of the tip of the finger on the non-dominant hand;
(c) being unable to play the guitar as he used to because of loss of sensation in the index finger, which he would use to press on the strings, and having to change the way he plays certain chords.
36Dr Thomas considered there was an additional sensory loss involving the C6 dermatome, likely related to his cervical spine. To an extent, this was supported by Professor D’Urso, who operated on Mr Collinge’s neck and reported mild weakness in left arm function and symptoms from the C7 nerve root.
37I do not accept the VWA’s submission that any, or any significant, symptoms associated with the finger injury are attributable to the neck. I prefer the opinions of the plastic and reconstructive surgeons, which relate to an injury within their area of specialty.
38According to Mr Thomas, the result has been about 10 per cent loss of grip strength and an inability to distinguish between two separate points of touch on the skin. The affected area is approximately 20 millimetres by 5 millimetres. There was also considered to be functional loss, sensory change and hypersensitivity in the tip of the finger. I accept this evidence.
39As a result of the injury, Mr Collinge experiences a tightness in the finger, pain, and discomfort in cold weather, has lost discrete sensation to touch and lost or experienced reduction in dexterity, resulting in clumsiness.
40There is also a beaking of his nail, which requires frequent filing to prevent it catching and he has altered sensation and partial loss of feeling.
Loss of work capacity
41After a period of time off work for recovery, Mr Collinge was eventually able to continue in his pre-injury duties for some years. Initially, this was with the employer. Sometime later, he commenced the same type of work with a different employer.
42I accept Mr Collinge retired earlier than he otherwise would have as he was no longer enjoying the work (due to the left finger injury) and this is of some consequence to him. However, he was not forced to retire on account of the injury. I consider he could have, if he elected to, remained at work and he did do so for some years after the injury.
Activities of daily living
43Mr Collinge is able to attend to all self-care activities independently. I accept he feels discomfort in the finger when washing his hair and that he has had to change the way he holds his fork. He now uses his middle finger to support the back of his fork and it looks awkward.
44There is no evidence his sleep has been impaired.
45Understandably, he suffered a psychological reaction to the accident and this affected his mood and motivation. However, with treatment, he has largely recovered psychologically and his mood is no longer affected by the injury.
46Mr Collinge is able to perform domestic activities, such as housework and gardening, but more slowly than he did prior to the injury.
Treatment
47Mr Collinge was initially treated with surgery, analgesics and hand therapy. He no longer requires any treatment. He has been advised there is nothing more that can be done to improve his pain, sensitivity level or function.
Hobbies
48When gardening, Mr Collinge now has to wear gloves. He never wore gloves to garden prior to the injury.
49Mr Collinge has retained his ability to work on cars and motorcycles and told the Court he had successfully restored a car for his daughter’s wedding and was currently in the process of restoring a 1970s motorbike which had arrived in a number of crates. I accept he may at times feel some discomfort when performing the restoration work, however the finger injury has not resulted in an inability to perform this hobby.
50The main hobbies said to be impacted or impeded by the left finger injury were guitar playing, ballroom dancing and trail-bike riding.
51In his affidavit, Mr Collinge deposed he used to love relaxing with his guitar at home, but after the injury, he will “almost never pick it up”, as it is painful and difficult to press his index finger on the strings. In oral evidence, he agreed he can still play, however he has had to change the way he plays. Now he plays bar chords – sliding his finger across all the strings.
52The evidence relating to the ballroom dancing was that Mr Collinge and his wife had engaged in twice-weekly training and had participated in competitions. A photograph of their trophies was tendered in evidence.
53The reason Mr Collinge and his wife were no longer ballroom dancing and participating in competitions was not entirely clear.
54According to the history noted by Dr Gallogly, Mr Collinge suffered from a psychological reaction to the injury and lost the motivation to go dancing and to play his guitar.
55According to his affidavit, he was no longer inclined to participate in classes because he was worried about dance partners being put off by the appearance and feel of the finger, and sometimes the finger was squashed by other dancers, which could be painful.
56According to the affidavit of Christine Collinge, she had seen him wince when another dancer gripped his hand too tightly and after a while he found it less enjoyable, so he stopped dancing.
57In oral evidence, Mr Collinge said the reasons were the appearance of the finger and how it might feel if gripped by a dancer, and that there was pain associated with another dancer holding onto his hand while performing spins and twists.
58I am unable to find that the restricted function in the left index finger is the reason Mr Collinge no longer attends ballroom dancing. He accepted, in cross-examination, that he could continue dancing, either being mindful of the finger injury or siting out a dance, or dancing only with someone he knew.
59I accept that to Mr Collinge, the injury is foremost in his mind. However, looking at the photograph of the index finger, the deformity is barely noticeable to the onlooker. Being mindful of the finger might well mean that no one other than Mr Collinge would be aware of it and he could make accommodations to facilitate his participation in ballroom dancing.
60It was not at all clear to me how any sensation or discomfort associated with a partner touching the finger inhibited his ability to engage in ballroom dancing of any kind. Given the concessions that there were ways he could continue the activity while accommodating the finger, I consider the loss of ballroom dancing is not attributable to the loss of function and restrictions associated with the left index finger injury.
61Mr Collinge has been able to continue trail-bike riding, with some modifications due to the lack of dexterity in the finger and the associated impact on his use of the clutch. I accept that his enjoyment of the activity is not as before, however he is not prevented from participating. Indeed he is now rebuilding a 1970s bike with the aim of enabling himself to participate in the sport as before.
62In my view, the ability to use his existing skills and both hands to rebuild the motor bike bespeaks of retention of significant levels of function in the finger.
Conclusion
63Although the restrictions and impairments resultant from the left index finger injury are not trivial, they cannot be described as “at least very considerable”. Considering the range of possible impairments, including spinal injuries, compete amputations and brain injuries, this impairment has not resulted in the type of ongoing long-term pain, disturbed sleep, inability to work and ongoing restriction of function which meets the statutory criteria.
64I will hear the parties with respect to costs.
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