Collins, Ryan v Danum Engineering Pty Ltd
[2009] VCC 1612
•11 December 2009
Of a button and the
| IN THE COUNTY COURT OF VICTORIA | (Un) Revised |
(Not) Restricted
AT GEELONG
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-09-00013
| RYAN COLLINS | Plaintiff |
| v | |
| DANUM ENGINEERING PTY LTD | Defendant |
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| JUDGE: | JENKINS |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 10 December 2009 |
| DATE OF JUDGMENT: | 11 December 2009 |
| CASE MAY BE CITED AS: | Collins, Ryan v Danum Engineering Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1612 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985, s.134AB; Serious injury: permanent serious disfigurement; Claim for Pain & Suffering only; Application granted; Ingram v Ingram[1]; Baker v TAC[2]; Dwyer v Calco Timbers Pty Ltd (No. 2)[3]
[1] (1996) 2 VR 435
[2] 1997 1 VR 662
[3] [2008] VSCA 260
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh QC with | Slater & Gordon |
| Mr A. McNab | ||
| For the Defendant | Mr Tebbutt with | Wisewoulds |
| Ms Ms A. Magee |
TABLE OF CONTENTS
Nature of Application ..........................................................................................................2
Significant Issues for Determination .................................................................................2
Relevant Statutory Provisions............................................................................................3
Further Considerations to the Application of Paragraph (b ) of the Serious Injury
Definition ..............................................................................................................................4
Evidence...............................................................................................................................7
Plaintiff’s Affidavit and Oral Evidence ...............................................................................7
Personal Background, Education and Employment .........................................................7
Workplace Incident...........................................................................................................8
Investigations and Treatment ...........................................................................................8
Consequences of the Workplace Incident ........................................................................8
Medical Reports.................................................................................................................10
Analysis of the Evidence and Findings ...........................................................................11
Conclusion .........................................................................................................................15
Orders.................................................................................................................................16
HER HONOUR:
Nature of Application
1 This is an application for leave to bring a proceeding for the recovery of damages pursuant to section 134AB of the Accident Compensation Act 1985 (“the Act”) made by Originating Motion pursuant to section 134AB(4) on 6 January 2009 by the Plaintiff, in respect of injuries which he alleges occurred in the course of his employment with the Defendant on 10 December 2004.
2 The Plaintiff seeks a declaration that he suffered a serious injury as defined within section 134AB(37)(b), by reason of facial disfigurement. Leave is sought in relation to damages for pain and suffering only.
Significant Issues for Determination
3 The Defendant concedes that the Plaintiff suffered an injury in compensable circumstances. However, they deny that the Plaintiff has suffered a serious injury as defined. The issues in dispute in this application is confined to whether the consequences to the Plaintiff of the permanent disfigurement, satisfy the statutory definition with respect to pain and suffering.
4 I will now deal with this application as follows:
a) I will briefly deal with relevant statutory provisions;
b)
I will briefly summarize relevant evidence from the Plaintiff’s affidavit and oral evidence which attest to the occurrence, nature and extent of his injury and the effect upon him;
c)
I will briefly refer to relevant medical opinions which describe the disfigurement and the consequences for the Plaintiff; and
d)
I will then give my factual findings and reasons as to the nature of the injury suffered and the consequences for the Plaintiff.
5 The Plaintiff bears the overall burden of proof.
Relevant Statutory Provisions
6 This application falls to be determined in accordance with Section 134AB of the Act. Sub-section 134AB(2) prescribes the conditions which must be satisfied before a compensable injury may give rise to an entitlement to recover damages:
(2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arose on or after 20 October 1999.”4 7 For the purpose of the current application “serious injury” means:
(b) permanent serious disfigurement; [5]
[5] Section 134AB (37)
8 Section 134AB (38)(b), so far as it is relevant to the present case, sets out what must be shown in order to establish that the disfigurement is “serious”. It does this by reference only to the consequences to a worker.
(38) For the purposes of the assessment of “serious injury” in accordance
with the sub-sections (16) and (19)-(b) the terms ‘serious’ and ‘severe’ are to be satisfied by reference to the consequences to the worker of any… disfigurement… with respect to- (i) pain and suffering; …
when judged by comparison with other cases in the range of
possible… disfigurements ….
9 Section 134AB (38)(c) provides, so far as it is relevant to this case, as follows:
(c) …a disfigurement shall not be held to be serious for the purposes of sub-section (16) unless the pain and suffering consequence … is, when judged by comparison with other cases in the range of possible …disfigurements,… fairly described as being more than significant or marked, and as being at least very considerable; 10 The Court of Appeal has emphasized the necessity for a Court to analyse the evidence in terms of the statutory requirements.[6] The appropriate approach to determine serious injury has been reduced to the following questions: first, what is the injury or injuries and what is the disfigurement said to be produced in consequence; secondly, is the disfigurement permanent, i.e., likely to persist for the foreseeable future; and thirdly, are the consequences for the Plaintiff such as to satisfy the more than significant or marked and as being at least very considerable” test.[7]
[6] @ paragraph 71
[7] Barwon Spinners @ paragraph 33
11 The assessment of “serious injury” shall be made at the time that the application is heard by the court.[8]
[8] paragraph 134AB(38)(j)
12 As indicated already, the Defendant does not contest that the Plaintiff has suffered a compensable injury for the purpose of section 134AB(1) and the Defendant does not contest that the disfigurement claimed under paragraph (b) is permanent. Accordingly it is only necessary to focus upon whether the disfigurement satisfies the statutory test for “serious”.
Further Considerations to the Application of Paragraph (b ) of the
Serious Injury Definition13 In Ingram v Ingram[9] the appellant claimed permanent serious disfigurement from abdominal scarring as a result of surgery following a car accident. The appellant gave evidence that she had become very conscious of the scar, had lost self-esteem and had become insecure. In dismissing the appeal the Court of Appeal endorsed the approach adopted by the Trial Judge in applying the test in Humphries v Poljak:
When judged by comparison with other cases of possible disfigurement, I do not think the appellant’s scar can fairly be described as “very considerable”. [Per Callaway JA @ 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. [Per Callaway JA @ 438].
[9] (1996) 2 VR 435
14 I draw from the majority view that when considering the consequences of the disfigurement it may be appropriate to make an objective assessment of the particular circumstances of the Plaintiff.
15 In Baker v TAC[10] the applicant suffered scarring to her torso and legs as a result of a motor accident. In allowing the appeal the Court of Appeal identified certain criteria which would be relevant to a consideration of serious injury under paragraph (b). In particular, the Court held that, even assuming (as the respondents contended) that the court was confined to the physical characteristics of the scars, the age and possibly the sex of the applicant; the disfigurement was a “serious injury” … having regard to the number of scars, their location, their size and their degree of obviousness.[11] These are all relevant criteria in the subject application.
[10] 1997 1 VR 662
[11] [per Brooking JA @ 665]
16 Defendant’s Counsel placed particular reliance upon the case of Dwyer v Calco Timbers Pty Ltd (No. 2)[12] as effectively setting a high threshold for a paragraph (b) injury. In my view a close reading of this case provides little if any guidance to disfigurement cases. I accept Plaintiff’s Counsel’s assessment that Dwyer’s case was essentially decided on the basis of a paragraph (a) impairment.
[12] [2008] VSCA 260
17 In Dwyer No.2 the Court of Appeal was itself deciding an application on remitter from the High Court. The plaintiff in that case was 44 years of age when he suffered a crushing compound fracture to his right arm. Ashley J delivered the leading judgement and adopted the description given by the trial judge of the disfigurement consequences of the plaintiff's injury. In part these were described as:[13]
… disfigurement through scarring and visible deformity of the right upper
limb caused by the plaintiff's inability to fully straighten the elbow and the loss of condition and wasting of the upper and lower parts of the limb… there is permanent disfigurement of the plaintiff's right upper limb by reason of:
• Two long and deep scars located on the plaintiff's right forearm. They are not raised and they appear well healed, although there is "rutting" on the surface. Their colour is consistent with the rest of the plaintiff's lightly tanned forearm. The scars are obvious and unsightly because of their length, their width and their location on a part of the body regularly exposed.
[13] @ paragraph 15
• The deformity of the appearance of the right upper limb caused by a combination of the fixed elbow position and the comparative wasting, flabbiness and loss of tone in the limb.
18 The Court of Appeal was satisfied that the impact of the physical disability constituted a serious injury for the purpose of paragraph (a), and indeed the reasons for decision were substantially directed toward an impairment injury under paragraph (a). The Court also had the benefit of a demonstration by the plaintiff of the use of his arm and observed the residual scarring and other disfigurement. His Honour then declined to make any specific finding in relation to the claim under paragraph (b) stating as follows:[14]
What I have thus far said makes it unnecessary to decide whether the appellant also made good his contention that he suffered ‘serious injury’ as defined by s 134AB(37)(b) of the Act. I refrain from expressing a final conclusion about the matter, noting only that I have some doubt whether his disfigurement would satisfy the necessary threshold. The scarring, though extensive, is now very well healed and not very noticeable. The flexion deformity at the elbow, though constituting a disfigurement, in my view has a more significant impact in the context of impairment.
[14] @ paragraph 29
19 The only additional comment proffered by Nettle JA relating to the paragraph (b) application was… I see no reason to doubt that the appellant’s loss of
upward and downward movement of his palm constituted disfigurement as
much as it did impairment. [15]
[15] @ paragraph 2
20 In my view the description of the appearance of the relevant disfigurement and its location, in each of the cases of Ingram and Dwyer No 2 stand in marked contrast to the circumstances of the Plaintiff in this case.
Evidence
21 In support of the Application, the Plaintiff relied upon:
(a) Exhibits identified and contained in the Plaintiff’s Court Book comprising the Plaintiff’s affidavit, photographs and medical reports of Dr Martin Schaap General Practitioner; Mr Anthony McDonald Plastic and Reconstruction Surgeon; and Mr Murray Stapleton Plastic and Hand Surgeon; and Psychological report of David Sullivan; and (b) Oral evidence given to the Court by the Plaintiff. 22 Opposing the Application, the Defendant relied upon the cross examination of the Plaintiff and the documents otherwise tendered.
Plaintiff’s Affidavit and Oral Evidence
Personal Background, Education and Employment
23 The Plaintiff was born on 31 July 1980 and is now 29 years old and was 24 years old at the time of the workplace injury. The Plaintiff relied upon his affidavit[16] and oral evidence.
[16] dated 28 July 2008
24 The Plaintiff grew up in Geelong and completed the equivalent of Year 10 at the Catholic Regional College. Following school he worked as an apprentice mechanic for Werribee Mazda and Surf Coast Autos and then as a mechanic for a further year before working for the Defendant from 2002 as a trade assistant. After travelling overseas for about a year he again worked for the Defendant from about 29 March 2004 as a mechanical fitter.
Workplace Incident
25 On 10 December 2004 the Plaintiff was working at the Shell Refinery in Geelong. He states that he was required to use an angle grinder to cut cement on structural beams. After using the grinder for this purpose for a period it caught in the concrete and kicked back without warning. As a result his face came into contact with the grinder blade causing two deep lacerations to the right side of his face. The lower laceration which extends to below his lip is a full thickness laceration extending to the inside his mouth.
Investigations and Treatment
26 The Plaintiff was immediately taken to the Geelong Hospital by ambulance where a plastic surgeon operated on his face. He remained in Hospital overnight and was thereafter reviewed in Outpatients.
Consequences of the Workplace Incident
27 The Plaintiff now suffers two prominent scars on the right side of his face, each about 7 to 8 centimetres in length, one which follows the jaw line and one which curls up under the lip. He also suffers numbness in the right corner of his mouth, both inside and outside. The numbness extends along the length of the scar which is closest to his mouth. He also suffers from swelling in the right corner of his lip. The visibility of the scar, numbness and swelling is much worse in cold weather when the scar also develops a bluish tinge. He also finds that the scar tissue will burn more readily in the sun even when the rest of his face does not burn. The scar tissue will go bright red and will peel pretty badly as well.
28 As a result of the numbness there are times when he dribbles and will spit involuntary while talking to people, as he has less control over saliva. This consequence is particularly prevalent when he is relaxed and when he has been drinking. He also has difficulty drinking because of the numbness, which he describes as the feeling you have after a dental injection. The scarred numbed area also feels twice its size.
29 The inside of his right cheek is scarred and rough and he finds that he will readily bite the inside of his mouth. At times he also experiences a throbbing sensation around the scar, which he says is visible as a twitch and is commented upon by his partner.
30 He experiences additional difficulties shaving because the scarred tissue has created a rough surface and he tends to cut himself more often and it takes longer to shave. I have to be very cautious of it, because it becomes another
problem when I go out if I have cuts on my face on top of the scar.[17]
[17] Tr 12
31 He also experiences scaly skin around the scarring which produces itchiness. The scarred tissue becomes dry and peels, which he tries to control with moisturiser. The dry and flaking skin varies in frequency from weekly to monthly. He also experiences increased incidence of blackhead pimples in the scar tissue.
32 The Plaintiff has noticed a change to the contour of his face as the right side has dropped at least the thickness of the saw blade. This has affected his smile in particular.
33 The Plaintiff said that he is very self-conscious of the scarring and at times will try to conceal the scar by talking with his hand over his face. He often notices people looking at his scarring. He is embarrassed by public attention and avoids being photographed on his right side. He is paranoid that people think that he has been fighting and having been glassed. When he first meets people it is inevitable that he has to give an account of how the scarring occurred. He is embarrassed by people looking at and questioning him about the scarring. He is also constantly reminded of the incident by the numbness and the visibility of the scars.
34 Under cross examination:
35 The Plaintiff confirmed that he can feel the scarring on the inside of his mouth all of the time because the scarring there is a lot thicker and touches the inside of his gum line and his teeth. He agreed that the overall appearance of the scarring has improved since the injury occurred. However, the nerve damage and loss of sensory perception has not changed.
36 The Plaintiff and his partner are due to be married next weekend. He continues to play football for a local club, he goes ocean fishing, he and his partner socialize with family and friends and he performs domestic chores. In short, his injury has had little if any effect upon his domestic and recreational activities. Since 2005 his gross annual salary has been between $70,000 and $90,000.
Medical Reports
37 Dr Martin Schaap General Practitioner[18] reports that the Plaintiff required extensive plastic surgery for his lacerations. Dr Schaap notes that the Plaintiff has significant ongoing facial scarring which is immediately obvious from several metres away. I interpose to concur with this observation. Dr Schaap further notes that the Plaintiff has complained of a persistent “fuzzy” feeling in his right upper and lower teeth which the doctor suspected was due to nerve damage suffered as a result of the injury. The Plaintiff was self-conscious of his scarring, preferred the company of older friends and tended to avoid social occasions. In his further report[19]Dr Schaap confirmed the Plaintiff's ongoing facial numbness and the spitting of saliva which this caused. The Plaintiff's symptoms had now stabilised and were likely to be permanent with little change.
[18] PCB 35-36
[19] PCB 37
38 Mr Anthony McDonald Surgeon reviewed the Plaintiff in October 2005 when his scarring had not yet settled.
39 Mr Murray Stapleton Surgeon reviewed the Plaintiff in October 2009. Mr Stapleton described a deeply lacerated face marked by two long scars on the right side. Mr Stapleton further notes: [20]
he is embarrassed in public to show the right side of his face. He does not enjoy questions and he is particularly anxious about his wedding photos...he turns away from photographs. He has diminished sensation over the right side of his lower lip. He finds it difficult to hold fluid in his mouth and kissing is awkward for him. He sometimes bites the inside of his lip because that lacks sensation and... he is not competent so far as keeping fluid within his mouth which causes him to dribble down the right side of his mouth from time to time... he is quietly spoken and I am sure he is genuine...
Over the angle of the jaw he has a long 7 centimetre scar. In front of that scar he has a scar which stretches towards the angle of his mouth. It is a through and through laceration as such that the outer aspect of that scar is quite thick.. That scar in all extends for 8 cm.
The prognosis... is that he has reached maximum medical improvement... no further surgery will assist in diminishing his disfigurement. There will not be any long-term deterioration of his condition.
Analysis of the Evidence and Findings
[20] PCB 47-48
40 I have set out above a brief synopsis of evidence. However, my findings and reasons for judgement have only been determined after careful re-reading of the whole transcript of evidence, including submissions of Counsel and the tendered documents. I have also examined the authorities to which I was referred.
41 The tendered medical reports are limited but relevant and consistent in terms of the history taken; treatment; description of the disfigurement and associated physical consequences; and prognosis for the future.
42 I am satisfied from the medical reports as confirmed by the viva voce evidence of the Plaintiff that he has been a co-operative and responsive patient who has returned to work full time as soon as practicable and otherwise pursued his normal domestic, social and sporting activities.
43 I note that Defendant’s Counsel made particular reference to the evidence which indicated that the Plaintiff's work capacity, domestic, social and recreational activities have not been adversely affected by his disfigurement. I accept that the Plaintiff works extended hours in his usual employment, his recreational activities have been largely unaffected and he is in a long-term committed relationship and scheduled to be married in a few days. However, in my view these kinds of consequences are common and probably usual in the context of applications based upon disfigurement which are limited to pain and suffering damages only. The essence of the “serious” consequences for a plaintiff is typically found in other areas. Furthermore, I do not accept that the Plaintiff's disfigurement has had no impact upon his social life. Indeed I accept that it has had a very substantial impact in terms of his ongoing acute embarrassment appearing in public generally and talking to people in particular.
44 In his evidence before the Court I am satisfied that the Plaintiff presented in a frank and considered manner, describing his disfigurement and its consequences for him without apparent embellishment.
45 I turn now to consider the questions as formulated by the Court of Appeal in the Barwon Spinners & Other Cases, noting that the first and second questions were essentially not in dispute in this case:
46 First, what is the injury and what is the disfigurement said to be produced in consequence?
47 The Plaintiff suffered traumatic injuries to the right side of his face as a result of two deep lacerations.
48 The consequent disfigurement to the right side of his face is described in various medical records, in particular by Mr Stapleton as set out above.
49 Secondly, is the disfigurement permanent, i.e., likely to last for the foreseeable future?
50 In my view the evidence readily supports a conclusion that the disfigurement suffered by the Plaintiff is permanent for the purposes of the Act.
51 Thirdly, are the consequences for the Plaintiff such as to satisfy the “very considerable” test?
52 I specifically state that, consistent with section 134AB(38)(h) I have only taken into account pain and suffering from the organic injury to the Plaintiff’s face. These properly extend of course to the social impact on the Plaintiff, by way of embarrassment and avoidant behaviour, as distinct from any psychological consequences.
53 In relation to the consequent nerve damage, I acknowledge that this is not a consequence per se which can be treated as part of the disfigurement. However, as correctly pointed out by Plaintiff’s Counsel, it can be considered to the extent that it contributes to the Plaintiff’s disfigurement. This is relevant to the alteration of the movement of the Plaintiff's mouth, his lack of control over saliva resulting in drooling and spitting, the twitching in the scar tissue; and the overall change in the dynamics of the face.
54 It is not in contention that the Plaintiff, at the young age of 24 years, sustained deep lacerations to the right side of his face which has resulted in significant permanent scarring which is very obvious from a distance of many metres.
55 The only real issue in this application is whether the disfigurement is serious. In making this assessment I am guided by the criteria outlined in Baker’s case, namely: the number, size, location and degree of obviousness of the scars and associated deformities, and the age of the Plaintiff.
56 Accepting that the disfigurement suffered by the Plaintiff is permanent I am satisfied that it is also serious having regard to the following associated features:
a) The two scars are located on the face and as such could hardly be more prominent; b) The scars are relatively extensive, each being 7- 8cm long and about .3 cm wide; are partly red pigmented; and rough and irregular in appearance; c) The scars are very obvious from a considerable distance and have proven to be sufficiently confronting and unsightly to members of the public who stare and new acquaintances, who commonly enquire as to their origin; d) The appearance and location of the scars prevent the Plaintiff from effectively disguising their appearance; e) The Plaintiff has been afflicted with all the features of the disfigurement at a relatively young age; f) The numbness created by the permanent nerve damage has produced further distressing and ongoing consequences for the Plaintiff in the nature of involuntary dribbling and spitting while in conversation; g) The ongoing numbness creates the perception for the Plaintiff that the scarred tissue is much larger, akin to the feeling of a dental injection; h) The plaintiff suffers additional risk of sunburn to the scarred tissue; increased incidence of pimples and blackheads; difficulties shaving with increased incidence of cuts; and a dry and scaly skin associated with the lower scar, which is not completely controlled by the application of moisturiser; i) The Plaintiff suffers additional discolouration to the scarred area in colder weather when it changes to a bluish tinge;
j)
The facial trauma and consequent scarring has permanently altered the contour of the Plaintiff's face on the right side and in particular has changed the appearance of his smile;
k)
The Plaintiff develops a throbbing sensation in the corner of his mouth, particularly when embarrassed or nervous, which is visibly apparent in the form of twitching; and
l) The Plaintiff suffers ongoing embarrassment from his facial appearance. 57 I am satisfied that all of the above features are ongoing and permanent incidents of the Plaintiff's disfigurement.
58 Accordingly, this application concerns a young Plaintiff exhibiting two quite extensive scars and deformities which are readily visible on his face. I am satisfied that the accumulation of features of the Plaintiff’s disfigurement taken together with the Baker criteria, when viewed objectively constitute a consequence with respect to pain and suffering which can be fairly described at least as very considerable and certainly more than significant or marked
when judged by comparison with other cases in the range of possible
disfigurements.
59 Accordingly, I am satisfied that the Plaintiff has suffered a permanent serious disfigurement to his face.
Conclusion
60 I find that the Plaintiff does currently suffer an injury to the right side of his face as a result of the workplace accident on 10 December 2004 in the course of his employment which constitutes a permanent serious disfigurement for the purpose of paragraph (b) of the definition of serious injury. Accordingly, I am persuaded that the injury suffered as a result of the employment related accident is a “serious injury” within the meaning of the Act.
Orders
61 The Plaintiff is granted leave pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985, to commence proceedings for the recovery of damages in respect of pain and suffering.
62 After hearing the parties on the question of costs the following orders were made.
1. The Defendant pay the Plaintiff’s costs of the proceeding, including Reserve costs, to be taxed on County Court Scale D in default of agreement;
2. Certify for:
a) Two Counsel: Senior Counsel’s fee on brief fixed at $4,000 [inclusive of circuit fee] with two hours of special conferences @ $400 per hour; b) Junior Counsel’s fee on brief fixed at $2,144 [inclusive of circuit fee] plus two hours of special conferences fixed at $259 per hour; 3. The Defendant to pay the Plaintiff’s necessary costs of the preparation, filing and service of one court book on Scale D, and any additional copies at the commercial copying rate to be determined by the taxing registrar.
4. Certificate for Counsel to hear Judgement fixed at $426 plus one circuit fee fixed at $238.
5. Proceedings otherwise dismissed.
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