Dobbin v VWA
[2022] VCC 2173
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-22-01527
| MATTHEW DOBBIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 November 2022 | |
DATE OF JUDGMENT: | 9 December 2022 | |
CASE MAY BE CITED AS: | Dobbin v VWA | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2173 | |
REASONS FOR JUDGMENT
---
Subject:WORKPLACE INJURY
Catchwords: Injury to hand and finger – partial amputation – serious injury – disfigurement
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2014; Transport Accident Act 1986
Cases Cited:Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Ingram v Ingram [1996] 2 VR 435; TAC v Garcia [2015] VSCA 225; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Humphries & Anor v Poljak [1992] 2 VR 129; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; MacDougall v Victorian Workcover Authority [2021] VCC 1292; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Hawkins v DHL Express [2013] VSCA 26; Nguyen v Natures’ Gift Australia Pty Ltd [2018] VCC 1960; Naguib v VWA [2017] VCC 1710
Judgment: Application dismissed
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms H. Donmez | Verduci Lawyers |
| For the Defendant | Ms K. Manning | TG Legal & Technology |
HIS HONOUR:
1This is an application for the grant of a serious injury certificate pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCA”) to enable the commencement of common law proceedings for damages for pain and suffering. The plaintiff was represented by Ms Donmez of counsel. The defendant was represented by Ms Manning of counsel.
2There is no argument but that the plaintiff suffered a traumatic injury to the index finger of his right hand when working on a truck’s fanbelt in the course of his employment on 23 November 2017. The plaintiff’s right index finger was torn between the pulley and a fan belt.
3The plaintiff is right-hand dominant.
4The scope of the application is narrow. This is essentially a type of case often enough referred to compendiously but sometimes less than helpfully as a “range” case.
5Ms Manning, who appeared on behalf of the Victorian WorkCover Authority (“VWA”), endeavoured to argue as relevant to the application the fact that the plaintiff having previously suffered from bilateral carpal tunnel syndrome with some attendant symptoms of that condition affecting a number of his activities and pursuits that are relied on as adversely affected by the right finger injury. True enough that the carpal tunnel syndrome did have limiting effects on the plaintiff, a matter about which he acknowledged, but this condition is fully resolved and has been since surgery was performed in October 2021.[1] Ultimately, I regard the issue of the plaintiff’s previous bilateral carpal tunnel syndrome as peripheral, and that the question is whether the consequences of the amputation injury to the right index finger are sufficient to satisfy the statutory test for pain and suffering.
[1] Transcript (‘T’) 49, Line (‘L’) 28-29.
Plaintiff’s evidence
6In terms of his evidence-in-chief, the plaintiff relied on three affidavits he deposed to on 10 December 2021,[2] 22 August 2022,[3] and 3 November 2022.[4]
[2] Exhibit P1, Plaintiff’s Court Book (“PCB”) 17-22.
[3] Exhibit P1, PCB 23-26.
[4] Exhibit P1, PCB 27-28.
7In addition, the plaintiff tendered the following material:
·Report of Mr Cheng Lo dated 05 December 2019;[5]
·Report of Dr Murray Stapleton dated 25 March 2020;[6]
·Report of Dr John Crock dated 19 May 2022;[7]
·Report of Dr John Gill dated 08 June 2022;[8]
·Report of Dr Peter Wilkins dated 20 June 2022;[9]
·Report of Dr Loke Tang dated 21 October 2022;[10]
·Workers Injury Claim Form dated 27 November 2017;[11]
·Operation Report dated 23 April 2017;[12]
·Operation report dated 28 April 2018.[13]
[5] Exhibit P2, PCB 29-50.
[6] Exhibit P3, PCB 51-61.
[7] Exhibit P4, PCB 62-77.
[8] Exhibit P5, PCB 78-85.
[9] Exhibit P6, PCB 86-90.
[10] Exhibit P7, PCB 91-126.
[11] Exhibit P8, PCB 129-130.
[12] Exhibit P9, PCB 131.
[13] Exhibit P10, PCB 132.
Defendant’s medical evidence
8The defendant tendered the following material:
·Medical report of Mr Thomas Robbins dated 6 April 2022;[14]
·Forrest Road Medical Centre dated 24 February 2020;[15]
·Hoppers Lane General Practice 11 September 2012;[16]
·Plaintiff resignation documents dated 26 July 2022;[17]
·Bowling statistics for court book dated 22 June 2017.[18]
[14] Exhibit D1, Defendant’s Court Book (“DCB”) 3-7.
[15] Exhibit D2, DCB 8-20.
[16] Exhibit D3, DCB 21-61.
[17] Exhibit D4, DCB 62-64.
[18] Exhibit D5, DCB 65-69.
9I have read and considered the material relied upon by the parties. I have also had regard to the oral evidence of the plaintiff and the addresses of counsel.
The nature of the claim
10“Serious injury” is defined by s 325(1) of the WIRCA and it provides:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function ….
(b) permanent serious disfigurement…
(c) …
(d) …”
11The plaintiff’s application for leave relies on paragraphs (a) and (b) of the definition of “serious injury.” The part of the body said to be impaired for the purposes of paragraph (a) and disfigured for the purposes of paragraph (b) is the plaintiff’s right index finger. The posited injury of post traumatic stress disorder was understandably on the evidence not pursued.
Relevant legal principles
12There are a number of settled legal principles that inform the question of a grant of leave. The Court must not give leave unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury”.[19]
[19] Section 335(5)(a) of the WIRCA.
13In order to establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by him arose out of or due to the nature of his employment with the employer on or after 1 July 2014;[20]
“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[21]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[22]
[20] Section 5(1) of the WIRCA.
[21] Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33 at paragraph [33].
[22] Section 325(2)(b) and (c) of the WIRCA.
14The requirement to satisfy the elements mentioned above is sometimes referred to as the “narrative test”.
15Furthermore, in determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
16In addition, in determining the application:
the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise;[23]
the Court must assess whether “the injury” is a “serious injury” as at the time the application is heard;[24]
the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[25]
[23] Section 325(2)(h) of the WIRCA.
[24] Section 325(2)(j) of the WIRCA.
[25]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
17In assessing the seriousness of the claimed impairment consequences, the Court is required to consider both the effects of the impairment and those aspects of the body function that remain unaffected.[26]
[26] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 181.
18It has been said that the question of whether an injury satisfies the narrative test is largely one of impression or value judgment.[27]
[27]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; see also Sabo v George Weston Foods. [2009] VSCA 242, [67].
19The “consequences” to the plaintiff of any impairment or loss of body function in relation to paragraph (a) or disfigurement in relation to paragraph (b) of the definition of serious injury must be “serious”. This is expressed in s325(2) and, in particular, paragraphs (b) and (c), which state:
“(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, … as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, … respectively;
(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of section 335(2) unless -
(i) the pain and suffering consequence …
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;” (Emphasis added).
Impairment or disfigurement methodology of comparison
20For a claim for disfigurement under paragraph (b), the WIRCA requires that seriousness is determined by reference to the consequences to the worker of the impairment and/or disfigurement with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments and/or disfigurements, and that when such exercise is undertaken it may fairly be described as being more than significant or marked and as being at least very considerable. In Ingram v Ingram[28] at 438, Callaway JA observed in respect of s93(17)(b) of the Transport Accident Act 1986 that:
…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 body function, severe long term mental illness and loss of an unborn child.
[28][1996] 2 VR 435.
21Whether the statement in Ingram should be applied in workplace injury proceedings as opposed to transport accidents has not been definitely answered as far as I am aware. The words “as the case may be” in s325(2) suggests that the requisite comparison of injuries is to be confined to comparison within the class of injuries relevant to the particular application and not by reference to injuries in other classes. In any event, the point was not adumbrated in the course of the application and, irrespective of the possible differences in approach by way of the appropriate comparison, my decision would not have been different.
The plaintiff
22The plaintiff was educated partly through Year 9. He completed a Certificate III in both Automotive Electrical Technology and Heavy Vehicle Mechanical Technology. He worked from 2003-2017 as a mechanic with Bunker Freight Lines. After leaving Bunker Freight Lines and in approximately 2017 he began working for Lindsay Brothers Transport.
23The plaintiff’s general health was good subject to having suffered bilateral carpel tunnel syndrome affecting both wrists.
Medical treatment
24Following the work injury, the plaintiff was taken to the Sunshine Hospital where his right index finger was amputated just before the distal interphalangeal joint. The remaining part of the top of the finger was repaired using a full thickness graft, taken from the flexural surface of his right wrist.
25The plaintiff has experienced some complications with the finger, and he has had two subsequent operations; one to remove a regrowing part of the nailbed and the another to excise a cyst in the fingertip.
26He attended a hand therapist, Nick Antoniou, for treatment following surgery. He has been treated for his injuries at the Sunshine Hospital by Mr Cheng Lo, and by Dr Saeideh Khodabakhshi at Hoppers Lane General Practice, Werribee.
Current condition
27The assessment of the plaintiff’s condition and the functional and other limitations that affect him, and that were relied on by him in support of his application, are derived from his affidavit evidence as well as the evidence he gave in answer to questions put to him in cross-examination.
Effect of injury on work
28Following the accident, the plaintiff was off work for three weeks and then returned on light duties for four weeks, before resuming normal duties. Two further surgeries followed and the plaintiff was off work for a combined total of eight weeks.
29At the time of swearing his first affidavit the plaintiff was working full time, six days per week for Lindsay Brothers as a mechanic. He said he had great difficulty attending to his work properly because of an inability to manipulate small objects due to the lack of sensation in what remains of the terminal part of the right index finger and the limited use of that finger.
30The plaintiff deposed that he had considered other career pursuits and had entertained the idea of working in the public service, but considered his options would be limited because of his injury. Although why he thought this would be the case was not really explained. He also said that prior to the injury he had entertained the thought of a career as a police officer but, because he no longer has a trigger finger, he does not believe he would be a suitable candidate. He explained that he had been unsuccessful in progressing past a group assessment stage for Fire Rescue Victoria to which he applied, but this failure to proceed appears to have been unrelated to his injury. The plaintiff also deposed that he had hoped to become a train driver but again the extent of any efforts in the pursuit of that interest was lacking.
31The plaintiff said he suffers severe pain and discomfort during cold weather and the top of his index finger stump is tender, and that he must be careful not to bump the tip of the finger.
32The plaintiff deposed that he has very reduced sensation in the index finger and that he cannot differentiate between sharp and blunt, or hot and cold. His finger is also always cold to the touch.
33The tip of his finger is now wider than the rest of his finger making it hard to be precise when pushing buttons or keys.
Sport and recreational pursuits
34The plaintiff is relatively young. He appeared to be a fit man, and this is perhaps reflected to some extent in the fact of his pursuit of rock climbing, weightlifting, ten pin bowling, cricket, football, fishing, playing pool and darts. A good deal of his evidence addressed the extent and manner in which these activities are now difficult for him to engage in. He deposed that he had not attempted rock climbing since his injury. During cross-examination, he acknowledged that he had tried rock climbing once, after the accident, and perhaps a couple years ago, but not recently.[29] He bowls once per week and is in a league. However, he has a need to use a large and heavier bowling ball to remain competitive.
[29] T30, L22-30.
Activities of daily living
35It is unsurprising, given the injury suffered by the plaintiff, that he encounters a number of difficulties in attending to activities of daily life. He related how mundane tasks such as buttoning or zipping clothes, tying shoelaces or a knot and toileting are problematic in their execution. He finds it difficult when buttoning up or zipping his son's jumpsuits. Changing a nappy is more difficult. Opening sealed containers such as yoghurt, mail and packages, and extracting a credit card or coins from his wallet and navigating packeted food such as nuts using his right hand is much more difficult. Screwing flat pack furniture is difficult. Understandably, the plaintiff said that when he is called on to do such things in front of someone he experiences anxiety and frustration.
36He said he had previously derived enjoyment from playing the piano and the guitar.
37He now finds it difficult using cutlery to cut his food. His desire to go out for dinner with his partner or friends has been diminished. He had previously enjoyed working on a car, tinkering around and helping out his friends, which is now harder for him.
38He plays cards often with his family and finds it hard to hold the cards and shuffle them when it's his turn. He says he tries and hides his finger and gets uncomfortable.
39He says he has difficulty sleeping as he experiences pain on knocking his finger and has vivid memories of the incident.
40He says he continues to be self-conscious and embarrassed about his finger. He says he will think about his finger a lot when intimate with his partner, and even when just holding hands with her. He said that every time he sees his right hand he is reminded of the incident of injury and the loss of the tip of his finger. As he put it in his affidavit, “when carrying out activities in my daily life I find it will put me off as I constantly think about it”.[30]
[30] Exhibit P1, PCB 21.
Second affidavit
41In his second affidavit sworn on 22 August 2022, the plaintiff deposed to ongoing problems with his right index finger. He explained that the sensation in the finger is considerably affected although to a lesser extent in warmer weather. In colder weather he develops a throbbing sensation with tingling and pins and needles present. There is impaired sensation. He has run the finger under hot water, with other parts of the finger or other fingers of the hand having been scalded because the tip of the index finger lacks the sensation to feel the heat of the water. The constant tingling and pins and needles extend up through the finger with the sensation described by the plaintiff as similar to a burn injury.
42He continues to experience problems with fine manipulation tasks including tying fish hooks, using toilet paper, holding and playing darts, extracting money or cards from his wallet.
43He continues to encounter difficulty playing the guitar and piano because of impaired sensation and loss of feeling and touch in his index finger.
44The plaintiff continues to enjoy ten pin bowling which he plays at league level. He believes that his game has dropped off because the index finger is deployed external to the grip in order to maintain control over the delivery of the ball onto the rink. He says he lacks the consistency in scoring which he used to possess, and he cannot reach the level at which he aspires to play.
45He has a dart board at home but the loss of sensation in his right index finger impacts on his ability to execute the game with the skill he once did. He has a pool table at home that he enjoys playing but plays left handed, which means that his right hand is his bridging hand with attendant difficulty in its execution.
46The plaintiff’s sleep is interfered with because of pain, numbness, tingling and, in colder weather, a throbbing of the right index finger.
47The use of barbells he has at home as an aid to exercise is a cause of discomfort and pain when used by him.
48The plaintiff said he used to enjoy motorbike riding, but following the injury he found that even if he double gloved his right hand there was insufficient protection against the cold causing his finger to throb and ache.
Third affidavit
49In his third affidavit the plaintiff reiterated that he continues to suffer the consequences of the amputation injury to his right index finger to which he previously deposed.
Updated employment status
50The plaintiff is no longer employed with Lindsay Brothers. He found he was no longer as proficient at his job as he used to be with the result that he was enjoying it less.
51Since approximately July 2022, the plaintiff has been working as a Shunter with V/Line at Southern Cross Railway Station. He says he has some difficulty with his work tasks, including the inability to properly hold onto a work torch, or grip objects with his right hand. The plaintiff wear gloves at work to try and reduce the pain in his finger, particularly in cold weather, and to avoid hitting his finger on objects which triggers pain. The plaintiff says that he also wears a glove to hide his injury from people. He says that he does not like the look of his finger and hand. It does not look attractive to him. He says he is still embarrassed and self-conscious about the appearance of his finger and hand.
Current medical treatment
52The plaintiff is no longer receiving medical treatment. He understands there is nothing more the doctors can do for him. For pain relief, he takes over-the-counter medications such as Panadol.
Plaintiff’s medical evidence
Mr Cheng Lo, plastic and reconstructive surgeon
53In a report of examination dated 5 December 2019 following examination, Mr Lo described the existence of the nailbed/nail remnant at the tip of the plaintiff’s right index finger. Mr Lo reported that:
“from the appearance point of view, the right index finger did not appear normal. According to the patient, the nailbed/nail remnant was catching and causing him discomfort. His workplace rehabilitation officer, who would have a better understanding of the requirements and demands at his workplace, best determines the effect of this injury on the patient’s capacity for work.”[31]
[31] Exhibit P2, PCB 31.
Dr Murray Stapleton, plastic and hand surgeon
54In his report on examination dated 25 March 2020, Dr Stapleton diagnosed a traumatic amputation of the tip of the plaintiff’s right index finger to his dominant hand. Dr Stapleton wrote that the plaintiff continues to suffer, and will permanently suffer, from the effects of the injury. In his opinion, the plaintiff has reached maximum medical improvement.
55Dr Stapleton recorded that the plaintiff:
“has no pain at rest, providing that the weather is not cold. Cold weather causes him discomfort. The tip of the index finger stump is tender and he is careful not to bump or abrade that. He cannot, with skill, manipulate small objects because of a lack of sensation in what remains of the terminal part of the right index finger, such that when he picks up small objects such as screws, he opposes the thumb to the pulp of the middle finger. For the distal 2 cm of that index finger, he has very reduced sensation in that it is not protective to the extent that he cannot tell the difference between sharp and blunt or hot and cold, Mr Dobbin’s condition has reached maximum medical improvement.”[32]
[32] Exhibit P, PCB 20-21.
56Dr Stapleton recorded an absence of:
“… relevant past history. He has recurring carpal tunnel syndrome involving both wrists and, from time to time, he has been placed on a public hospital waiting list for the surgery, which has not yet been performed. This accident has not aggravated his carpal tunnel status. He takes no medication.”[33]
[33] Exhibit P, PCB 21.
Dr John Crock, plastic and reconstructive surgeon
57Dr Crock, in his report on examination dated 19 May 2022, reported that the plaintiff’s right index finger had been amputated 8 millimetres distal to the DIP joint crease. The reconstruction was well-rounded and smooth with good soft tissue coverage of the bony stump. However, the fingertip is hypersensitive and light touch to the area makes the plaintiff feel as if he is touching a very hot object that is burning him. Dr Crock observed the remnants of a full thickness skin graft on the dorsum of the finger with this area of the digit as smooth, soft, supple, non-adherent to the underlying tissue and showing no evidence of ulceration. A scar in the skin crease of his flexor wrist crease is pale, soft, supple, non-adherent to the underlying tissue and shows no evidence of ulceration.
58Dr Crock said he considered that the:
“situation is likely to remain stable for the foreseeable future. Mr Dobbin’s impairment relates to amputation of the distal 80% of his right index finger, a DIP joint that has reduced range of movement and a fingertip that is hypersensitive as a result of the injury.”[34]
[34] Exhibit P, PCB 66.
59Dr Crock noted a medical history of blunt kidney trauma as a child from which he made a full recovery. He also had reported an injury to his right thumb when he was leading a dog on a leash and the dog pulled away suddenly, jarring his thumb. He wrote that in 2021 the plaintiff had a bilateral carpal tunnel release performed which was successful and, as a result, his carpal tunnel symptoms resolved.
60Dr Crock commented that the plaintiff was extremely health-conscious, enjoying rock climbing, gym, ten pin bowling, darts and other sporting activities which kept him very fit.
61With respect to the effect that the injury has had on the plaintiff’s social and domestic life, Dr Crock noted that the plaintiff’s sensitive fingertip has impacted many areas of activities of daily living. Self-care and personal hygiene are impacted. Washing himself can sometimes be irritating because the index finger gets touched and rubbed which causes a discomfort in sensation. Likewise, putting on shoes and socks is often uncomfortable, as is eliminating and wiping his bottom with his right hand which produces annoying sensation in the hand. His communication has been impacted, with writing proving uncomfortable when the pen touches the tip of the index finger and likewise when using a keyboard.
Dr Peter Wilkins, occupational physician
62Dr Wilkins’s report is dated 20 June 2022. He reported that the plaintiff had sustained an avulsion fracture of the terminal phalanx of his right (dominant) index finger requiring amputation and subsequently two more clean-up operations.
63When examining the plaintiff, Dr Wilkins compared the left index to the right index with the right index finger shortened by 2.5 centimetres. Flexion at the distal interphalangeal joint was reduced to half normal range compared with the left side. Extension was full. There was a normal range of movement at the proximal interphalangeal joint and metacarpophalangeal joint.
64Dr Wilkins reported on numbness with reduced blunt/sharp discrimination over the terminal 1 centimetre or so of the affected digit, with the exception of a small 1 centimetre x 1 centimetre area of hypersensitivity on the dorsum of the residual distal phalanx sector. He observed a barely noticeable donor skin graft site on the volar surface of the right wrist just above the wrist crease.
65Dr Wilkins wrote that the plaintiff’s medical treatment had comprised three surgical procedures and some hand therapy with minimal attempt at desensitisation of the residual stump of his right index finger. No active treatment was being undertaken and none was foreshadowed. Dr Wilkins thought that the plaintiff had reached maximum medical improvement and that his current condition is “as good as it gets”.[35]
[35] Exhibit P6, PCB 89.
Dr Loke Tang, general practitioner
66Dr Tang’s medical report dated 20 October 2022, reiterated much that has already been identified but he did comment that:
“……………..
4. The effect of the injury is not limiting his capacity for work, social and domestic life.
…………………..”[36]
[36] Exhibit P, PCB 91.
Dr John Gill, consultant in general and forensic psychiatry
67Dr Gill, in a report dated 8 June 2022, recorded that the plaintiff:
… said that the tip of the finger remains very sensitive to touch and temperature, and he has an ongoing tingling sensation in the finger.
Mr Dobbin said that after being off work for three weeks following the injury he made a return to work doing light duties. As a result of his injuries, doing any mechanical or electrical tasks was awkward, and after about six months he took on a management role in which he did not need to use tools. He was, however, disappointed at not being able to do his pre-injury work tasks. He said that at work he has some difficulty with tasks such as typing or work on the computer. He was frustrated at the impairment due to his condition as he had always been an active outdoor person involved in activities such as ten-pin bowling, guitar playing, fishing and playing pool and darts. He said that all of his fine finger movements have been affected by his injury.”[37]
[37] Exhibit P5, PCB 79.
Defendant’s medical evidence
Mr Thomas Robbins, hand, plastic and reconstructive surgeon
68Mr Robbins, in his report dated 6 April 2022, addressed the plaintiff’s relevant past history, present history, examination findings and responses to specific questions. He recorded that the plaintiff had undergone a partial amputation to the distal interphalangeal joint on the right index finger. He found the amputation stump stable. The amputation stump was an optimal shape. There were no nail remnants present. The distal interphalangeal joint in the finger with the amputation flexed to 45 degrees with full extension with normal flexion that of 80-90 degrees. All other joints had a full normal range of movement. There was a 3 centimetre transverse scar on the front of the right wrist representing a full thickness skin graft donor site that was hardly visible and was non-tender and gives the plaintiff no trouble.
69Mr Robbins thought the plaintiff’s prognosis was one of possible improvement with time as he came to forget about the fact of the accident and the sensitivity settles.
70With respect to the plaintiff’s capacity for social, domestic and recreational activities, Mr Robbins recorded that the plaintiff complained that he can no longer go rock climbing because his grip is weak and because of the sensitivity of the amputation stump. That he has trouble playing the piano and undertaking fine manipulative movements, such as tying fish hooks, toilet difficulties, playing football with his child, darts, tenpin bowling, turning pages when reading a book, taking photographs with his mobile phone, typing on his computer, extracting money from his wallet, difficulty in playing cards and using keys and riding his motorbike. In addition, the state of the finger interferes with sexual foreplay.
71Mr Robbins made these further comments at the end of his report:
1. He is expected to have difficulty with tripod pinch (thumb, index and middle finger) but I believe his stated difficulties are greatly exaggerated.
2. I believe Mr Stapleton’s impairment assessment is excessive (I accept it was made in March 2020). Mr Stapleton estimates a whole person impairment of 6%. I believe he has a 5% impairment of his right hand because of the amputation. This translates to a 3% impairment of his upper limb and a 3% whole person impairment.
3. I believe the use of the skin graft to repair the amputation stump was unnecessary except possibly for providing another item number.[38]
[38] Exhibit D1, DCB 6.
The plaintiff cross-examined
72Before addressing the plaintiff’s evidence given in answer to questions in cross-examination, it is useful that I record that I formed a favourable view of the plaintiff. In my opinion, he gave credible evidence and he did not seek to over-embellish the functional implications and effects on his day to day life that has resulted from the injury.
73The plaintiff said that he was able to continue bowling despite the effects of his carpal tunnel syndrome, but he accepted it had impacted his performance. The plaintiff had an injection in September 2015 in the right hand but, in 2016, the pain and altered sensation returned and this presentation stayed with him intermittently until he underwent surgery in 2021.
74Ms Manning spent some time in directing the plaintiff to clinical notes of attendances on Dr Das, a general practitioner who treated the plaintiff, and insofar as they related to his carpal tunnel syndrome. The notes recorded, for example, an attendance by the plaintiff on 24 February 2020 with bilateral carpal tunnel syndrome that was resulting in pain and pins and needles and altered sensation in both hands. It was worse at night, and more evident on the right hand, with the symptoms relieved with a shaking of hands. The plaintiff was experiencing disturbed sleep. No wasting of muscles was identified and the plaintiff’s grip was normal.[39]
[39] Exhibit D2, DCB 10.
75Other attendances on Dr Das for carpal tunnel included on 10 March 2021. On 11 March 2021, the plaintiff was again seen for carpal tunnel and he had not been sleeping well.[40] On 2 August 2021, the plaintiff attended on Dr Loke Tang for carpal tunnel and symptoms that included pins and needles and a weakness in the hands at times.[41] An attendance from October 2021 noted that surgery had been performed with good results for the plaintiff’s carpal tunnel.
[40] Exhibit D2, DCB 14.
[41] Exhibit D2, DCB 16.
76The plaintiff was questioned whether his carpal tunnel had affected his social activities, or if playing the guitar or riding his motorbike and playing pool tended to aggravate his symptoms when his hands needed to be maintained in a fixed position. The plaintiff denied that he needed to avoid these activities because of the condition and said he had continued to participate in them, although he accepted that if he found himself unable to shake the symptoms off, then all of these activities were affected to some extent.
77The plaintiff agreed with Ms Manning that his carpal tunnel condition affected his hands more so than his wrists and it had affected the sensation in both hands and the strength in them. He also accepted that his carpal tunnel syndrome had affected him for a period of approximately 12 years, but was only mentioned briefly in his first affidavit.[42]
[42] Exhibit D1, PCB 18 paragraph 7.
78The plaintiff was taken to a history recorded by Dr Stapleton in his report dated 25 March 2020,[43] which was of recurring carpal tunnel syndrome involving both wrists but did not implicate the plaintiff’s hands and the effect of the condition on them.
[43] Exhibit P3.
79Ms Manning directed the plaintiff to notes of attendance at the Hoppers Lane General Practice on 26 July 2017[44] and an attendance on Saeideh Khodabakhshi, with “left knee pain sliding for three weeks”, pain on the back of knee and front and how he had been unable to conduct a proper examination of the plaintiff because of pain.
[44] Exhibit D3, DCB 46.
80On 12 September 2020, the plaintiff attended on Dr Das with left knee pain and a record included a meniscal tear.[45]
[45] Exhibit D2, DCB 13.
81On 10 March 2021 the plaintiff attended Dr Das, who identified left knee pain, ongoing left knee pain, a history of a meniscal tear, and with pain worse on using stairs.[46]
[46] Exhibit D2, DCB 14.
82The plaintiff said that he would consider undergoing surgery in the event the knee pain he suffered continues to be accompanied by flareups, the last occasion of which he recalled was in March 2021.
83Ms Manning directed the plaintiff to the contents of his second affidavit particularly paragraphs 4 and 5 and the account he related of pain and altered sensation in the affected finger. The plaintiff says the pain is not constant but comes and goes, but there is a constant sensation of which he is aware although the nature of the pain changes.
84The plaintiff expanded on his answer and said that a benign activity such as walking is accompanied by a throbbing sensation whereas pain is experienced whenever pressure is applied or some inadvertent touching of it occurs. He said he experiences constant tingling.
85Ms Manning took the plaintiff to the following extract by Dr Stapleton in addressing the plaintiff’s “Current Status” and who reported that:
Mr Dobbin has no pain at rest, providing that the weather is not cold. Cold weather causes him discomfort. The tip of the index finger stump is tender and he is careful not to bump or abrade that. He cannot, with skill, manipulate small objects because of a lack of sensation in what remains of the terminal part of the right index finger, such that when he picks up small objects such as screws, he opposes the thumb to the pulp of the middle finger. For the distal 2 cm of that index finger, he has very reduced sensation in that it is not protective to the extent that he cannot tell the difference between sharp and blunt or hot and cold, Mr Dobbin’s condition has reached maximum medical improvement.[47]
[47] Exhibit P3, PCB 52-53.
86The plaintiff accepted that Dr Stapleton had not recorded pins and needles.
87The plaintiff explained why rock climbing had been entirely lost to him as a pursuit by comparison to other of his recreational activities that he had remained able to participate in, although in a different or reduced manner. As he explained it, rock climbing requires the use of fingertips to grip which is not the case with his other activities and, for example, the gripping of a cricket bat does not expose his fingertip to the same sensation pain of pain that he experienced when he tried rock climbing.
88The effects from the injury on the plaintiff’s bowling was also explored by Ms Manning. The plaintiff is part of a league and he continues to bowl on a weekly basis. He says his skills have slipped and his performance is more inconsistent than was so before his injury. Ms Manning produced bowling records. They suggested that the plaintiff did not play for three weeks following his injury.[48] They also revealed that the plaintiff appeared not to have played for a couple weeks following his carpal tunnel surgery.
[48] Exhibit D5, DCB 65.
89Ms Manning suggested to the plaintiff that the bowling statistics also failed to identify a diminution in the plaintiff’s results. The plaintiff acknowledged that the statistics did not bear out his account that his results had diminished but nonetheless, the plaintiff said the injury has necessitated him changing the size of the ball and using a heavier weighted ball to assist his scoring capabilities. He agreed with Ms Manning that his bowling continued to provide him with a source of enjoyment and a social outlet.
90The plaintiff agreed that domestic day to day activities are carried out as a shared exercise with his partner and that he can cook, clean, launder, vacuum and change his son although with difficulty. He has no issues holding him or feeding him or bathing him. He performs home maintenance in terms of mowing the lawn, pruning, gardening and in terms of odd jobs he agreed he was “fully capable”.[49]
[49] T45, L27.
91He explained that he has trouble using mobile phone for pictures, such as taking “selfies” or group family photo.
92The plaintiff said that if he knocks his finger during sleep he can be woken. This is something that might occur once a week. He has difficulty returning to sleep because of the throbbing that an inadvertent knocking of the tip of the finger can cause.
Re-examination
93In re-examination the plaintiff explained that the tingling he felt in his hands and the accompanying pins and needles was different from the throbbing pain in his finger, which he described as a dull ache and one in which he can feel his heart beat through the finger and that he experiences whenever walking or moving.
94The plaintiff said he had foresworn stronger pain relieving medication because of a problematic past associated with addiction.
DEFENDANT’S FINAL ADDRESS
Assessing a permanent serious disfigurement – the defendant’s submissions as to paragraph (b)
95Ms Manning submitted that I should disregard the plaintiff’s evidence of how he perceives his scar and any psychological effects on him by way of his response to it, and that it should be judged on its own terms.
96Ms Manning argued that on a consideration of all the evidence, the plaintiff had failed to discharge his onus of satisfying the narrative test under the definition of “serious injury” whether under paragraph (a) or paragraph (b) of s325(2).
97Ms Manning submitted that when the fact of the plaintiff’s scar is considered by comparison with other cases in the range of possible impairments or losses, then the disfigurement claim under paragraph (b) should fail. Ms Manning contended that the disfigurement does not meet, when judged in comparative terms of the range of possible disfigurements and other impairments, the “very considerable” test.
98In Haden Engineering Pty Ltd v McKinnon,[50] Maxwell P set out various principles to which recourse is invariably had in an effort to assist in evaluating the “pain and suffering consequences” in a given set of circumstances. In particular, at paragraphs [14]-[15] under the heading “The disabling effect of pain”, the learned President said:
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained’.[51]
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.[52] What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.[53]
[50] (2010) 31 VR 1 (‘Haden’).
[51] Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [27].
[52] Reference was made to Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [47].
[53]Reference was again made to Dwyer v Calco Timbers Pty Ltd(No 2) [2008] VSCA 260, [25].
99In addressing Haden and the indicia therein discussed, Ms Manning submitted that the plaintiff does not satisfy them but, in any event, he does not rely on most of those identified by the Court, including mobility, cognitive functioning, capacity for self-care and self-management. Whilst “difficult” to manage his toileting, he has adapted and lives with it. There is limited evidence of a restriction in the performance of household and family duties. The loss of recreational activities appears to be confined to rock climbing. The interference to sleep is not substantial.
100In sum total, the defendant’s position may be characterised as one of that whilst the plaintiff’s injuries are not trivial, and they are permanent, they are not “serious”, and it would be erroneous to consider them “at least very considerable” and “more than merely significant or marked”.
The competing evaluation methodology
101Ms Manning relied on the TTB SMS Pty Ltd v Reading,[54] a decision that concerned a finger injury in a serious injury application and, by reference to it, Ms Manning contended that it reinforced the defendant’s submission that the plaintiff should not be regarded as having suffered a serious injury.
[54] [2020] VSCA 203 (‘Reading’).
PLAINTIFF’S FINAL ADDRESS
102Ms Donmez addressed the twin issues of loss of function referable to the consequences of the injury pursuant to paragraph (a) of the claim and disfigurement under paragraph (b). Ms Donmez submitted that the principles relevant to an application under limb (a) and/or limb (b) of the definition of serious injury appear to be:
(a) the plaintiff’s credit or reliability as a witness of truth;
(b) the injury having to be permanent;
(c) the location, size, and degree of obviousness of the scar (amputation) injury;
(d) the value judgement made by the judge, having regard to the objective characteristics of the injury, the Court’s observations of the injury, and the plaintiff’s subjective description of the injury together with the pain and difficulties associated with the injury; and
(e) the predicted life expectancy of the plaintiff, and the period in which they would have to live with the consequences of the injury.
103Ms Donmez submitted that the plaintiff was frank, forthright, and truthful. She characterised his injury as a permanent 2.5 centimetre loss of his right index finger of the dominant hand with the location and size of the injury obvious. The plaintiff is embarrassed by the injury. He thinks the injury is “disgusting to look at”.[55] The plaintiff is 38 years of age and will need to live with his injury and its consequences for the remainder of his life. Having regard to these matters as well as the extensive matters to which the plaintiff deposed in his affidavits, Ms Donmez submitted that the plaintiff has -
(a) a permanent serious impairment or loss of body function pursuant to paragraph (a) to his right index finger and/or right hand (dominant hand); and
(b) a permanent serious disfigurement pursuant to paragraph (b) to his right index finger and/or the right hand (dominant hand).
[55] T51, L17.
104Ms Donmez submitted that the plaintiff’s pain and suffering consequences, when judged by comparison with other cases, in the range of possible impairments or losses of body function or disfigurements, can fairly be described as being more than significant or marked, and at least very considerable.
105Ms Donmez submitted that the decision in Reading is not analogous on its facts to the circumstances encountered by the plaintiff and sought to distinguish the value to be gained from it, including on the basis that it was not a disfigurement case. Moreover, in Reading the plaintiff returned to work after four days; his injury involved the middle finger that was no longer causing him a problem at the time of hearing both of which are distinguishable from the plaintiff’s application. Although in Reading the plaintiff suffered from some clumsiness with his hand, he possessed a full capacity to care for himself and live independently. Ms Donmez pointed to the fact that plaintiff has suffered an amputation of part of the index finger of the dominant hand that is arguably functionally more important and physically more prominent than the ring and little fingers of the same hand.
Consideration of the evidence
106In my judgement, one must be careful in distilling too great an analysis from Reading’s case or in approaching a case for the grant of a serious injury certificate by way of competing tabulations from other decided cases. The Court of Appeal concluded that the facts as found by the trial judge did not reach the requisite level to justify a finding of a serious injury. That is as far as the decision travels. The Court of Appeal did not suggest that it was enunciating any new principle of law. The value of the decision is undoubtedly in the judgement brought to bear by the bench in assessing seriousness against a set of facts, and the guidance it can offer in like cases as to whether the narrative test for serious injury is satisfied. Nonetheless, and in deference to the competing submissions made as regards the decision by the parties, it is appropriate that I address the case in some greater detail.
Age
107In Reading, the plaintiff was 38 years of age at the time of injury. Mr Dobbin was 33. It is relevant to have some regard to the potentially long years of suffering a young plaintiff will likely encounter with a serious impairment.[56] On the other hand, an older plaintiff should not be penalised.
[56] Hawkins v DHL Express [2013] VSCA 26.
Fingers affected
108In Reading, the plaintiff had three fingers affected, namely a middle finger that was dislocated, the ring finger and the little finger was surgically repaired with metalware permanently inserted. Mr Dobbin has had only his right index finger affected, but it was by way of a surgical amputation.
Effect on work/employment
109Following his injury, Mr Reading was off work for four days and returned to work on modified duties. He had difficulty with some manual aspects of the work. He stopped work after six months due to a company re-structure. He subsequently commenced new employment at a ten-pin bowling centre where he became a full-time facilities manager for about seven years, and then returned to spray painting and supervisory work. He could paint for short periods with his right hand. A couple of years later he commenced another spray painting job as a leading hand.
110Mr Dobbin was off work for approximately three weeks and returned to light duties for four weeks before resuming normal duties.
Pain/other effects
111Mr Reading, experienced intermittent pain and cramping in the right hand, mainly in the little and ring fingers.[57] There was numbness, spasms, pins and needles in the affected fingers.[58] There was permanent curling of the affected fingers along with an inability to move them properly. There was no movement in the little finger. There was significant clawing and constructive shortening. There was reduced fine movement and strength in the right hand.[59]
[57] Reading [2020] VSCA 203, [13].
[58] Ibid [9].
[59] Ibid [15].
112Mr Dobbin has a constant sensation and a throbbing when his hand is engaged in any way such as walking. He experiences pain when any pressure is applied to the tip and a loss of sensation to altered temperature.
Current treatment
113Mr Reading was not receiving treatment. Mr Dobbin is not undertaking treatment which is explicable because of the consensus of medical opinion that he has achieved maximum recovery.
Medication
114Mr Reading was not in receipt of prescription medication and was taking over-the-counter medication once or twice weekly. Mr Dobbin, in a like way, is not in receipt of prescribed pain medication and takes up to 16 Panadol a week.
Personal care
115Mr Reading’s personal care was unaffected. Mr Dobbins personal care is affected by difficulties associated with toileting.
Dressing/self-grooming
116Mr Reading experienced difficulties with writing, tying shoelaces, holding cutlery, putting things in a pocket or a drawer.[60] These too, are like problems Mr Dobbin encounters and that also extends to his use of a pen to write and to be readily able to assist in the dressing needs of his young son. The acute way this currently presents itself will moderate over time as his son matures but, obviously, if other children come along, the plaintiff can be expected to again encounter such complications and difficulties with instances of pain. One can imagine as well, certain extra care Mr Dobbin will need to adopt in mucking up and engaging in game play with his son so as to protect the finger.
[60] Reading [2020] VSCA 203, [9].
Sporting/recreational
117Mr Reading lost his ability to play golf and water-ski. He was still able to fish but less frequently.[61] Although Mr Dobbin did not depose to any reactional or sporting pursuits prior to the accident that he has lost, other than rock climbing, nonetheless, he needs to be very much guarded in all of his activities. Although his prowess as a ten-pin bowler has not been evidently affected, he is compelled to use a larger and heavier ball to compensate for the effects of the injury.
[61] Reading [2020] VSCA 203, [9].
Nguyen v Natures’ Gift Australia Pty Ltd
118Ms Donmez placed reliance on the decision in Nguyen v Natures’ Gift Australia Pty Ltd,[62] in which the injury involved an amputation injury to the plaintiff’s finger and in which central issue was “range”. His Honour Judge Bowman highlighted the following matters as significant in the outcome of the application:
(a) the injury was to the plaintiff’s dominant hand;
(b) the absence of the finger affected all aspects of the plaintiff’s everyday life including social, domestic, and recreational activities;
(c) simple tasks were impacted, such as gripping small objects, using pens and pencils, or a knife;
(d) ongoing pain was felt in the injured finger, particularly when the tip of the finger came into contact with objects;
(e) three surgical procedures had been endured by the plaintiff;
(f) the plaintiff was truthful and stoic; and
(g) the plaintiff’s everyday work activities were impacted by pain and physical restriction, and certain occupations were no longer open to him.
[62] [2018] VCC 1960 (‘Nguyen’).
119Overall Judge Bowman found the injury had produced pain and suffering consequences which satisfied limb (a) of the definition statutory test. His Honour did not need to make a finding on whether the injury satisfied paragraph (b) of the definition of serious injury but, by way of obiter, nonetheless, his Honour thought had it called for a decision, the following matters were important:
(a) the loss of the finger was “quite evident”, upon viewing the plaintiff’s injury;
(b) embarrassment was felt by the plaintiff;
(c) the plaintiff was self-conscious about his finger; and this is something which the plaintiff will have to live with for the rest of his life, in social situations and as his children grow up… .”.
120Ms Manning, however, submitted that Nguyen is distinguishable on its facts from the position of the plaintiff due to the following differences:
(a) the finger affected;
(b) the treatment, medication and recovery involved;
(c) the impact on the plaintiff’s employment; and
(d) the effect on the plaintiff’s recreational pursuits.
121Mr Manning relied on the fact that Mr Nguyen's injury affected his right (dominant) middle finger. It was described as the major, longest and dominant finger, on the hand that he utilised most frequently. Judge Bowman placed great emphasis on the loss of the joint (just above the distal interphalangeal joint) on that particular finger. On inspection of the finger, the loss was quite evident and able to be seen from middle distance.
122Ms Manning submitted that although Mr Dobbin’s injury also resulted in amputation just above the distal interphalangeal joint, however, the loss to his right (dominant) index finger, is arguably less noticeable than the loss of the same joint on the middle, longest finger, suffered by Mr Nguyen.
123Mr Nguyen’s injury was complicated by graft failure, nail spike, recurrent cystic formation and infections. At the time of hearing, there was an ongoing risk of infection and the possibility of further fingertip breakdowns. In addition to the initial amputation, he required two further surgical procedures which were described as reconstructions complicated by a poor operative outcome. Although Mr Dobbin required three surgical procedures, Ms Manning submitted that his injury has achieved a level of stability.
124Ms Manning observed that the plaintiff’s first reference to pain relieving medication in the form of Panadol was deposed to in his third affidavit sworn the day prior to the hearing of the application. Although he did not depose to frequency or amount whereas in his oral evidence, he said that he took 15-16 Panadol per week, Ms Manning submitted the account is not corroborated in clinical records or medical reports.
125Although Mr Nguyen’s application was confined to pain and suffering, as is the case with Mr Dobbin, Ms Manning submitted that the consequential impact on Mr Nguyen’s occupational capacity was greater. Following the initial injury, Mr Nguyen required two to three months off work. After returning to work, he was required to regularly utilise his sick leave due to the consequences of his injury. In addition, by reason of his injury, he experienced difficulty with heavy manual instruments. He had difficulty completing his pre-injury work duties, received assistance from colleagues in performance of the same and also was unable to complete certain alternative duties to the extent that, at the time of the hearing, he was unemployed. Mr Dobbin returned to work within three weeks of injury on light duties and, after a further four weeks, resumed his normal duties. There is no evidence he required or received assistance from colleagues in the performance of his duties, nor that he utilised sick leave. Since his injury, he has not had a period of unemployment. To the contrary, he has received promotions in rank and transitioned in occupation without issue.
126Due to the consequences of his injury, Mr Nguyen ceased playing basketball with his children and was limited to playing badminton with them. He could no longer maintain his garden, with mowing lawns being a problem for him. He was no longer able use chopsticks, which Judge Bowman regarded as a culturally important and adverse consequence, because this had been his traditional manner of eating.
127Ms Manning contended that Mr Dobbin continues to lead a particularly active life and engage in activities that he was passionate about prior to injury, including but not limited to:
(a) ten-pin bowling weekly in a league;
(b) social cricket;
(c) social football (AFL);
(d) fishing;
(e) darts;
(f) pool;
(g) walking his dog (with his right hand) as part of his daily routine;
(h) use of his home.
128As to rock climbing, Ms Manning noted that Mr Dobbin accepted in cross-examination that he had not tried to engage in this activity for some years.
129Ms Manning submitted that Mr Dobbin retains a full ability to engage in domestic activities such as gardening and home maintenance, including painting.
MacDougall v Victorian Workcover Authority
130Ms Manning cited the decision of MacDougall v Victorian Workcover Authority.[63] However, Ms Donmez submitted that MacDougall’s case can be readily distinguished from the plaintiff’s case for reasons that include:
(a) the injury is different. It was a “crush injury” causing laceration and fracture, scarring, and deviation, of the left index finger;
(b) the injury was not to the dominant hand;
(c) pain was not present all of the time;
(d) the only pain relief was Panadol (over-the-counter medication), whereas, Mr Dobbin had expressed a concern that stronger pain relief could put him at a risk of relapse addiction;
(e) only recreational activities (namely, the ability to fully participate in sporting pursuits), were significantly impacted;
(f) the plaintiff was able to continue full-time work in his chosen occupation;
(g) the plaintiff had a full capacity to care for himself;
(h) the plaintiff had no cognitive defect; and
(i) the plaintiff’s sleep was not affected.
[63] [2021] VCC 1292 (‘MacDougall’).
Finding impairment
131I am satisfied that there is an impairment of the plaintiff’s right hand and such impairment is “permanent” within the meaning of the Act. Furthermore, I am satisfied that there is disfigurement to the plaintiff’s right hand, manifested by the shortened index finger involving the loss of the nail of that finger, and modest scarring, particularly around the donor site. So much is clear from observation.
132In my view, the critical issue is whether or not the impairment and/or disfigurement is “serious” within the meaning of the narrative test. In Ellis, the Court of Appeal (consisting of Osborn and Beach JJA) at paragraphs [57] to [59] said:
The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.[64]
Nevertheless the relevant assessment must be made objectively by the court. It is the judge’s opinion as to the seriousness of the impairment or loss which is determinative, not the opinion of the applicant or medical practitioners.[65]
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 …
[64] Reference was made to Humphries & Anor v Poljak [1992] 2 VR 129.
[65] Reference again was made to Humphries & Anor v Poljak [1992] 2 VR 129, 137.
133Of course, it is also important to always bear in mind that impairment is assessed by reference to the consequences of the injury rather than the injury.
134Also, in Ellis the Court of Appeal stated, at paragraph [52]:
… After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.
135I accept that Mr Dobbin’s amputation injury is to a finger of the hand which he has occasion to use quite considerably. Its functional use has, for all practical purposes, been lost and that its residual use is further diminished due to sensitivity at the tip, and is accompanied on occasions by a short sharp pain when accidentally coming into contact with another surface or object.
136Despite the loss of function associated with an otherwise full and unfettered use of the right index finger, it is fair to say that Mr Dobbin is able to work fully in his employment and is very much able to still undertake almost all of his normal pre-injury activities. There are a limited number of functions that he described that he is now required to execute differently both at work and at home, and this causes him an understandable degree of frustration. Consistent with authority, I see no reason why that frustration cannot sound as an element of pain and suffering consequence in terms of a loss of enjoyment of life and to which I may have regard in my assessment. In my opinion, I am entitled, when considering all of the evidence, to have regard to how the plaintiff says he feels as a consequence of the impositions and adaptations he has had to make that flow directly in consequence of the functional impairment to his right index finger and/or to the use of his right hand. In my view, that does not offend against established principles, and it does not elevate a mental type of response to fill the void of what might in some other case be assessed as a non-serious physical impairment. Rather, the recognition does no greater than inform the pain and suffering consequences of a physical injury. In other words, the ordinary sense of an individual’s reaction to the appearance of the physical injury and having regards to it does not elevate the same to a de facto importing of a psychological reaction to a non-psychological injury.
137The issue was addressed as it pertained to the effect on work in Ellis Management Services Pty Ltd v Taylor,[66] wherein the Court of Appeal stated:
As has repeatedly been held, the inability of a worker to engage in employment which he or she enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.[67]
[66] [2013] VSCA 326 (‘Ellis’).
[67] Ibid [35].
138This concept was enlarged upon by the Court of Appeal at paragraphs [43] to [44], when it was stated:
Whether it be the loss of pleasure in doing something one used to be able to do or frustration in being unable to do something one used to be able to do, and whether or not the relevant activity is work related, such loss of pleasure or feeling of frustration falls to be considered when assessing the pain and suffering consequences of a particular injury. Further, the loss of pleasure or feeling of frustration may be all the more serious if it is suffered in circumstances where the range of activities that a person may or may not be able to engage in but for his or her injury is more limited than it might be for a person with a different skill set.
(a) First, pain may in fact be experienced at work or while performing particular types of work.
(b) Secondly, the inability to perform certain work may be indicative of what injury has in fact been sustained by the worker.
(c) Thirdly, a worker might suffer a loss of enjoyment of life in being unable to perform work which he or she used to enjoy. Under this heading there may also be pain and suffering consequences in respect of any frustration of a worker at being unable to perform activity that he or she used to be able to perform.
139I have had regard to each of the additional and competing decisions referred to by the parties but ultimately they depend on their particular facts and findings. I note, for example, that although I accept the plaintiff has a justified concern about the use of string medication risking a relapse of addiction, the fact is that there is an absence of suggested need for the same by clinicians on whom the plaintiff has attended for care. I accept, for example, that the plaintiff can experience episodes of pain but that these are able to be moderated by over the counter medication. I do not regard the plaintiff’s account of interrupted sleep to be of that order that in combination with other matters relied on elevate the claim to the required level for the injury to be assessed as serious. Having regard to all of the evidence as part of my overall assessment, I consider that when the consequences of injury are taken together, the plaintiff does not satisfy the narrative test, in that the pain and suffering consequences for the impairment of the right hand are not, when judged by comparison with other cases in the range of possible impairments, that which may fairly be described as being “more than significant or marked” and as being “at least very considerable.”
Permanent disfigurement
140I am also not satisfied the plaintiff has discharged the burden of proof in establishing a serious injury under paragraph (b) of the definition. I am not satisfied that the plaintiff has established, as a matter of probability, satisfaction of the narrative test. Once again, and even making allowance for the subjective elements of the disfigurement, I am satisfied the plaintiff must fail on this aspect. Whilst undoubtedly there is a disfigurement, it must satisfy the requirement of being “serious” within the meaning of the Act. I have assessed the plaintiff’s disfigurement by having regard to the objective characteristics of the finger, my observations of it, and having considered all the evidence before me.[68] I also note that in Transport Accident Commission vGarcia,[69] the Court of Appeal said that in relation to the nature of a claim under (b), a set of written reasons would not necessarily dilate upon the matter at length or in detail and to the extent perhaps more likely warranted in a standard paragraph (a) case.
[68] See Judge KL Bourke in Naguib v VWA [2017] VCC 1710, [138].
[69] TAC v Garcia [2015] VSCA 225
141In determining whether the plaintiff’s permanent disfigurement is a serious injury, I have had regard to its location (it is apparent and in an area that is obvious).
142I had the opportunity of viewing the finger closely. Overall, putting aside the loss of length, its appearance is smooth, although there is a faint scar. Otherwise, the finger reveals very little by way of visual anomaly. I am not satisfied that the plaintiff has a permanent serious disfigurement under paragraph (b) for serious injury. I have made this determination by having regard to the objective characteristics of the disfigurement, the observations I made of it, and the plaintiff’s description of it, together with his account of pain and difficulties associated herewith. There is of course, in my process of decision-making, an aspect that represents a value judgement in determining it in the range required of me under the Act.
Conclusion
143Having approached the consideration of the application from the perspective of the guidance afforded by relevant authorities and having assessed and weighed all of the evidence, I am not satisfied that the plaintiff has proved on the relevant standard of proof that he suffers a serious injury for the purposes of and within the meaning of paragraph (a) or paragraph (b) of the definition of serious injury.
144For the reasons expressed, the plaintiff’s application is refused. I direct that the parties file a proposed minute of orders to give effect to this judgment within seven days, failing which I will list the matter for mention.
3
15
0