Edmenson v Victoria WorkCover Authority
[2017] VCC 153
•3 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00523
| DEAN EDMENSON | Plaintiff |
| v | |
| VICTORIA WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 February 2017 | |
DATE OF JUDGMENT: | 3 March 2017 | |
CASE MAY BE CITED AS: | Edmenson v Victoria WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 153 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the right little finger – disfigurement – pain and suffering only – range case
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Ingram v Ingram & Anor [1996] 2 VR 435
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Coote | Robinson Gill |
| For the Defendant | Mr C O’Sullivan | Russell Kennedy |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with Sascha Design Pty Ltd (“the employer”) on 8 August 2011 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application primarily pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning a permanent serious impairment or loss of a body function. There was also an application pursuant to clause (b) for permanent serious disfigurement.
4 The relevant body function is the right little finger.
5 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, “as being at least very considerable and more than significant or marked”.
6 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
7 The plaintiff relied upon two affidavits and gave viva voce evidence. I viewed his right little finger during that time. The plaintiff also relied on an affidavit sworn by his wife, Joanne, on 24 January 2015. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
8 The plaintiff is right hand dominant. He is presently aged thirty-eight, having been born in England in November 1978. He is married with a nine-month old baby.
9 The plaintiff and his wife came to Australia in December 2010. His employment history predominantly is in the painting and decorating field and he has always worked as a DJ.
10 Since April 2014, the plaintiff has been employed as a painter and maintenance man by BlueCross Nursing Services (“BlueCross”).
11 In December 2010, the plaintiff commenced work with the employer as a painter and decorator, working full time.
12 On the said date, while sanding an eave at a residential property, the plaintiff injured his right little finger when it became caught in a power sander. In pulling his finger out of the machine, he lost the tip thereof (“the incident”).
13 The plaintiff was taken by a colleague to Knox Private Hospital, where Mr Crock, plastic and reconstructive surgeon, operated on his hand that day. A skin graft was required, and the plaintiff’s right ring and little finger were secured together by a cross flap (“the first operation”). He was discharged later that day.
14 On 22 August 2011, the plaintiff had a second operation to separate his little finger from his ring finger.
15 About three weeks after the first operation, the plaintiff commenced hand therapy with Diana Francis, whom he attended until November 2011.
16 The plaintiff returned to work with the employer in October 2011 on light duties and reduced hours, and gradually returned to his pre-injury duties and hours. He resigned from that employment in about December 2011 and started subcontracting with other businesses
17 The plaintiff had a third surgical procedure performed by Mr Crock on 18 June 2013, when a piece of nail bed from his right little finger was removed. There was two weeks of hand surgery thereafter.
18 In February 2014, when he last saw Mr Crock, the plaintiff denied he told him he was pain free. They were Mr Crock’s words. His finger has never completely healed. The plaintiff disagreed that the “aesthetics” were then quite good, as Mr Crock described. He did not like his finger at all, and he thought it was hideous.[3]
[3]Transcript (“T”) 14
19 In April 2014, the plaintiff found employment with BlueCross as a maintenance officer, working full time, attending to general maintenance.[4] He was employed as a painter, but also his duties involve maintenance work.[5]
[4]T5
[5]T10
20 As at September 2015, when he swore his first affidavit, the plaintiff continued to experience intermittent pain in the tip of his right little finger, the intensity of which depended on his activity.
21 Sometimes, the plaintiff experienced an electric-shock type sensation and he also suffered from cramps in his finger, which would start aching spontaneously. Towards the end of the day, his pain was worse or if he had been busy with his hands at work. Repetitive work, in particular, aggravated his symptoms.
22 The pain was also worse in cold weather and the plaintiff experienced a strong pain if he knocked the scar site. The finger-tip was sensitive and it felt tender underneath the skin. The plaintiff had reduced sensation in the tip of his little finger and it was a strange and unsettling feeling when he touched the area.
23 The look of the little finger repulsed him. It looked freakish and weird, and he found himself trying to hide his right hand wherever possible. He protected the finger by tucking it behind his ring finger, and he also tried to obstruct other people’s view of it as he did not like them asking about it. He preferred not to shake hands.
24 The plaintiff had difficulty picking things up and continued to drop tools. He was then having trouble getting used to the altered sensation of his hand. Around the home, he had modified how he did things, and was more reliant on his left hand.
25 The plaintiff’s sleep was affected by his injury, waking about twice a night. He did not know why he woke, but that was not the case before the incident.
26 Since the incident, the plaintiff had also experienced anxiety, and was then taking Fluoxetine because of panic attacks. He had problems with anxiety in the past and sought treatment including taking Fluoxetine, but found it more difficult to manage since the incident.[6]
[6]T16
27 The plaintiff’s injury had affected his ability to DJ. That role required the use of every finger and was quick fire work. He had to modify this activity to cope with his finger injury.
28 Since the incident, the plaintiff had lost a lot of confidence and was then very hesitant. At work, he was particularly cautious and careful handling tools. After the incident, when he was subcontracting as a painter and decorator, his employers would tell him to get on with his work as he was often hesitant.
29 In a supplementary affidavit sworn on 21 February 2017, the plaintiff confirmed his earlier complaints. He experiences a tired, aching pain which is intermittent, and comes on a couple of times a day. He tries to rest his hand when the pain comes on and that helps the pain subside after about twenty minutes. If he pushes through it, it becomes more painful and the pain lasts longer.
30 The pain seems to have spread, and it has travelled up the plaintiff’s little finger towards the first joint. If he has a busy day at work it is worse. The spread and intensity of pain depends on his activity.
31 Sanding and brush work aggravate the plaintiff’s pain, and he continues to experience a strong pain if he knocks the tip of his little finger or the area around the first joint.
32 About weekly, on average, the plaintiff experiences an electric-shock type sensation around where the nail bed used to be. It is a spontaneous electric-shock type feeling. Sensation has not returned to the injury site and it continues to ache in the cold weather.
33 The plaintiff continues with BlueCross and remains vigilant at work because he is worried about hurting himself. He still drops tools daily, although not constantly, and is conscious of his ring and little fingers. He guards his little finger by tucking it behind his ring finger.[7]
[7]T11
34 The plaintiff drives from home in Rosanna to work in various suburbs over Melbourne, at times a fairly lengthy commute.[8]
[8]T11
35 Maintenance work at BlueCross involves small carpentry tasks such as dismantling a bed. It is not trade-based or what the plaintiff is qualified for. Whether it is painting or maintenance work varies. There could be three weeks of painting and then one week of maintenance, depending on what needs to be done.[9]
[9]T12
36 The plaintiff continues to hate the look of his hand, and the little finger feels freaky and does not look right. The ring finger is also warped and distorted and the scarring on it never fully went down. He is quite sensitive about the appearance of his hand, as it looks strange, and he did not think it would be like this.
37 The plaintiff feels that people stare at his finger. He remains reluctant to shake hands and continues to try and keep his little finger and ring fingers out of sight, and keeps both of them tucked in.
38 The plaintiff has just lost confidence. He is self-conscious about his finger even though he did not expect he would have had that response. He does not want people to see it.[10]
[10]T8
39 The plaintiff’s sleep is still affected by his hand injury. Although he does not have night terrors, his sleep is not what it used to be and has never been the same since the incident. It has definitely been more broken since. He is sometimes woken up by pain, but he is not completely sure what wakes him.[11] The plaintiff agreed he could not pinpoint what was causing him sleep problems since the incident.
[11]T8
40 While he has done some DJing since the incident, the plaintiff has lost confidence because of his reduced dexterity and he has taken on a different direction by setting up a record label instead.
41 In the last nine months or so, the plaintiff started his own digital record label trying to find new talent. He has released one artist to date. The music is published through friends in the industry. This is not a hands-on job.[12]
[12]T15
42 The plaintiff has not taken Fluoxetine for three weeks and was proud he had weaned himself off it, because he worried about addiction. He had learnt enough about anxiety to be able to cope without medication. Anxiety had become a significant issue after he hurt his hand, as he was worried about losing his job.
43 The pain in the plaintiff’s hand can trigger anxiety. He is more self-aware and feels that his senses are heightened. He still suffers panic attacks about fortnightly on average at night.
44 The plaintiff agreed he had stopped taking Fluoxetine in recent times because there had been an improvement in his anxiety.[13]
[13]T16
45 The plaintiff explained that during the day the full sensation in the finger is not there. It constantly feels like his finger is numb like it has been knocked. Just sitting, the pain can come on. His finger can definitely ache in the scar area and down to the knuckle. He indicated the scar area was over where the nail would have been and just a little bit further down, stopping on the knuckle.
46 If knocked, the plaintiff experiences increased pain more so than would be the case with another finger. He gets electric shocks, just like a cramp, that can come on for no reason, in the same area, up the first joint.[14]
[14]T7
47 The plaintiff can experience pain even if he does not use his finger. The electric shock pain can just come on in the night, or sitting at home. It can happen a couple of times a month, approximately. The sharp pain lasts for about 20 minutes, then goes away.[15]
[15]T12
48 The plaintiff does not have any particular problem with his injured finger caring for his baby daughter and picking her up.[16]
[16]T9
Lay evidence
49 The plaintiff’s wife, Joanne, swore an affidavit on 17 January 2015.
50 Joanne met the plaintiff in about 2000, but they only started dating in 2005, and married in around 2014. They have a nine-month old daughter.
51 Joanne could recall, immediately after the incident, the plaintiff was in a great deal of pain and discomfort, and she often saw him in distress if he knocked his hand.
52 The plaintiff had told her that the pain had not been as severe since further surgery. She noticed he still avoids using his finger. She sees him on the computer using a mouse or keyboard and he keeps his right little finger elevated. When he is eating, he also avoids using his baby finger, and looks like a proper English gentleman drinking tea.
53 The most striking change in the plaintiff since the incident is his anxiety. She does not recall him being particularly anxious before the incident but, since then, has noticed a huge increase. One day when she asked him to go to the beach, he almost had a panic attack. As a nurse, she likes talking about health issues and when they are out with a group of people, she sometimes asks him to show his hand so that people can see it. He gets very upset and angry with her when that occurs.
54 Joanne has noticed the plaintiff hides his hand; for example when walking, his hands are often close to his pockets, or in his pockets and when eating at a table, he sits a bit further back.
The Plaintiff’s medical evidence
55 Mr Crock, plastic and reconstructive surgeon, carried out a debridement and reconstruction of the nail bed with a d-epithelialized cross finger flap to the right little finger on 8 August 2011.
56 On 22 August 2012, Mr Crock performed a division of cross finger flap-debride fingers right hand, and on 18 June 2013, he performed an excision of the nail spicule-right little finger.
57 In his report of 2 February 2014, Mr Crock advised that the plaintiff had made a full recovery from his injury and had a zero percentile person impairment due to his injury, with a full range of pain-free movement and minimal scarring.
58 Mr Crock referred the plaintiff to hand therapist Diana Francis, on 29 August 2011, three weeks’ post incident. He then commenced an active exercise program.
59 Ms Francis reported that the plaintiff progressed well with therapy and two months post surgery, he had obtained a good range of motion of both his ring and little fingers. He had obtained good gross strength for two months post surgery, and had a gross grip strength of 26 kilograms force for the right dominant hand and 33 kilograms on the left.
60 When seen on 23 November 2011, the plaintiff had continued to make progress with his range of motion. He reported an unusual sensation on the dorsum of the little finger over the middle and proximal phalanx regions.
61 On assessment, the plaintiff was unable to detect light touch on the donor site of the right finger and the region of the middle phalanx. Silicone gel was used to reduce the scarring on his fingers.
62 When seen again on 4 December 2011, there was a reduction in range of motion compared to the previous measurements. Grip strength had now increased to 32 kilograms on the right and 38 kilograms on the left. The plaintiff was then asked to re attend for therapy in six weeks, but was not seen until July 2013.
63 On 18 June 2013, the plaintiff had further surgery to remove a nail spicule. On review on 2 July 2013, he was moving very well and almost obtained full DIP joint flexion. He was encouraged to continue with his exercise program for his movement and strengthening, and Ms Francis advised him she would be happy to see him again if he had ongoing issues.
64 Ms Francis noted the plaintiff obtained good progress throughout his short period of therapy. Her prognosis was that he would be able to return to normal daily function and have few difficulties with his fingers. She thought, at that stage, his finger and hand should have stabilised, and there was little likelihood of it deteriorating or continuing to improve to any significant extent.
65 Ms Francis then believed the plaintiff may be partially incapacitated from his injury, but he should be able to return to future employment and daily living with minimal difficulty. She did not believe there should be any major compromising of the plaintiff’s personal or recreational pursuits. Further, her notes of his reports of his injury and her treatment did not indicate any compromise of those activities to a significant extent.
Medico-legal evidence
66 Mr John Anstee, plastic and reconstructive surgeon, examined the plaintiff on behalf of QBE in November 2014.
67 The plaintiff then complained that he spared the right little finger and it was not normally in his power grip. He was concerned by its appearance, and the scar annoyed him.
68 On examination, Mr Anstee noted the nail and nail bed had been removed from the right little finger. There was a flap measuring 20 millimetres by 10 millimetres on the dorsum of the distal phalanx of the finger. There was a 25 millimetre by 20 millimetre area of scarring over the dorsum of the intermediate phalanx of the right ring finger.
69 Mr Anstee found reduction in the range of movement of the right ring and right little finger. He noted sensation over the palmar surface of both fingers was normal.
70 The plaintiff told Mr Anstee that any right-handed task had been made slightly more difficult by virtue of his injury. Mr Anstee noted that the ring and little fingers were not quite as flexible as normal digits. He considered there was a very slight increase in the likelihood of injury or harm to those fingers in occupational and daily living activities.
71 Mr Anstee concluded the plaintiff had a three per cent whole person impairment due to abnormal motion in the ring and little fingers, and a similar impairment due to the scar and nail loss.
72 By letter dated 24 April 2015, the plaintiff was advised by QBE that the Medical Panel had reviewed his claim and determined his combined physical whole person impairment was two per cent. On that basis, he was not entitled to an Impairment Benefit (one per cent for each of musculoskeletal impairment and scarring).
The Defendant’s medical evidence
73 The defendant tendered the operation notes from the three surgical procedures carried out by Mr Crock.
74 By letter dated 17 May 2013, Mr Crock advised Dr Brueton of Southern Health at Monash, that the plaintiff had come back for checking of his right little finger that had been reconstructed with a de-epithelialized cross finger flap.
75 Mr Crock advised that the plaintiff had made an exceptional recovery and now had a full range of movement with normal sensation on his fingertip. The finger did not feel normal, but it was fully functional, which was most satisfying after such a nasty injury.
76 Mr Crock advised, the only thing that really annoyed the plaintiff was the leading edge of the scar where the cross finger flap came from, which was a little ridge along his finger, which occasionally irritated him and caught on things.
77 Mr Crock suggested that could be fixed with a W-plasty or a series of Z-plasties, so he left the plaintiff with an open ended appointment to come back if he decided he wanted this minor revisionary procedure.
78 Mr Crock also advised that the plaintiff had a spicule of nail growing out of the little finger which was annoying him, although he managed that by just trimming it whenever it grew. If he forgot to trim it, it caught on things and caused him some discomfort. Mr Crock suggested, if the plaintiff would like those issues addressed, that should be done before the finalisation of his WorkCover Claim.
79 Mr Crock again wrote to Dr Brueton on 4 February 2014, advising that the plaintiff had come in that day and had completed his medico-legal report.
80 Mr Crock reported that the plaintiff had actually done really well and had a full range of pain-free movement back in his finger, and even the aesthetics of his finger was very satisfactory.
Overview
81 There is no dispute the plaintiff suffered a traumatic loss of the nail bed and laceration injury to the dorsum of the right little finger in the incident.
82 This is a classic “range case” where the issue for determination is whether the consequences of this impairment constitute a loss of body function that is serious pursuant to clause (a) and whether the consequences of any disfigurement are serious pursuant to clause (b).[17]
[17]T3
83 This was not a case where the plaintiff’s credit was in issue. I accept that he gave evidence in a truthful straightforward manner and did not exaggerate or embellish his symptoms or complaints.
84 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[18]
[18](2010) 31 VR 1 at paragraph [11]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
· (a) what the plaintiff says about the pain (both in court and to doctors);
·(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
·(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
·(d) what the objective evidence shows about the disabling effect of the pain.”
85 Counsel for the plaintiff submitted that, in terms of consequences, there were three operations over twelve months. The plaintiff has ongoing daily pain, not described as constant, but it includes electric shock sensation, cramps, and aching in the finger.
86 There is also reduced and altered sensation in the little finger, difficulty picking and holding things, particularly in the context the plaintiff’s job as a painter and decorator and now in music production. [19]
[19]T22
87 There is little detail in the limited medical material as to what the plaintiff says about the pain to doctors, the last examination being for medico legal purposes in November 2014 by Mr Anstee.
88 In his brief report in early 2014, Mr Crock did not record any description by the plaintiff of his condition as at the last examination, simply stating that the plaintiff had made a full recovery. There was a full range of pain free movement and minimal scarring. He reported to Dr Brueton in similar terms.
89 When last seen by Ms Francis in July 2013 following the third surgery, she noted the plaintiff was moving very well and almost obtained full DIP joint flexion. She then thought the injury should have stabilised three months post surgery and that the plaintiff should be able to return to future employment and daily living with minimal difficulty.
90 When seen by Mr Anstee in November 2014, the plaintiff then complained of sparing the finger, as well as it not normally being in his power grip. He was concerned by its appearance. The plaintiff told him that any right handed task had been made slightly more difficult by virtue of the injury.
91 Whilst finding a reduced range of movement and scarring in the ring and little finger, Mr Anstee commented that the fingers were not as flexible as normal digits. He thought there was a very slight increase in the likelihood of injury or harm to those fingers in occupational and daily living activities.
92 Having undergone three operations, the plaintiff last had treatment with the hand therapy following the third surgery. He has not required painkillers since that time and no further treatment has been suggested.
Work
93 Counsel for the plaintiff submitted the plaintiff was somewhat of a stoic getting back to normal duties after surgery. He had made the best of a bad situation and did not exaggerate the symptoms or consequences and had got on with things.
94 As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd (No 2),[20] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[20][2008] VSCA 260 at paragraph [4]
95 Further, the plaintiff is still relatively young, aged only 38, and is going to have to live with the disfigurement and consequences of his finger injury for the rest of his life.[21]
[21]Stijepic v One Force Group Australia Pty Ltd& Anor [2009] VSCA 181
96 It was submitted the plaintiff continues to have problems with his grip whilst working in maintenance at Blue Cross, at times dropping hand tools. He has difficulty with sanding and brush work and repetitive work involving his right hand. Whilst there has not been a specific loss of enjoyment of work, the plaintiff is extra-vigilant about his hand whilst at work.[22]
[22]T23
97 In my view, these work restrictions, whilst a daily issue for the plaintiff, are not at the higher end of the range of complaints.
98 The plaintiff has been able to work full time in normal duties both as a subcontractor and in the last three years with Blue Cross as a maintenance man/painter without the need for time off work or any medical restrictions being placed on his duties.
99 This is not a case where the plaintiff’s career or vocation has been lost to him or where he has been forced to seek alternative employment as a result of his injury. It is not claimed that there has been any disruption to his career path as a result of his finger injury.[23]
[23]T17
100 Whilst it is not a checklist, in Haden Engineering Pty Ltd v McKinnon,[24] Maxwell P set out a number of factors which will typically be involved in a consideration of the extent of pain and suffering.
[24](supra) at paragraph [16]
101 It was submitted by counsel for the defendant that on a close analysis, the plaintiff was not “ticking many of the boxes”.[25]
[25]T18
102 I accept that not much weight can be placed on the plaintiff’s complaint of sleep problems post incident – waking twice a night – because he does not really know what is the cause of this problem.[26]
[26]T18
103 Evidence about any problems with mobility was limited to the plaintiff’s complaint of sometimes dropping tools at work.[27]
[27]T18
104 There is no effect on the plaintiff’s cognitive function either by pain or because of the effects of painkilling medication, as the plaintiff has not required medication for some years.[28]
[28]T18
105 There is no evidence of any effect on the plaintiff’s ability to self-care and self manage. Nor is there any evidence that the plaintiff has any particular difficulties in carrying out household tasks other than being more reliant on his left hand.
106 The plaintiff does not claim any interference with his intimate life. He has been able to start a family, and he confirmed there are no issues in his role as a new father.[29]
[29]T19
107 The plaintiff’s wife deposed that the most striking consequence of the finger injury was his anxiety.
108 Whilst the plaintiff has had to modify the way he uses his right hand as a DJ, he is still able to perform that role.[30] This is not a case where a passion or interest enjoyed before injury is no longer open to him.[31]
[30]T22
[31]T19
109 The plaintiff has been able to resume skateboarding and surfing, as Mr Crock noted in 2014, and there is no suggestion of any interference with these or other recreational or sporting pursuits.[32]
[32]T19
110 Despite the plaintiff’s evidence of ongoing concern with the appearance of his finger and some restrictions, Mr Crock painted a very positive picture in terms of prognosis, as did Ms Francis. The most recent examination by Mr Anstee in late 2014 was in similar terms, although he did find some restriction of movement of the ring and little finger.
111 Taking into account all the evidence, I am not satisfied any impairment of the right little finger meets the high statutory test of “more than significant or marked”.
Disfigurement – clause (b)
112 Counsel for the plaintiff conceded that in an application under this head, psychiatric factors had to be excluded. However, it was submitted there must be built into a consideration of this issue, the plaintiff’s reaction to the disfigurement/scarring and the location thereof.[33]
[33]T22
113 It was submitted that being on his right dominant hand, the plaintiff’s lack of confidence was amplified by the fact the injury was “front and centre every day for him”.[34] Every time he used his hand to sign a cheque or shook someone’s hand, he was faced with the disfigurement on his right hand. As a result, he tended to hide it from other people’s view. The fact it was his dominant hand was a relevant consideration.
[34]T22
114 The plaintiff has lost about half an inch of his finger, which was not insignificant on his right hand. It was submitted that it is incredibly obvious to the world at large when he goes out.[35]
[35]T23
115 The plaintiff himself described the finger as hideous and did not accept that the aesthetics were very satisfactory, as Mr Crock described on the last visit in February 2014.
116 Whilst counsel for the plaintiff accepted that the plaintiff disliked how his finger looked, and that it was unsightly and he was somewhat embarrassed by it, there was only a small part of the finger missing, not the whole finger. Further, it was submitted there was minimal scarring to the lower end of the range, not being overly significant in type or quality.[36]
[36]T20
117 I viewed the plaintiff’s right little finger. The finger nail is missing and there is a flap of skin over the top of the finger. The finger is about half an inch shorter than his left little finger. During surgery, the plaintiff‘s fingerprint has been stretched over the nail site.
118 In my opinion, the plaintiff appears to have made a good recovery cosmetically from the incident and the three subsequent operations. The present scarring is not ugly. It is faint and not raised. There is no noticeable discolouration in scar site either on the little or ring finger. Whilst it was obvious the nail was missing, the loss of half an inch of the finger only really became obvious when compared to the left.
119 As Callaway JA stated in Ingram v Ingram & Anor[37] at 438:
“… 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.”
[37][1996] 2 VR 435
120 Taking into account all the evidence, the plaintiff has made a very good recovery from a very nasty and painful injury to his right little finger in terms of function and also appearance.
121 In those circumstances, I am not satisfied, as at the date of hearing, the plaintiff’s impairment meets the high statutory test of “serious” in relation to clause (a) or (b).
122 Accordingly, the plaintiff’s applications are dismissed.
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