Henderson v Victorian WorkCover Authority
[2023] VCC 2133
•4 October 2023; Delivered ex tempore
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-01198
| CLIFFORD JOHN HENDERSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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| JUDGE: | HIS HONOUR JUDGE FRAATZ |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 October 2023 |
| DATE OF JUDGMENT: | 4 October 2023; Delivered ex tempore |
| CASE MAY BE CITED AS: | Henderson v Victorian WorkCover Authority |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 2133 |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment of the left thumb – pain and suffering – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s335
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Dobbin v VWA [2022] VCC 2173; Schrantz v UBC Commercial Group Pty Ltd [2023] VCC 967; Abbas v TAC [2015] VSCA 2017; Porto v Design Line Cabinets Pty Ltd (Deregistered) & VWA [2012] VCC 1645; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment:Leave granted to the plaintiff to commence proceedings for damages at common law for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti KC with Mr S J Carson | Arnold Thomas & Becker |
| For the Defendant | Ms K M Manning | Hall & Wilcox |
HIS HONOUR:
1On 1 March 2021, the plaintiff, Clifford Henderson, injured his left thumb during the course of his employment with Dynamic Staffing Solutions Pty Ltd as a boilermaker/welder at “Otter Fencing” in Dandenong South.
2Whilst undertaking his normal duties, Mr Henderson was grinding a metal bar using a bench-mounted grinder when the left thumb of his glove contacted the grinding wheel, dragging his thumb into the gap between the wheel and the body of the grinder. The incident resulted in the debridement of the tip of his left thumb, the loss of the bony tuft to the phalanx of the left thumb and soft-tissue loss. He was forty-two years old at the time of the injury.
3Mr Henderson was treated at the Valley Hospital, where he underwent emergency surgery performed by Mr Peter Maloney, hand surgeon, to remove foreign material (from the grinder) and necrotic tissue from the plaintiff’s thumb. A “Moberg” flap was created, which, in combination with a full-thickness skin graft, covered the proximal 1 x 3-centimetre defect from where the skin and deeper tissues of the thumb had been lost.[1]
[1] Report of Mr Peter Maloney dated 28 September 2021, Amended Plaintiff’s Court Book (“PCB”) 18
4Approximately one week later, Mr Henderson needed treatment for an infection in the wound, which was treated with antibiotics and daily dressings for a period.
5He required hand therapy on two occasions, and performed exercises at home to improve the dexterity, flexibility and feeling in his left thumb.
6Ultimately, Mr Henderson has been left with a significant loss of dexterity, deformity and a weaker grip in his left hand.
7Mr Henderson seeks leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) under paragraph (a) of the relevant definition of “serious injury” for pain and suffering consequences, being for the permanent serious impairment or loss of a body function, being his left hand.
Legal principles
8The relevant legal principles and applications of this type are well‑known and not in dispute.
9Mr Henderson bears the onus of demonstrating his impairment and/or disfigurement is permanent, and that the consequences are “serious”.
10He must establish that by reference to the consequences to him with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being “more than significant or marked” and as being “at least very considerable” in accordance with the narrative tests set out in s325(2)(b) and (c) of the Act.
11The consequences of injury for a particular worker begin with findings of fact. Assessment of whether those consequences, in terms of impairment, satisfy the narrative test is largely a question of impression and value judgment.
12I will apply the meaning of “serious injury” by reference to the well‑known passage in Humphries & Anor v Poljak:[2]
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[3]
[2] [1992] 2 VR 129
[3] Ibid at 140
The issues
13The defendant, the Victorian WorkCover Authority, accepts that on 1 March 2021, Mr Henderson sustained an injury to his left thumb arising out of and in the course of his employment. There is no substantial contest on the medical evidence in this application and there are no credit issues. Accordingly, this is a “range case”.
The evidence
14As is usual in applications of this type, in addition to the plaintiff’s three affidavits sworn in support of his application,[4] the parties tendered various medical material and other documents.
[4]Affidavit of Mr Clifford Henderson sworn 14 October 2022 (“the plaintiff’s first affidavit”); affidavit of Mr Clifford Henderson sworn 20 September 2023 (“the plaintiff’s second affidavit”; affidavit of Mr Clifford Henderson sworn 2 October 2023 (“the plaintiff’s third affidavit”), respectively
15Photographs of Mr Henderson’s left thumb confirm the presence of scarring and deformity consistent with his evidence of the functional restrictions identified by him in his affidavits.[5]
[5] Plaintiff’s Amended Court Book (“PCB”) 55-64
16An x‑ray[6] taken on the day of the injury in the context of the partial amputation of his left thumb, displayed a complex fracture through the tuft of the distal phalanx with the displaced main fragment measuring 11 x 5 millimetres, as well as several smaller fragments within the soft tissues and linear foreign bodies demonstrated.
[6] PCB 68
17Following his initial surgery, Mr Henderson managed his pain with Endone as prescribed by his GP.
18He commenced hand therapy and undertook home‑based exercises which improved the range of motion in his thumb. After three months he was able to return to work on light duties, progressing to full‑time hours and overtime, in his previous role as a boilermaker.
19Mr Henderson was guided by his surgeon, Mr Maloney’s advice. He attended Mr Maloney on approximately five occasions, and after his wound had healed and his range of motion in the thumb returned, Mr Henderson was provided with a work certificate for full clearance to commence work on 20 April 2021.
20Mr Maloney told the plaintiff that the feeling in his thumb would come back after a year or so, but this has not occurred in the top half of his thumb. The plaintiff has not seen Mr Maloney since April 2021. At that time, Mr Maloney’s opinion was that:[7]
“… there is bound to be some sensory or sensitivity issues in the flap, but as I have not performed a long‑term follow‑up, I cannot confirm or deny this.”
[7] PCB 24, also see Mr Maloney’s reports at PCB 17 and PCB 22
21The plaintiff was examined, at the request of the defendant, by Dr Darrell Nam, plastic and reconstructive surgeon, on 31 August 2022. I substantially rely on Dr Nam’s opinion as being the only medico‑legal doctor who has physically examined the plaintiff in the context of his partial amputation of the tip of his left thumb.
22Dr Nam recorded a history of complaints of intermittent pain in the plaintiff’s thumb, loss of feeling, loss of dexterity and cold tolerance:[8]
“Mr Henderson has resumed his normal occupation but there are limitations in what he can perform. The loss of feeling in his thumb has prevented him from carrying out many duties in his normal workday including … fine welding (TIG welding) and … [performing] fine manipulative tasks.”
[8] Defendant’s Court Book (“DCB”) 11-20
23I pause to interpolate that Mr Nam appears to accept the history provided to him. He goes on to say:
“Mr Henderson has mechanical related hobbies. He experiences difficulties with fine manipulation.”
24Upon clinical examination, he noted:
“… a loss of length of the tip of the left thumb and loss of embodiment of the pulp with beaking of the nail.
There are longitudinal scars at each side of his thumb about 3-4cm long, bending to the mid proximal phalangeal region. At the base of this level, there is a full-thickness skin graft which is indistinct that has been taken from his left hypothenar eminence.
The flap of skin used to cover the defect has lost discrete sensory function and there is partial loss of sensation equivalent to 50% of the length of his thumb.
There is full range of movement of the distal interphalangeal joint and the metacarpophalangeal joint.”[9]
[9] DCB 13
25In his opinion, the diagnosis is partial amputation of the tip of the left thumb and flap repair, and that Mr Henderson continues to suffer from this injury and has an impairment of his left thumb. His clinical presentation at treatment was consistent with the workplace accident as described.
26Mr Nam went on to perform a whole person impairment evaluation of the upper extremity which is not a relevant consideration on this application. Nevertheless, his findings as to the level of impairment to the hand, in the context of an injury to the thumb, are significant.
27Mr Nam noted that there is about a 30 per cent loss of the length of his thumb, and the movements of the interphalangeal joints are normal. There is sensory loss of the tip of his thumb over the area where a flap repair has been performed. This represents about 50 per cent of the length of his thumb and there is partial loss of sensation. This equals 13 per cent loss of sensory function. The loss of function of his thumb is 43 per cent and this equates to a hand impairment of 17 per cent.
28Associate Professor Felix Behan, plastic and reconstructive surgeon, examined the plaintiff at the request of his solicitors via Zoom on 10 July 2023. Following his examination and history, he made findings in relation to the industrial aspects and financial loss suffered by Mr Henderson. He says as follows:[10]
“The special form of welding TIG welding which is Tungsten Inert Gas means that he has foregone a certain wage income and this financial loss of a weekly income reduction is the result of the industrial accident. It should be noted that he is still working for the same firm but I should point out that his attitude about returning to work with Dynamic Recruitment reflects his positive attitude for ongoing employment which is a strong personal characteristic. Besides the restrictions of the use of the TIG welding wire, the patient finds he cannot mark out, as a boilermaker any alignments that need measurement or pencil delineation on steel.”
[10] PCB 33
29Associate Professor Behan also commented as follows:[11]
“… The pain factor is not severe enough to warrant heavy dose analgesics, it is just a local factor when the nail separates in the subungual line if it inadvertently gets caught on something. … ."
[11] PCB 34
30In his opinion, the diagnosis is of a subungual de‑tipping injury of the left thumb from a grinder. He made findings in relation to the impairment as well:[12]
“The Nam report talks about 50% loss of length of the thumb with sensory deficiency and regards there is loss of function of the thumb of 40% equating to a 16% hand impairment or an 8% WPI. I have no reason to adjust my impairment calculation.”
[12] PCB 44
31It is apparent he accepts Mr Nam’s opinion. He goes on to say:[13]
“I would certainly consider the patient to have a disability from an industrial loss point of view as a result of his … injuries, taking into consideration the clinical, domestic, industrial and social aspects noted … [in his report]. Overall, the patient would have a 30% disability to cover his hand dysfunction, potential for wound breakdown at the nail in a person who has an amenable personality and good work ethic.
The patient has reached an element of peak of recovery and the prognostic outlook, governed by his early return to work with his same employer speaks volumes about the good future prognostic outlook as nothing can be done surgically to improve his symptoms - minor as they appear to be in this postoperative phase.”
[emphasis in original]
[13] PCB 44-45
32In terms of prognosis, he also opined that:[14]
“It is unusual in my experience to have much recovery in these neurovascular island flaps and the mild dys[es]thesia and sensory restrictions, let alone pulp pain, are most likely to be permanent … .”
[14] PCB 45
33Over objection, the defendant tendered a report of Mr Thomas Robbins, hand, plastic and reconstructive surgeon, dated 24 July 2023. I excluded part of that report as inadmissible. Counsel for the defendant conceded that the residue of the very brief report was of little assistance in my task in determining Mr Henderson’s application.
Submissions
34Counsel for the defendant, Ms Manning, submitted that the injury was to a non‑dominant thumb, not the whole hand, and that his treatment has been limited. The plaintiff was in hospital overnight and he was certified as fit for return to full‑time duties on 20 April 2021. He saw his GP once, had one prescription for Endone, two hand therapy consultations and is presently and has, since 2021, had no ongoing treatment. He currently experiences intermittent, not constant, pain.
35There is no report from his general practitioner or hand therapist, or corroborative evidence from a co‑worker about the difficulties the plaintiff says he is experiencing at work.
36In terms of the analysis of what had been lost versus what he had retained as conducted by the Court in Haden Engineering,[15] Ms Manning submitted that the plaintiff can still drive a manual car, is still capable of cooking, mowing lawns, shopping, shaving and holding a knife and fork. He has lost only a component of his chosen field and can still do most things in an adapted fashion; and he is still working in a field that he chooses to do. He has minimal sleep interruption.
[15] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden Engineering”)
37Overall, she submitted that the consequences to Mr Henderson of his injury are minimal when compared to the range of cases.
38For the plaintiff, Mr Monti of King’s Counsel, submitted the question of treatment presently is irrelevant, as none is available. The plaintiff experiences constant throbbing in his left thumb, and at age forty-four for a man who uses his hands every day, all day at work, he is faced with the consequences for approximately twenty years to the age of his retirement.
39In Mr Monti’s submission, it was a credit to the plaintiff that he had reached the employment stage that he has, in the context of a serious addiction in the past, and has demonstrated himself to be a stoic individual, both in that regard and in relation to his attitude and adaptive strategies as a consequence of his industrial accident. He submitted ultimately that the consequences, when considered collectively, meet the narrative test.
Consequences of injury
40Even though Mr Henderson works full time and overtime, he struggles and experiences difficulty every day of his working life. He is no longer able to ride a trail bike which was his principal recreational activity before the accident. He is compromised in the preparation of meals and other minor domestic tasks. He suffers, however, an increase in pain, dysfunction and inconvenience on a daily basis as a result of his injury.
41I accept Mr Henderson’s evidence as to his levels of pain, loss of function and impairment. He presented as an honest witness who answered questions directly, in a straightforward manner, made appropriate concessions, did not seek to dramatise, embellish or exaggerate his condition or the impact of the impairment upon him.
42To his credit, he was noted by hand surgeon, Mr Maloney, to be –[16]
“… highly motivated to return to work earlier than I would have expected, given his style of work and the extent of his injury.”
[16] PCB 26
43Mr Henderson suffers constant throbbing in his left thumb as well as pain on application of any pressure. This pain is exacerbated with activity and with cold weather or exposure to heat in an industrial context when he is welding. He has suffered loss of the sensation in the top half of his thumb, and reduced strength. Because his nail extends over the missing part of his thumb, he is constantly catching his nail which results in significant pain. His thumb is prone to hits, knocks and catches, which causes an increase in his pain. This occurs on a daily basis. His reduced grip strength makes it dangerous for him to use a hammer and other work implements gripped in his left hand. He has particular difficulty using an engineering square to scribe lines in his fabrication work. Items slip out of his hands due to his pins and needles and lack of sensitisation in the top half of his thumb.
44Whilst he has done his best to adapt to his incapacity, I accept Mr Monti’s submission that this willingness to get back to work and not let his injury prevent him from undertaking domestic and employment tasks unnecessarily should not be held against him.
45The TIG welding produces specific difficulties. He predominantly holds the welding gun in his right hand, which is operated by a switch, using his thumb. He cannot do this with his left hand in his usual work context. He can no longer hold the one-millimetre thin filler wire in his left hand and manipulate it because it involves fine movements in what is a skilled welding operation.
46Over time he has tried unsuccessfully though. His evidence was that he had attempted TIG welding on maybe eight or nine occasions, for a duration of between half and one hour on each occasion, both at home and also onsite in January 2022. He has attempted TIG welding in the last three months. I find that he is unable to do this work as a consequence of his injury, and TIG welding work is more remunerative than his other welding tasks.
47Whilst he is still able to complete installations of powder coated steel using a standard welding gun, he is unable to weld stainless steel, which requires TIG welding, and is a substantial part of his team’s work.
48In re‑examination, Mr Henderson also clarified and gave further evidence of the difficulties he experienced at work. He struggles to hold things with his left hand when he is required to grip around the item, and this causes pain and pins and needles. This difficulty arises in the context of carrying lengths of steel, which is involved in every part of his job, every single day of his working life.
49He also gave evidence that the fine movements required when rolling filler wire in the course of TIG welding result in instability of the one-millimetre wire, and from time to time he will receive an electric shock if the wire touches the electrode due to his difficulty in dexterity. He has no feeling in the first joint of his thumb.
50Over time and despite surgical intervention, his pain has not improved and is expected to continue for the rest of his life. There is no future treatment indicated and he avoids using medication as he is a recovering addict. He accepts that his condition is permanent and accepts the pain, because he does not want to rely on painkillers for the rest of his life to go about his work, domestic and social activities, and I accept this explanation.
51I also accept that his pain sometimes interferes with his sleep.
52His reduced grip strength and dexterity in his left hand affects his domestic and social activities, in particular the left thumb compromises any task which requires fine dexterity in his left hand. This results in difficulties when undertaking some day‑to‑day household tasks, such as cooking, and his pain increases when handling and cutting vegetables. Mr Henderson lives alone. Mr Henderson also has difficulty with some personal care, including dressing, and cutting his left thumb nail.
53It is important to consider Mr Henderson’s evidence that after a period of time in alternative employment, in or about 2012, he commenced Certificate III and IV training as a boilermaker/welder which he completed in 2014. In his words, "this was one of the things that I was probably best at".[17] It is his trade, his chosen profession and I infer that it is very significant to him.
[17] Transcript (“T”) 66, Line (“L”) 28-29
54In his first affidavit, Mr Henderson sets out his difficulties as below:[18]
[18] The plaintiff’s first affidavit, paragraphs 15-24
“While I have managed to get back to welding work, the thumb and left hand are ongoing and significant problems for me. I have been left with fluctuating levels of pain in the thumb. I also have a loss of feeling in the thumb. I also have a problem with pain in colder temperatures and in hotter temperatures.
There is also a significant loss of dexterity. The thumb and the left hand more generally do not function properly when gripping and/or holding things these days. As a welder, this is a massive issue.
While I have got back to boilermaking work, I am significantly limited in what I can do with the hand. Boilermaking work is, of course, something that requires the use of both hands, and this is now a major problem for me.
I have great difficulty with many parts of the job of a boilermaker. The loss of feeling in the thumb has stopped me from carrying out many duties in my normal workday. In particular, I have lost the ability to do fine welding (TIG welding). This type of welding requires a wire to be fed with the left hand while using a welder with the right hand.
I also struggle with fine manipulative tasks. I can’t use the thumb to pinch small items and will frequently drop small items. Items like small nuts and bolts are very hard to pick up and/or grip.
As for the loss of sensation in the thumb, it is not just the tip of the thumb. The loss of feeling goes about half-way down the thumb. That, of course, makes manual tasks even more difficult.
The inability to cope with heat is also a major issue for me. Welding means that I am routinely exposed to heat. It is part and parcel of the job.
Bearing in mind that my skills are limited to boilermaking / welding work, that is a major problem for me, and I am stirring up significant pain every workday.
All of the above problems limit my ability to do my job. While I am working, I am nonetheless a boilermaker who can’t do all the duties required of the job. I am therefore very concerned about the future, as I know that this injury has already compromised my ability to do my job and will almost certainly compromise my ability to find other work in the future. While it might be said that I have ‘only’ lost a part of a thumb, the nature of the fine movements required with each hand in my job, and my inability to TIG weld in particular, mean that the injury has placed huge restrictions on the type of work that I am able to carry out.
Further, it isn’t just work that is compromised. Simple tasks like doing up a button or pressing a button on a remote control are now difficult and can be impossible to do with the left hand and/or left thumb. I also flare up sharp and strong pain if I bump the thumb. It doesn’t take much of a bump at all to set off this pain.
It is not the case that I simply get over the pain at night. I will usually go to bed at night in pain as a result of using the left hand during the day. This is generally more of a problem after a day at work, which really takes its toll on the thumb.”
55Mr Henderson sets out the following in his second affidavit:[19]
“As a welder, the loss of dexterity is a major issue for me every day at work. Gripping and holding are significantly compromised. Fine movements are compromised. The find [scil fine] movements with TIG welding (a two-handed job) are still very much compromised. These are the fundamental things required when welding and fabricating.
Being ambidextrous isn’t really an advantage with fabricating and welding as almost every task needs to be done with two hands.
[19] The plaintiff’s second affidavit, paragraphs 5-9
I find that trying to grip a ruler is difficult. Lining things up when fabricating is difficult and often painful. I am clumsy and this slows me down. It is not just the pain that is the problem. Ultimately, it compromises my work and employability. I am acutely aware of this, and I have to push myself extra hard so that hopefully it isn’t noticeable that I am often struggling to keep up.
I also have significant problems with the fingernail of the left thumb. The nail hooks over like a claw as it grows. This causes it to catch. That is always very painful indeed. It is a very sharp pain and will very frequently cause me to drop things and I will have to stop what I am doing.
I also still struggle with fine manipulative tasks. I continue to drop items like small nuts and bolts. These are then also very hard to pick up and/or grip. The whole process can be painful and slow.”
56Finally, in Mr Henderson’s third affidavit, he stated the following:[20]
“I also have to work marking with an engineering square in my left hand to mark out the job. I use a scriber in my right hand to scratch the steel. When I am marking, I have to hold the square still with my left hand so as to mark it with the scriber. I have difficulty holding the square still and it constantly moves on me, and I have to do it again and try and hold it still.
Before I drill a hole in steel, I have to pin punch it. That means I have to mark it or indent it so as to get the hole which I am to drill in the correct place. I use a steel punch which I hold in my left hand, and I hit it with a hammer in my right hand. I have difficulty holding the pin punch, and after it is hit, I cannot control it and often it flies out of my hand. I then have to pick it up and go through the process again.I have constant difficulty in gripping with my left hand with a pincer movement as I do not have the strength in my thumb. For example, lifting a piece of square tube which I would normally do regularly and without difficulty, but now I often cannot lift or carry it, and I place it on my shoulder to move it.”[20] The plaintiff’s third affidavit, paragraphs 5-7
57I accept Mr Henderson’s impairment restricts his ability to conduct TIG welding, which is a higher paid class of work in his industry, and so has produced a pecuniary disadvantage. As a consequence of the pain and limits of function in his hand from his injury, I find he is no longer able to partake in his prior recreational pursuit of trail (or dirt) bike riding which used to give him, in his words, “immense” enjoyment.[21] I regard this as a significant consequence. His recent post‑injury pursuit of golf is also compromised by grip strength and sensitivity issues.
[21] T68, L2
58On the evidence as a whole, I am satisfied Mr Henderson has constant throbbing in his left thumb. He experiences pain upon use, or knocking, jarring or catching of his thumb, which occurs daily. Pain sometimes interrupts his sleep. Whilst he experiences significant pain, he continues to work in full‑time employment, with overtime, adapting to his impairment (though precluded from TIG welding work).
59He has particular difficulties with activities involving the use of his left hand, especially when involving strength or grip, or when fine dexterity is required. He endures significant pain in his daily working life which requires use of both hands. He experiences pain in his thumb in cold weather or if exposed to heat, including work as a welder.
60He had surgeries that are set out above, involving significant periods of pain, time off work, rehabilitation and hand therapy. The amputation of the top part of his thumb has resulted in a more than marked loss of function in his left hand for which there is no further surgical treatment available to him.
Findings
61I am satisfied there is an impairment of the left hand, and such impairment is “permanent” within the meaning of the Act.
62I am also satisfied that there is scarring at the site of the injury and the subsequent surgery, with loss of sensitivity and strength associated with sensory disturbance by way of ongoing pain and tenderness.
63The critical issue is whether or not the impairment is “serious” to Mr Henderson within the meaning of a narrative test. It is assessed by reference to the consequences of the injury rather than injury itself. In Ellis Management Services Pty Ltd v Taylor,[22] the Court of Appeal stated:
“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.
…
57.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.
58.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.
59.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 ... .”
(citations omitted)
[22] [2013] VSCA 326
64At the end of the day, this is a finely balanced application. I give very little weight to the plaintiff’s difficulty in playing golf, a pursuit which he took up since his injury, because he enjoys the social aspect and exercise provided by his regular games. But whilst it is not significant in terms of any consequence as such, his evidence nevertheless demonstrates the practical difficulties he experiences in managing his reduced capacity in his left hand.
65This might be contrasted with his inability to pursue his trail bike riding, which is of a different character. He owns two complete motorcycles and another frame and engine which is partially completed. He is obviously a passionate motorcyclist. He was a regular rider, somewhere between weekly and monthly in his local area of Shepparton.
66But it is his incapacity at work, which tips the balance in his favour in the exercise of the value judgement, in terms of whether, in comparison with other cases, including those that do not come before the Court, that he has established that his injuries are “serious”.
67The value judgement, of course, is to be exercised in the particular circumstances of this case. I was, however, referred to eleven decisions of this Court, and the Court of Appeal decision in Abbas v Transport Accident Commission,[23] involving impairment of a hand. These cases broadly considered finger injuries where the plaintiff was able to satisfy the narrative test in the context of a return to work, but such return being compromised by injury, in that the plaintiff was working with permanent ongoing restrictions and pain.
[23] [2015] VSCA 217 (“Abbas")
68I was also referred to the County Court decisions of Dobbin v VWA[24] and Schrantz v UBC Commercial Group Pty Ltd,[25] where the plaintiff was unsuccessful in establishing a serious injury relating to a hand and partial amputation of a digit or digits.
[24] [2022] VCC 2173
[25] [2023] VCC 967
69In Abbas,[26] the Court of Appeal considered an injury to the ring and middle fingers of a dominant hand, and I pause to interpolate that an injury to the thumb is of greater significance than an injury to the finger in terms of hand function in accordance with the medical evidence in this case.
[26] Supra
70The Court stated:[27]
“… The point was whether the consequences of the injury that ‘relate to pecuniary disadvantage and/or pain and suffering’ satisfied the ‘very considerable’ test. In this case, the applicant was entitled to have his application considered by reference to the consequences that related to both pecuniary disadvantage and pain and suffering. If the consequences of the applicant’s injury that relate to pecuniary disadvantage and pain and suffering are such that, when his injury is judged by comparison to other cases in the range of possible impairments or losses, it can be fairly described as at least ‘very considerable’, then the applicant is entitled to succeed.”
(citations omitted)
[27] Ibid at paragraph [39]
71The applicant succeeded in that case, noting the different statutory scheme relating to a transport accident.
72Both Abbas[28] and Porto v Design Line Cabinets Pty Ltd (Deregistered) & VWA[29] to my mind demonstrate that the injury sustained by Mr Henderson is within the range of cases that the Court of Appeal and many courts since have considered to be in the range of “serious”.
[28] Supra
[29] [2012] VCC 1645
73This man works with his hands, and is he is reminded on a daily basis of his impairment arising from the loss of function of his left hand. He suffers pain when his nail catches, when he applies pressure to his thumb, and he is continually compromised in his ability to perform his usual duties in his chosen career, whether that be carrying lengths of steel, securing nuts and bolts, and again I interpolate that his evidence was that he would be required to secure between 500 and 800 bolts in a typical installation over a period of two weeks, or in the task of welding under the circumstances, he remains unable to perform TIG welding because he does not have the dexterity in his left hand to manoeuvre the fine filler wire and may not operate the welding gun with his left hand because of the trigger mechanism.
74Despite his pain at work, he eschews taking analgesics in the context of a past addiction. He has managed to remain, on his evidence, clean for four years. I accept that by overcoming this addiction he has demonstrated considerable stoicism and resilience.
75There are no credit issues, so whilst it may have assisted the plaintiff’s case, I am not troubled by the lack of supportive evidence to corroborate his difficulties at work. The credit of the plaintiff is of course of critical importance in applications of this type, and I find Mr Henderson to be a witness of truth and accept his evidence in relation to his difficulties at work.
76No income tax returns were tendered, but this is not a loss of earnings case and I place no regard on that omission. In this case, I accept the evidence of the extent of his impairment. He is to be commended for his attitude to returning to work and his persistence in light of significant ongoing pain, lack of dexterity, loss of sensation and the degree of inconvenience he experiences in his employment on a daily basis.
77I am satisfied that the evidence establishes consequences of his injury on his ability to pursue his chosen career path, which is a relevant factor.
78True it is that he has had no treatment, but there is no indication of any further surgical treatment or other treatment available. Mr Henderson appears to have reached his maximum level of medical improvement and is required to cope as best he can in the circumstance of a manual worker being compromised in the use of his left hand.
79I reject the defendant’s submission that a lack of treatment and, in particular, medication is indicative of minimal levels of pain and discomfort which is not “serious” within the meaning of the narrative test. With notable exceptions, including after Mr Henderson broke eight ribs and his clavicle in an unrelated work accident, and where he was prescribed 20 tablets of Endone before returning to work, and an additional prescription of opioid‑based medication in the immediate aftermath of the subject injury and surgery to repair his left thumb, Mr Henderson has avoided talking opioid medication for the reasons he expressed.
80For the reasons set out above, I am satisfied that the pain and suffering consequences of the impairment of his left hand are at least very considerable, having regard to the consequences to him.
81Maxwell P in Haden Engineering[30] stated:
“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. 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]’.”
[30] Supra at paragraph [15]
82I am satisfied, despite returning to full‑time employment, the consequences of Mr Henderson’s injury are more than marked in the context of his chosen career, by reference both to his pain and restrictions, and his inability to perform TIG welding.
83Being satisfied of the level of current impairment and the pain and suffering consequences and that loss of function, I also take into account that Mr Henderson is forty-four years of age and will bear the consequences of his work injury for the remainder of his working life. One could reasonably expect those consequences might endure for the next twenty or so years and for the remainder of his life in a domestic and social context.
84I find that his age has increased the seriousness of Mr Henderson’s injury as he will bear that injury and its consequences for the rest of his life.[31]
[31] See Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
85The combination of the amputation requiring significant revision surgery, ongoing pain, interference with work, interference with domestic and recreational activity, and his age, is such that the pain and suffering consequences to Mr Henderson of his injury, are at least very considerable.
86I was invited to find that although Mr Henderson’s pain was intermittent, that I should, in accordance with the principles stated in Haden Engineering[32] and TTB SMS Pty Ltd v Reading,[33] reject his application upon consideration of what he had lost in terms of what he had retained.[34]
[32] Supra
[33] [2020] VSCA 203
[34] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 per Ashley J
87While the significance of what Mr Henderson has lost in terms of the seriousness of consequence might be informed by what is retained in the pursuit of his work as a boilermaker and his domestic and social activities, I must also consider the extent to which he is a stoic individual.[35] I consider Mr Henderson somewhat of a stoic, putting up with the pain and getting on with his life as best he can. That should not be held against him.[36]
[35] See for example Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [83]
[36] Dwyer v Calco Timbers Pty Ltd (No 2) (supra) per Nettle JA at paragraph [3]
88To his credit, it appeared to me that Mr Henderson is not prepared to allow his injury to compromise him in the pursuit of his chosen career, and I do not view the consequences to him as any less serious merely because he has managed to continue working full time as a boilermaker. He does so in a compromised fashion and enduring daily pain.
89I accept his explanation as to why he does not take analgesics on an ongoing basis in the context of his previous addiction and that his pain and impairment is not going to go away. In his words, he just “[has] to learn to deal with it”.[37] So while Mr Henderson has retained the ability to do many things, it has to be judged in the context that for each, or for many, of those activities (for example dressing, working and cooking), he has only retained the ability to do them in a restricted or modified fashion, whilst confronting the reality that the activity will be productive of pain.
[37] T46, L17-18
90To the extent of the individual consequences of some sleep interruption, difficulty with various domestic tasks, including dressing, pain when he catches or knocks his left thumb on anything whilst at work or in a domestic or in a social context; his difficulties playing golf, inability to pursue his recreational activity (being the trail bike riding) and inability to perform the higher paying pre‑injury duties of TIG welding, when considered in isolation may not satisfy the narrative test.
91Taken as a whole, I am satisfied that the consequences of his impairment are more than marked and at least very considerable.
92For the reasons expressed, I am satisfied Mr Henderson’s impairment is permanent and he has a serious injury by reference to his pain and suffering and pecuniary disadvantage to the extent it is relevant in such application under the Act.
93Accordingly, I grant him leave under s335 of the Act to bring common law proceedings to recover non‑pecuniary loss damages for injuries he sustained on 1 March 2021 arising out of, or in the course of his employment with Dynamic Staffing Solutions Pty Ltd.
94I will hear the parties on the question of costs.
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