Kaos v XL Premix Pty Ltd
[2023] VCC 1229
•21 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-01508
| JOHNNY KAOS | Plaintiff |
| v | |
| XL PREMIX PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 April 2023 | |
DATE OF JUDGMENT: | 21 July 2023 | |
CASE MAY BE CITED AS: | Kaos v XL Premix Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1229 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – right-hand/wrist injury – disfigurement – pain and suffering – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Baker v Transport Accident Commission & Anor [1997] 1 VR 662; Transport Accident Commission v Garcia [2015] VSCA 225; Bath v Transglobal Group Pty Ltd (formerly t/as Plastic Technology) [2018] VCC 112; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Bustos v VWA [2021] VCC 1531; Kader (a pseudonym) v ABC Pty Ltd)(in liq) [2017] VCC 548; Kalinic v Acron Engineering Pty Ltd [2012] VCC 1052; Griffiths v Transport Accident Commission [2022] VCC 454; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect to disfigurement consequential to the accident which occurred 30 October 2019.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A MacTiernan | Slater and Gordon |
| For the Defendant | Ms C Kusiak | Minter Ellison |
HIS HONOUR:
Introduction
1The plaintiff, Mr Johnny Kaos:
(a) is thirty-eight years of age;
(b) is separated from his former partner;
(c) lives with his parents;
(d) has two daughters, Yasmina (aged twelve) and Maria (aged eleven). There is a flexible shared custody arrangement in place.
2Mr Kaos commenced work with the defendant, XL Premix Pty Ltd (“XL Premix”), in September 2019. He was a cement-truck driver.
3On 30 October 2019, Mr Kaos said:
(a) He had experienced problems with the remote control for the agitator on his truck. It had malfunctioned.
(b) He had advised his employer.
(c) As a result, the remote had been checked.
(d) He was told there was nothing wrong with the remote, and to resume work.
(e) Later in the day, the remote malfunctioned again.
(f) At this time, he was instructed to return to the depot and clean his truck.
4After returning to the depot, and while Mr Kaos was cleaning his truck, he said the agitator, without warning, started to rotate. The safety glove on his right hand was hooked by the agitator blade. Consequently, Mr Kaos’s right-hand became caught in the mechanism as it rotated. He managed to wrench his hand free (“the accident”).
5There was a lot of blood. He saw that there was a big hole in the top of his right-hand/wrist. A lot of skin was missing. As it transpired, there was also a fracture at the base of his right thumb.
6This was a traumatic and frightening event.
7Mr Kaos was taken by ambulance to the Royal Melbourne Hospital (“RMH”). He was admitted. Two days later, he underwent surgery in the form of:
(a) an open reduction and internal fixation of the fracture at the base of his right thumb. Two screws which were inserted at this time remain in situ;
(b) a full-thickness graft was inserted over the area of complete skin loss on the top of his right-hand/wrist;
(c) donor skin was taken from a site on the ulnar side of his right forearm.
8After his discharge from hospital, Mr Kaos remained off work for about six months. He initially attended the RMH for hand therapy. Mr Kaos said he had to relearn how to use his right hand. Mr Kaos is right-hand dominant.
9Mr Kaos said that he continues to suffer from:
(a) scarring and disfigurement;
(b) pain;
(c) reduced movement; and
(d) reduced strength in his right hand.
10Mr Kaos said he continues to attend for ongoing physiotherapy treatment with Mr Carmine Vinci. He usually sees Mr Vinci three times per month. Mr Kaos said this provides him with some temporary benefit. Mr Kaos said he continues to rub Vitamin-E cream into the scars.
11There is obvious scarring both on his right hand/wrist, and at the donor site on his right forearm.
12While Mr Kaos suffered a significant psychiatric response to the accident and was diagnosed as suffering Post-Traumatic Stress Disorder (“PTSD”), he said this has largely settled with time, therapy and self-management.
13Initially, Mr Kaos resumed work with XL Premix. However, that did not work out. He said there were problems at this workplace. He resigned.
14Mr Kaos then went straight to a job with PK Demolition as a hook-truck driver. He continued to work in this job until that company went into liquidation in April 2022. Mr Kaos then secured a job with Casmar Demolitions, undertaking the same type of work.
15In December 2022, Mr Kaos changed jobs. He obtained work as a hook-truck driver with Angar Environmental. Mr Kaos said:
(a) that while he does suffer some pain and discomfort at and after work, he is able to cope;
(b) he has undertaken various courses as a part of this job;
(c) he has been promoted;
(d) he enjoys this job.
16Mr Kaos said that both the disfigurement which he has and his right-hand/wrist injury are, independently, serious injuries for pain and suffering purposes.
17XL Premix said that neither Mr Kaos’s disfigurement nor his right-hand/wrist injury are serious injuries for pain and suffering purposes.
The nature of this proceeding
18This is an application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Mr Kaos relies upon both paragraph (a) and (b) of the definition of “serious injury” in s325(1) of the Act. That is:
(a) his right-hand/wrist injury is a “permanent serious impairment or loss of body function”;
(b) the disfigurement on his right-hand/wrist and arm constitutes “permanent serious disfigurement”.
19For Mr Kaos to be successful, he must establish that the consequences from his right-hand injury/wrist injury and/or the disfigurement of his right hand/wrist and arm, when judged by comparison with other cases in the range of possible impairments or losses of body function and/or disfigurements, are “more than significant or marked” and “at least very considerable”, as per the narrative test set out in s325(2)(b) and s325(2)(c) of the Act.
The issues
20While XL Premix conceded Mr Kaos had sustained injury, they said:
(a) Mr Kaos’s credit was in issue;
(b) the applications under both paragraph (a) and (b) were otherwise “range cases”.
21Thus, the issues for the Court to determine include:
(a) as to Mr Kaos’s credit and whether I can accept his evidence;
(b) the impact of the private investigator’s video surveillance and the Facebook video and entries;
(c) which of the medical opinions should be accepted and the assistance they provide;
(d) the nature, extent and permanency of Mr Kaos’s:
(i)right-hand/wrist injury;
(ii)disfigurement;
(e) whether Mr Kaos’s right-hand/wrist injury is a serious injury for the purposes of pain and suffering;
(f) whether Mr Kaos’s disfigurement is a serious injury for the purposes of pain and suffering.
Credit, video surveillance and social media
22As in a great number of cases of this type, the credit and reliability of Mr Kaos is important.[1]
[1]See, for example, the analysis of the Court of Appeal in Johns v Oaktech Pty Ltd [2020] VSCA 10, particularly at paragraph [76].
23XL Premix said that Mr Kaos’s credit was impugned. The attack on Mr Kaos’s credit included:
(a) the private investigator’s video surveillance shown in the course of the application and tendered in evidence;
(b) various videos, photographs and entries on Mr Kaos’s Facebook, YouTube channel, and other social media platforms, some of which were shown in the course of the application and tendered in evidence;
(c) the failure by Mr Kaos to refer to his involvement in hip-hop music in his affidavit evidence;
(d) Mr Kaos’s assertions that he would cover up his scarring due to embarrassment and distress, which XL Premix said was not true.
24Put bluntly, it was XL Premix’s position that Mr Kaos had deliberately exaggerated the impact of his injuries and had failed to disclose important matters so as to improve the prospect of his success in this application.[2]
[2]See, in particular, Transcript (“T”) 48, Lines (“L”) 9-11.
25Referring, firstly, to the private investigator’s video surveillance. It is dated 31 December 2022. The video showed Mr Kaos using his right hand to hold and use a hose and clean his car. Mr Kaos agreed that the film did not show any stiffness in his wrist, restricted movement or difficulties with using his right hand.
26In response, Mr Kaos said:
(a) he was undertaking a very light task;
(b) tasks which he undertook at work were much more difficult.
27While the private investigator’s video surveillance may go to the nature and extent of Mr Kaos’ right-hand/wrist injury for the purposes of assessment of the consequences, I do not accept this video, in itself, impugned his credibility and evidence. I accept that the tasks undertaken by Mr Kaos, which were depicted in the video, were no more demanding than the work which he undertakes with Angar Environmental. That Mr Kaos was working as a hook-truck driver is known to XL Premix.
28Referring now to the social media material.
29Mr Kaos was cross-examined at length in respect to materials contained on various social media platforms. Indeed, this was a key focus of the XL Premix case. The materials included:
(a) in February 2021, Mr Kaos performing tracks off his EP, “Beautiful Nightmares”;
(b) Mr Kaos performing hip-hop music at the Laundry Bar in December 2021;
(c) photographs of Mr Kaos in Cairns, Queensland in January 2023.
30Firstly, going to the videos of Mr Kaos performing. Mr Kaos:
(a) was performing music in a T-shirt;
(b) was performing at a live venue in front of approximately thirty people;
(c) had distributed the videos of himself performing in a T-shirt on social media where he had:
(i)142 followers on Facebook;
(ii)135 followers on Twitter;
(iii)1,215 followers on Instagram.
31Secondly, going to the photographs of Mr Kaos in Cairns. They showed him wearing a T-shirt and singlet. Neither covered the scarring and disfigurement on his right hand, wrist and arm.
32XL Premix said:
(a) Mr Kaos did not disclose his involvement in the hip-hop music scene or his performances in his affidavit evidence;
(b) there was no attempt to cover up his scarring:
(i)at the time of his live appearances;
(ii)in his published online materials;
(iii)at the time the photographs were taken in Cairns or when they were published online.
33XL Premix said:
(a) Mr Kaos’s exposure of his scarring ran contrary to his affidavit evidence. Namely, that he was embarrassed and self-conscious of his scars, and attempted to cover them up in public.
(b) His failure to reveal the nature and extent of his writing and performance of hip-hop music was very significant.
34While Mr Kaos, in his first affidavit, did refer to his involvement in music,[3] I accept that he did not, in either of his affidavits, depose to the nature and extent of his involvement in the hip-hop music scene. As the application proceeded, it became clear that hip-hop music has been an important part of Mr Kaos’s life subsequent to the accident.
[3]See paragraph [25], Further Amended Plaintiff’s Court Book (“PCB”) 8.
35Mr Kaos said that his live performances and the footage of them were not inconsistent with being embarrassed and self-conscious about the scarring and disfigurement. Mr Kaos sought to explain what, on the face of it, appears to be an inconsistency, by saying that his music and his performances were therapy. Mr Kaos said that the EP, “Beautiful Nightmares”, was based on his injury. He said his music and performances were part of his therapy to get over what had happened to him at the time of and as a result of the accident.
36I pause here to consider this explanation in the context of Mr Kaos’s psychiatric injury flowing from the accident.
37Mr Kaos did not proceed with a paragraph (c) application.
38Mr Kaos, in his affidavit evidence, said that he had suffered PTSD as a result of the accident. Given the circumstances, that is hardly surprising. He said one of the symptoms of his psychiatric distress/PTSD was nightmares.
39While there was no evidence tendered from any consulting psychiatrist or his treating psychologist, a close analysis of the general practitioner (“GP”) medical records includes many references to psychological distress, poor sleep, nightmares, and referral for psychological treatment.[4]
[4]See entries in the GP clinical records for 11 November 2019, Defendant’s Court Book (“DCB”) 34; 12 November 2019, DCB 34; 12 December 2019, DCB 33; 20 January 2020, DCB 32-33; 18 June 2020, DCB 30, 29 July 2020, DCB 29; 8 December 2020, DCB 28 and 23 January 2021, DCB 27.
40While very few people are likely to turn to hip-hop music and live performances as a means to deal with and manage the consequences that flow from a traumatic accident, that is what Mr Kaos said he did. Of the video of him performing, he said:
Q:“… Mr Kaos, I suggest to you that the posts and the videos available on your various social media platforms demonstrates that you are not embarrassed and self-conscious of your scarring?---
A:Um, I try to deal with it the best I can. Um, over time I’ve tried to deal with the basis of it’s a permanent scarring and will have to eventually expose it over time, and that’s what I’ve – I’ve been trying to do and deal with it through my music.
Q:But in your affidavit that we took you to before I started showing you this footage, you said, ‘I am embarrassed and self-conscious of my scarring’?---
A:Yep.
Q:And I suggest to you that the footage of you performing in a t-shirt is inconsistent with your evidence that you are embarrassed and self-conscious of your scarring?---
A:But I am, though.
Q:Well, I suggest to you that someone who is embarrassed and self-conscious of their scarring would not perform in music videos and upload music videos on the internet that can be viewed by thousands of people that can clearly see your scar?---
A:But that’s the therapy I’ve been trying to deal with myself in my music.
Q:I suggest that the posts and the videos indicate that you don’t try to hide your scar and skin graft by wearing long sleeve shirts or jumpers?---
A:No, I don’t. No.
Q:No. And I suggest that you’ve exaggerated the impact of your scarring to this court in an attempt to improve the prospects of success of your application?---
A: No, incorrect.
Q: Correct?---
A: No.”[5]
I will return to my analysis of this evidence.
[5]T47, L16 – T48, L12
41Moving, now, to the photographs of Mr Kaos in Cairns. They were taken while he was on a family holiday. He was wearing a T-shirt and singlet. The scarring and disfigurement was exposed. Mr Kaos agreed that the photographs were inconsistent with the assertions that he tried to hide the scarring. He said that, in Cairns at that time, it was very humid and hot.
42I accept that Mr Kaos’s affidavit evidence is, in parts, unsatisfactory. The criticism made by XL Premix is appropriate. I understand their submission, that this casts doubt on the balance of his evidence. If that were the end of the matter and all I had to assess, I would take a dim view. However, it is not. I have to weigh this criticism with the balance of the evidence.
43Firstly, having observed Mr Kaos in the witness box, I accept that he gave his oral evidence in a straightforward and credible manner. Mr Kaos was prepared to make concessions and sought to explain those matters which were subject to attack by XL Premix.[6]
[6]See, for example, T52, L2-4.
44Referring now to the videos of his live performances. Having observed Mr Kaos provide his explanation of his music and performance and the therapeutic value it provided to him, I found his evidence to be:
(a) earnest and heartfelt;
(b) consistent with the GP records in respect to his nightmares.
45As I have previously noted, very few people would consider writing and publicly performing hip-hop music to be therapeutic. However, both XL Premix and the Court must take Mr Kaos as we find him. I accept him to be a complex man. He is, on one hand, a truck driver, and, on the other, a long-time and accomplished musician. It was my observation that he is a deep thinker. I also accept that Mr Kaos has worked hard to recover from the injuries sustained in the accident and to get on with the rest of his life. His post-accident work record speaks to this.
46I accept Mr Kaos’s explanation that his music, the “Beautiful Nightmares” EP and the performances depicted in the videos, were part of his self-management. I accept that writing and performing music has been one of the ways he deals with what he said was significant psychiatric distress and upset. This has provided a pathway for Mr Kaos to accept his injuries.
47In respect to the family photographs taken in Queensland and posted by Mr Kaos, I accept that it was humid and hot. I accept Mr Kaos had to balance up the convenience of wearing appropriate clothing with exposing his scarring and disfigurement. Having said that, I give weight to XL Premix’s submissions. I accept that Mr Kaos made a decision to opt for appropriate clothing in circumstances where his scarring and disfigurement would be exposed. This is:
(a) inconsistent with his affidavit evidence;
(b) consistent with his oral evidence.[7]
[7]See Mr Kaos’s evidence recited in paragraph [39] of this judgment.
48Moving to other aspects of Mr Kaos’s evidence.
49Firstly, in respect to work. I accept that Mr Kaos was frank about the demands associated with his work as a hook-truck driver. For example:
(a) his use of a rattle gun;
(b) his use of a broom to wash trucks;
(c) that he drives large trucks for long hours.
50This evidence is consistent with XL Premix’s case that Mr Kaos has undertaken, and continues to undertake, work which has quite significant physical demands. This, of course, needs to be balanced with Mr Kaos’s evidence that undertaking such work causes him increased pain and discomfort.
51I must also put this into the context of a man who I accept has endeavoured to get on with the rest of his life, an important part of which, is his work. Having observed Mr Kaos in the witness box, I accept him to be a stoic man.
52Secondly, I note that Mr Kaos was prepared to make admissions against interest. For example:
(a) That he continues to play the piano, notwithstanding his hand injury. He said this is “not too bad”.[8]
(b) He continues to write music for one to one-and-half hours at a time.
(c) He attends the gym with the same regularity as he had before the accident. Indeed, he conceded he has, to a degree, improved his wrist strength as a result of the exercises he has been doing.
(d) That he still goes mountain biking with his children.
[8]T66, L8
53I am critical of aspects of Mr Kaos’s affidavit evidence. There are aspects of that which I do not accept. That does not mean that all of his evidence is unreliable; nor should such a finding, in itself, be sufficient to justify the refusal of his serious injury application.[9] As I previously said, I accept Mr Kaos gave his oral evidence in a straightforward and credible manner. I acknowledge the need to:
(a) exercise care in the weight which I give to the balance of Mr Kaos’s evidence;
(b) the need to carefully analyse the objective evidence.[10]
[9]See the analysis in Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108, particularly at paragraph [145].
[10]Ibid
The medical evidence
The treating medical practitioners
The RMH
54I do not have a formal report from the RMH pursuant to Order 33 which addresses the issues relevant to this application. I have:
(a) one page of the Emergency Department records;
(b) the Operation Report for the surgery undertaken 1 November 2019.
55Fortunately, the Operation Report is very helpful in understanding the nature and extent of the surgery which was necessary to try to repair Mr Kaos’s wounds. In particular, the diagram which depicted Mr Kaos’s hand and which identified the multiple areas of injury. The diagram identified six discrete areas where there were wounds caused by either the accident or as a result of the surgery.[11] This, not including the skin-graft donor site.
[11]PCB 29
56The Operation Report and, in particular, the diagram, clarified the true extent of the loss of skin, that there was some involvement of tendons, and the trauma suffered by Mr Kaos in the accident.
Dr Fareed Yousif, general practitioner
57There were two reports from Dr Yousif in evidence. It is the second report, which is undated, but said to be of 30 March 2023, which was the most helpful.
58Dr Yousif first saw Mr Kaos after the accident, on 12 December 2019.
59Dr Yousif obtained a history that, on 30 October 2019, Mr Kaos suffered:
(a) a deep crush wound on the back of his right hand/wrist;
(b) a non-displaced fracture of the right thumb bone.
60At the time of his initial presentation, the examination findings included:
(a) a wound scar on the right wrist;
(b) a wound scar from where the skin graft had been taken on the right forearm;
(c) that the tactile, vibratory and temperature-sensation functioning of the hand/wrist were impaired;
(d) features of acute stress disorder, including anxiety and sleeping disturbances, and flash memories of the accident.
61Dr Yousif said that, in the few months after the accident, Mr Kaos suffered recurrent skin infections.
62Dr Yousif said Mr Kaos’s ongoing treatment included:
(a) regular GP review of both his right-hand injury and mental health;
(b) referral to a psychologist;
(c) regular hand therapy;
(d) the use of a splint.
63Dr Yousif said there was a slow and gradual improvement of the motor and sensory function of Mr Kaos’s right hand. However, he said Mr Kaos continued to suffer recurrent episodes of right-hand pain and stiffness, and some episodes of numbness above the injury site. Dr Yousif said that Mr Kaos gradually increased his work hours. He said Mr Kaos returned to his pre-injury duties on 13 February 2021 after improvement in mobility and pain, and having gained good grip strength.
64Dr Yousif concluded that currently Mr Kaos:
(a) continues to suffer recurrent episodes of right-hand pain;
(b) continues to suffer stiffness;
(c) continues to suffer episodes of numbness above the injury site;
(d) has good mobility and strength.
Mr Carmine Vinci, physiotherapist
65Mr Vinci first saw Mr Kaos on 7 April 2020.
66Mr Vinci said that Mr Kaos initially attended at his clinic two times per week. He said Mr Kaos now attends three times per month.
67Mr Vinci said that Mr Kaos, at the time of his initial presentation, complained of:
(a) ongoing restriction in his right hand;
(b) persisting numbness to the dorsal aspect of his right hand;
(c) lifting restrictions of approximately 15 kilograms;
(d) intermittent pain;
(e) susceptibility to change in climate.
68Mr Vinci said that the lack of function of Mr Kaos’s right hand/wrist, and the impact on his work capacity, had a significant effect on his mental health.
69Mr Vinci said that Mr Kaos would have some permanent incapacity of his right hand/wrist and he would be prone to periods of exacerbation. In particular, Mr Vinci said:
“... the extensive scarring and scar tissue continues to present a barrier to normal function in relation to both strength and range of motion.”[12]
(My emphasis.)
[12]PCB 54
Medico-legal evidence
Dr Murray Stapleton, plastic and hand surgeon
70Dr Stapleton examined Mr Kaos on behalf of his solicitors on 15 December 2022. This assessment was undertaken via video conference.
71In respect to the 1 November 2019 surgery undertaken at the RMH, Dr Stapleton explained that:
“... a full thickness graft was inserted over the area of complete skin loss positioned on the dorsum of his right hand and a repair of the damaged hand involved two parallel scars. The full thickness graft was taken from the ulnar side of his right forearm.
In addition to the skin loss, he fractured the base of the right thumb, i.e., the proximal phalanx, which required to be treated by open reduction and internal fixation. Two screws remain within his right thumb.”[13]
[13]PCB 37
72Dr Stapleton said the scarring and damaged area on the back of Mr Kaos’s right-hand remains very tender.
73In respect to the impaired sensation complained of by Mr Kaos, Dr Stapleton said:
“… He has no superficial sensation over the area of skin grafting and that will remain the case for the rest of his life. … .”[14]
[14]PCB 37
74From a functional point of view, Dr Stapleton said Mr Kaos’s wrist was stiff. He said:
“… He has not lost any movement of the thumb or fingers, but he has a reduction of wrist joint movement. That stated, that explains why the power of his grip in his right hand is weakened and he drops particularly heavy things because of his inability to apply a powerful grip.”[15]
[15]PCB 38
75Dr Stapleton also said Mr Kaos:
(a) has to be careful not to bump the dorsal aspect of his right hand;
(b) has to be careful, when wearing gloves, that they do not irritate the back of his right hand;
(c) needs to protect the skin-grafted area from exposure to intense sunlight.
76Dr Stapleton also obtained the history that, while Mr Kaos attends Mr Vinci for hand therapy weekly, and for a time feels better, his right hand shortly returns to its former state.
77Dr Stapleton observed that the scarring on Mr Kaos’s right hand was clearly obvious when viewed across a room.[16]
[16]PCB 38
78Dr Stapleton said, because of the injury to Mr Kaos’s dominant hand, it would affect all things he does, including social, domestic, and recreational activities.
79There were a series of photographs annexed to Dr Stapleton’s report.[17]
[17]PCB 41-45
My inspection of Mr Kaos’s hand/wrist and arm
80Before completing my analysis of Mr Kaos’ injuries, it is appropriate that I detail my inspection of his right-hand/wrist and arm undertaken in the course of the application.
81I undertook a careful inspection of Mr Kaos’ right-hand/wrist and arm. At that time, I asked Mr Kaos a series of questions and sought clarification in respect to various aspects of his injuries.
82It is important for me to say that, having seen the scarring and disfigurement firsthand, I was equipped with a better understanding of the nature and extent of Mr Kaos’s injuries. Neither the photographs, nor the various descriptions in evidence, adequately describe the injuries. Put bluntly, to the naked eye the disfigurement is much worse.
83I shall start with the skin-graft donor site.
84This is located on Mr Kaos’s right forearm. This scar is depicted in two photographs in evidence.[18] It is of a significant size, about 8 centimetres in length and about 4 centimetres in width. It is discoloured. It is quite raised. It is very obvious. There are, what I assume to be, suture marks around the main scar. Whatever the cause, these are numerous and obvious.
[18]At PCB 13 and PCB 41
85Further, at the time of my inspection of this scar, there was:
(a) a scab located more or less in the middle of this scar;[19]
(b) discharge from that lesion.
[19]See also the photograph at PCB 41 which shows scabby material.
86When I asked Mr Kaos about this, he said:
“HIS HONOUR:
Q: - - - (to witness) and that’s the - - -?---
A:The graft.
Q:The graft?---
A:And that’s where – that circle stamp is where – it just keeps appearing and keeps becoming like scabby type material on top. I don’t know, it’s just like a stem that – and it gets a bit, um, every now and then it gets like, like you peel off a scab and I have to, um, just band aid it up, but - - -
Q:Thank you. For the purposes of the transcript, you just – what the plaintiff is describing, and Ms Kusiak will correct me if I get this wrong, is in the middle of the scar there is a small scab and a – what appears to be a red area around that, which the plaintiff just described as being a recurrent sore or scab?---
A:Yeah, like a stamp that keeps appearing.
Q:Does that - - -?---
A:Yep.
Q:- - - have any discharge come out of it?---
A:Yeah, it’s like, um, like when you peel off a scab and it’s all, um, looks all wet and stuff and, yeah, I just put antiseptic and a band aid on it, but that’s always – it appears and it goes away, and appears just – yeah, like, um, repetition of it, yeah.
Q:So is there any time when there’s not a scab on it - - - ?---
A:Um - - -
Q:- - - or a - - -?---
A:Nah.
Q:- - - or any sort of inflammation there?---
A:Nah.”[20]
[20]T54, L22 – T55, L16
87When I asked Mr Kaos if this scar was tender, he said:
Q:“Could you describe what, if any, sensitivity there is in that scar?---
A:Um, it’s just – it feels a bit tender, um, when I touch it, but there’s no – there’s no, um – there’s no pain or anything like that, though.
Q:For the purposes of the transcript, the plaintiff was palpating the body of the scar either side of the small scabbed area. Thank you. (To witness) Is there anything else that you’d like to tell me about that scar?---
A:Um, no, there’s just that circular, um – that – that’s, like – it must be like a stem where it just, yeah, keeps appearing and gets a bit wet, and, um – yeah, and just keeps scabbing up all the time. I don’t know why, so - - -”[21]
[21]T55, L17-28
88Moving now to the scar located over Mr Kaos’s right wrist.
89There were seven photographs in evidence which sought to depict this scar.[22] This scar is very obvious. It is uneven. It is depressed. It is discoloured.
[22]PCB 10, 11, 12, 14, 43, 44 and 45
90In the photographs this scar is unsightly. Seeing it in person added to my understanding of just how nasty it is in reality.
91Mr Kaos said this area is numb to touch.
92Mr Kaos also said it was not just the visual consequences and impaired sensation that impacted upon him, but also this scarring impacted upon the movement of his wrist/hand. He said:
Q:“Thank you. Is there anything else that – is there any other swelling?---
A:Um, when I – when I put my wrist in motion, I can feel the tension, and it feels like just I’m pulling a string on my muscles, and it feels the tension. It’s very painful when I do that still.”[23]
[23]T57, L2-6
93While the decreased motion was not pronounced, there was a degree of impaired movement. This was difficult to appreciate without having the comparison to the range of movement of the left wrist.
94It is relevant that this reduced movement explained by Mr Kaos, and which I observed, is consistent with the evidence of Mr Vinci.[24]
[24]See paragraph [68] of this judgment.
95Moving now to the dorsal area of Mr Kaos’s right hand.
96Again, the photographs are inadequate in conveying the nature and extent of the disfigurement. There is, on the top of Mr Kaos’s right-hand, what he describes as a “hump”.[25] Of the photographs in evidence, it is the photograph at PCB 45 that gives some, but not complete, insight of the nature and extent of this hump. There is a raised dome-like lump which extends over nearly all of the dorsal aspect of Mr Kaos’s right hand. The lump runs from below his knuckles to his wrist.[26] The lump, in my terminology, or the “hump”, to use Mr Kaos’s terminology, is plainly obvious. It is unattractive.
[25]T56, L2
[26]See my description which was adopted by the parties at T56, L9-11.
97Moving now to the other and lesser of the disfigurements.
98Firstly, there is a surgical scar which runs from the knuckle at the base of Mr Kaos’s right thumb to the middle joint. There are also scars in the vicinity of the knuckles on his right hand. Of themselves, these scars in isolation, while obvious, would not warrant an application of this type.
Conclusions in respect to Mr Kaos’s right-hand, wrist, and arm injury
99The only medical material which XL Premix put into evidence were clinical notes from the Northend Medical Centre. These notes spanned 23 February 2008 to 15 October 2021. XL Premix said that, in the consultations in the months prior to 15 October 2021, there were no attendances where Mr Kaos made reference to his right-hand injury. XL Premix said that ought impact on my assessment of the seriousness of Mr Kaos’s right-hand injury and his disfigurement.
100Mr Kaos agreed that he had not consulted Dr Yousif for his right-hand injury and disfigurement for quite some time. He said he was seeing Mr Vinci for the ongoing management of his right-hand/wrist injury.
101True it is, that Mr Kaos:
(a) is no longer attending his general practitioner;
(b) only takes over-the-counter painkilling medication.
102However, I accept Mr Kaos’s explanation that it is Mr Vinci who now provides his ongoing treatment. I accept it is Mr Vinci who is in a good position to comment on Mr Kaos’s ongoing symptoms and treatment.
103Moving to my assessment of Mr Kaos’s hand/wrist injury and disfigurement. I accept that:
(a) Mr Kaos suffered a very traumatic injury to the dorsal aspect of his right hand/wrist in the accident.
(b) Mr Kaos was admitted to the RMH and underwent surgery. The operation report, and in particular the diagram which forms part of it and which identifies the area of trauma, is very helpful in the understanding of the extent of his injury.
(c) Mr Kaos suffered a deep crush wound to the dorsal aspect of his right hand/wrist. There was damage to multiple sites. There was a need for an extensive skin graft.
(d) Mr Kaos has been left with extensive scarring to not only the areas of his right hand/wrist which were injured in the accident, but also at the skin donor site. There is also a lump on the top of his right hand.
(e) In addition to the visual consequences, as a result of the scarring and disfigurement itself, Mr Kaos has also been left with:
(i)permanent impaired sensation;
(ii)sensitivity to fluctuation in temperature;
(iii)intermittent pain;
(iv)scabbing and discharge at the skin donor site;
(v)tightness at the wrist due to the scarring, which impacts upon his range of movement, hand motion and strength.
104It is now a little under four years since the accident. I accept that these consequences are permanent.
105In respect to the fractured thumb joint, there is little medical evidence to support ongoing significant impairment. I accept that:
(a) Mr Kaos has some pain at the base of his right thumb at the end of a working day;
(b) he has full movement of that joint.
106There was no evidence that Mr Kaos has suffered any other orthopaedic injury to the structures of either his hand or wrist.
107In the course of my analysis, it became apparent from the medical evidence, the inspection which I undertook of the disfigurement, and Mr Kaos’ oral evidence, that it is the scarring and disfigurement to the right hand/wrist and arm which is the primary cause of his ongoing functional impairment and the consequences over and above the visual.
108This is not a case where the wound has healed, leaving a scar, but no other physical consequences directly attributable to the disfigurement.
109I consider it therefore appropriate to assess the paragraph (b) application prior to completing my assessment of the paragraph (a) application.
Disfigurement – the legal principles
110It is appropriate at this stage of my judgment to review the relevant authorities and the steps to be followed when determining a paragraph (b) disfigurement case.
111There are two non-contentious propositions to acknowledge from the outset:
(a) that it is permissible and indeed appropriate for the Court to aggregate all of the consequential scars and disfigurements;[27]
(b) psychiatric/psychological consequences are only to be taken into account for the purposes of an application pursuant to paragraph (c).
[27]See Baker v Transport Accident Commission & Anor [1997] 1 VR 662.
112Moving now to the process of analysis to be undertaken.
113The seminal Court of Appeal decision on disfigurement is Transport Accident Commission v Garcia (“Garcia”).[28] This case involved the operation of the Transport Accident Act 1986. The Court of Appeal provided a very detailed analysis of the relevant principles, particularly at paragraphs 28 through to 36.
[28][2015] VSCA 225
114This application, of course, involves the Act.
115I shall limit my further discussion to two recent decisions of this Court. Both of these cases referred to Garcia and deal with the operation of the Act specifically.
116Firstly, Judge Parrish in Bath v Transglobal Group Pty Ltd (formerly t/as Plastic Technology).[29] His Honour, having reviewed the line of authorities, including Garcia, and undertaken a very thorough analysis, said:
“… I consider that the various statements of principle in relation to the process of assessing consequences, although generally stated in claims for ‘serious injury’ under paragraph (a) of the definition of serious injury, are just as applicable in principle to claims under paragraph (b) of the definition of serious injury. ... .”[30]
[29][2018] VCC 112
[30](Ibid), paragraph [124]
117His Honour went on to reference the Court of Appeal in Ellis Management Services Pty Ltd v Taylor[31] at paragraphs 57-59:
“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.
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.
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. … .”[32]
(Footnotes omitted.)
[31][2013] VSCA 326
[32]Bath v Transglobal Group Pty Ltd (formerly t/as Plastic Technology) (supra), paragraph [124](a)
118Secondly, Judge Ginnane, in Bustos v VWA (“Bustos”).[33] In their written submissions, XL Premix made specific reference to his Honour’s analysis and, in particular, paragraph 151. In that matter, his Honour, after concluding that the plaintiff did not suffer a serious injury, went on to say:
“... 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.”[34]
[33][2021] VCC 1531
[34](Ibid) at paragraph [151]
119It is not only the objective characteristics of the disfigurement, but also the consequential pain and other difficulties associated with that disfigurement, which is to be assessed.
Does Mr Kaos suffer a permanent serious disfigurement?
120The disfigurement which Mr Kaos suffers is obvious, ugly, and will be lifelong.
121That is, however, not the end of it.
122Mr Kaos said there are consequences flowing from the scarring and disfigurement which go beyond the visual. These include:
(a) tenderness and pain at the scar sites, particularly the donor site and the scar over the right wrist;
(b) impaired sensation and numbness, particularly at the scar over the right wrist;
(c) sensitivity to fluctuations in temperature;
(d) sensitivity to the sun and the ongoing need to apply sunscreen;
(e) general vulnerability and fragility of the skin at the scar sites;
(f) the scabby lesion at the donor site;
(g) ongoing discharge from the lesion at the donor site;
(h) tension at the site of the scar over the right wrist, which impacts on the movement and strength of the right hand.
123Mr Kaos’s evidence was well tested in the course of the application.
124Having considered all of the evidence, I accept that Mr Kaos does suffer these consequences resulting from the disfigurement in addition to the objective visual consequences.
125Mr Kaos also said there were emotional consequences in the form of embarrassment and upset due to the disfigurement. As already noted, these alleged consequences are contentious.
126In the course of the application, much was made by XL Premix of Mr Kaos wearing a T-shirt or singlet in public and the publishing of such images on social media. XL Premix said:
(a) Mr Kaos’s alleged embarrassment and distress was not true;
(b) Mr Kaos’s willingness to display his scarring and disfigurement diminished the seriousness of the consequences of such disfigurement.
127True, it is, the scar at the donor site on the right arm and perhaps at the wrist, could be covered by wearing a long-sleeved shirt.
128However, absent wearing a glove on the right hand (which Mr Kaos said, and Dr Stapleton echoed, irritates the susceptible skin on the hand/wrist), that disfigurement is there for the world to see.
129The relevance of covering up scarring is a matter which Judge Misso grappled with in Kader (a pseudonym) v ABC Pty Ltd (in liq).[35]
[35][2017] VCC 548
130In considering such matters, his Honour, at paragraphs 25 and 26, said:
“Counsel for the defendant submitted that if scarring can be concealed by the use of clothing, then the consequences of the disfigurement are significantly diminished. He quite properly conceded that it is an important and relevant consideration, but not of itself determinative of whether scarring constituting permanent disfigurement is or is not serious.
I am in no doubt that scarring, for example on the face, may not be capable of concealment, and hence the consequences of that disfigurement would be far worse than scarring on other parts of the body which could be concealed by the use of appropriate clothing, but does that mean that particularly bad scarring cannot amount to permanent disfigurement which is serious because it can be concealed in that way? I do not accept that because it would lead to a remarkable result, that potentially only scarring which could not be concealed would be capable of amounting to permanent disfigurement which is serious.”
131Like Judge Misso, I do not accept that if a disfigurement can be concealed, that, in itself, precludes a finding of serious injury.
132Given Mr Kaos, in his oral evidence, conceded that he does not cover the scarring,[36] what impact does this have in the context of this case?
[36]See Mr Kaos’s evidence at paragraph [39] of this judgment, which can be contrasted to his affidavit evidence.
133I accept Mr Kaos, notwithstanding my criticisms of his affidavit evidence, is a sensitive and deep-thinking man. Mr Kaos’, actions in performing his hip-hop music and, in particular, the tracks of “Beautiful Nightmares”, must be put into the context of a man who I accept was trying to work through the consequences of his injuries.
134I also accept Mr Kaos’, oral evidence that he was no longer, in 2021, covering up his disfigurement.
135Having said that, I do not accept XL Premix’s submissions that the disfigurement has not caused Mr Kaos any level of embarrassment or upset. While I am critical of the content of his affidavit evidence, I am of the view that, on an objective assessment of the scarring and disfigurement, it would not be unreasonable to expect that a person who suffered such scarring and disfigurement would have a genuine level of ongoing embarrassment and concern. However, for the avoidance of doubt, given the unreliability of Mr Kaos’s affidavit evidence, notwithstanding these observations, I am not prepared to place any great weight on Mr Kaos’s claimed embarrassment and upset.
136Reverting back to the disfigurement itself. It is plainly obvious. As Dr Stapleton said, it can be seen from across the room. Further, Mr Kaos suffers from the chronic scabbing and discharge at the donor site and the other non-visual consequences to which I have already referred.
137I am conscious of the need to assess Mr Kaos’s disfigurement in comparison with other cases. There have, over the years, been many disfigurement applications before this Court. I have undertaken a review. They are too numerous to reference them all this judgment. I refer to a sample:
(a) In Garcia, the application involved scarring to the plaintiff’s left upper arm. It was said to be plainly large, unsightly and in a prominent position. The plaintiff was successful.
(b) In Bustos, the application involved injury to the index finger of his right hand. There was raggedness in the healed area of the flap beneath the tip and a faint scar. The plaintiff was unsuccessful.
(c) In Kalinic v Acron Engineering Pty Ltd,[37] the plaintiff suffered scarring to his left leg. The scarring was large measuring 17 centimetres x 2 centimetres. It was said to be well healed. The plaintiff was unsuccessful.
(d) In Griffiths v Transport Accident Commission,[38] the plaintiff suffered scarring to his face. The scars were said to be prominent and obvious. The plaintiff was successful.
Of this sample, Garcia appears to be the most similar.
[37][2012] VCC 1052
[38][2022] VCC 454
138It is, of course, trite to say that each application must be determined on its own particular facts.
139Mr Kaos is thirty-eight years of age. He will have to live with the consequences of the disfigurement for the rest of his life.[39] The scarring is, put bluntly, ugly and obvious. Further, I accept that there are consequences which Mr Kaos has to endure by reason of the disfigurement which go beyond the visual consequences.
[39]See the analysis in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
140Having considered all of the evidence, I accept that the consequences of Mr Kaos’s disfigurement do satisfy the “very considerable” test. Leave will be granted.
Does Mr Kaos suffer a permanent serious impairment or loss of body function?
141I am assisted in my assessment of the pain and suffering consequences of the injury to Mr Kaos’s right wrist and hand by the observations made by Maxwell P in Haden Engineering Pty Ltd v McKinnon.[40]
[40][2010] VSCA 69
142Before moving on to my analysis of those matters identified by his Honour in Haden Engineering, I repeat the concern which I previously expressed in this judgment about the reliability of Mr Kaos’s affidavit evidence.
143Moving on. Referring firstly to pain.
144Mr Kaos, in his oral evidence, conceded that during the day his pain did not really get that bad. He said that the pain does increase by the end of the day and that, at times, he takes Panadol.
145I note also Mr Kaos’s general practitioner’s medical records and his concession that he has not consulted Dr Yousif in respect to his hand injury for treatment for many years. Mr Kaos has not been prescribed painkilling medication for many years.
146As I have stated earlier in this judgment, I accept that Mr Kaos does suffer some level of pain resulting from the scarring and disfigurement. In particular:
(a) the tension on movement of the wrist;
(b) when he knocks the scars;
(c) a level of tenderness which is present within the scarring.
147Putting that aside, I do not accept that pain is significant in his presentation by reason of his orthopaedic-type injuries.
148Moving to the functional capacity and movement.
149Mr Kaos said he had limited movement and grip strength in his right hand. There is no medical evidence to the effect that this is consequential to his fractured thumb or any other orthopaedic injury. Indeed, Mr Kaos, Mr Vinci and Dr Stapleton attribute the limited movement and grip strength to the scarring over his right wrist and, in particular, the tension which it causes.
150Mr Kaos has full movement of his right thumb.
151I accept that the functional incapacity and impaired movement are primarily a result of the scarring and disfigurement. While there may be some consequence flowing from the thumb fracture, over and above the pain referred to already, I do not accept these to be significant.
152Moving now to Mr Kaos’s work capacity.
153Mr Kaos returned to work as a cement-truck driver. After a short period, he resigned from XL Premix. I accept his reason for moving from cement-truck driving to be primarily due to his psychiatric injury.
154Mr Kaos has, since leaving XL Premix, been in continued employment as a hook-truck driver.
155Mr Kaos said he enjoys his current job. He said there are aspects of that work which are physically demanding, but he copes. He said he works overtime every second weekend.
156Mr Kaos has continued to be involved in music. Indeed, he has a manager who assists him in this pursuit.
157As to other disabling effects of pain referred to by Maxwell P:
(a) Any sleep impairment would seem to be primarily consequential to the nightmares which Mr Kaos has suffered, and his psychiatric injury.
(b) Mr Kaos has retained the dexterity in his right hand, to a level where he can undertake such activities as using a rattle gun at work, play a piano, and hold a microphone while performing.
(c) I do not accept that Mr Kaos is unable to engage in the full range of self-care and self-management, or perform a full range of household activities.
(d) I do not accept that Mr Kaos is unable to engage in social activities. Indeed, his performances as a musician would tend against this proposition.
(e) Mr Kaos said that he could no longer play the guitar by reason of his hand injury. This, I accept, is due to his inability to curl his wrist around the guitar, which, in turn, is due to the tension consequential to his scarring. This is not due to any orthopaedic injury sustained in the accident.
158As a part of my determination, I must be informed by what has been retained, as well as what has been lost.[41]
[41]See Ashley JA at paragraph [27] of Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
159Mr Kaos has continued to undertake a range of activities. For example he:
(a) has continued to work fulltime as a hook-truck driver;
(b) has continued to perform his hip-hop music;
(c) continues to write music for one to one-and-a-half hours per night;
(d) is able to play the piano;
(e) goes mountainbike riding with his children;
(f) has retained the capacity for self-care, self-management and undertaking household activities.
160While Mr Kaos may have suffered consequences of the hand/wrist injury which are marked or considerable, I do not accept he has discharged the onus of establishing that his paragraph (a) application meets the “at least very considerable” test. This aspect of his application fails.
Orders
161I will hear the parties in respect to the consequential orders to be made in this matter.
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