McLeod v Victorian WorkCover Authority
[2025] VCC 126
•18 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-03511
| IAIN MCLEOD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2025 | |
DATE OF JUDGMENT: | 18 February 2025 | |
CASE MAY BE CITED AS: | McLeod v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 126 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Right Index Finger partial amputation (dominant hand); return to pre injury work, significant impairment to recreational activities – guitar playing and home renovations
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi [1998] 4 VR 439; Johns v Johns v Oaktech Pty Ltd [2020] VSCA 10
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Arnold Dallas McPherson |
| For the Defendant | Mr C Miles | Lander & Rogers |
HER HONOUR:
1Mr Iain McLeod (“the plaintiff”), seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring common law proceedings to recover pain and suffering damages in respect of a partial amputation of his right index finger (“the injury”).
2The injury is to the dominant hand. It arises out of Mr McLeod’s employment as a chef with MannaCare, an aged care provider (“the employer”).
3The defendant did not dispute the compensability of the injury.
4The hearing proceeded in the usual way. The plaintiff was the only witness to give oral evidence and be cross-examined. The parties otherwise tendered various reports from a Joint Court Book.
The relevant legal principles
5The legal principles are well known and were not in dispute. The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury”. The plaintiff bears the onus of proving, on the balance of probabilities, the following two criteria:
(i) that “the injury” is a “serious injury” by reference to the pain and suffering consequences of any impairment or loss of body function, when judged by comparison with other cases in the range of possible impairments or losses of a body function;[1] and
(ii) that the pain and suffering consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being more than significant or marked and as being at least very considerable.[2]
[1]Section 325(2)(b) of the Act
[2]Section 325(2)(c) of the Act
6Initially, his counsel opened the case on the basis that the application would be put on the basis of disfigurement under subparagraph (b) as well as on the basis of pain and suffering arising from the physical injury under subparagraph (a) of the definition.
7During the hearing, Mr McLeod’s counsel only made submissions under subparagraph (a) and ultimately withdrew the application under subparagraph (b) of the definition.
The issues before the Court
8It was not in dispute that the injury is question is compensable.
9Mr McLeod’s credit and reliability were not impugned.
10The only issue for determination is what is commonly referred to as “range”. That is, when judged by the range of possible impairments, can the injury be fairly described as “more than significant or marked” and as “being at least very considerable”. Counsel for Mr McLeod ultimately withdrew the claim under subparagraph (b) of the definition.
Summary of findings
11For reasons which follow, I find Mr McLeod has satisfied his onus and I grant his application.
Background
12Mr McLeod was born in Northern Ireland in 1964. He is currently sixty years of age.
13Since he was nineteen years old he has played the acoustic guitar. When living in France, he was a member of a band for approximately seven years. He would also play at home for about thirty minutes daily. Playing the guitar was a form of relaxation, as well as providing him with significant enjoyment. His method was to pick with his right hand using his thumb, index finger and middle fingers together. He played mainly 70’s and 80’s style of music, including the Eagles, REM, Simon and Garfunkel and Meatloaf. In France, he played approximately six or so concerts a year as the guitarist in a choral group working in aged care centres.
14He has a Bachelor of Science from Queen’s University in Belfast and has worked in a range of industries, including as an insurance representative, a cook, a civil servant and bar man.
15Mr McLeod arrived in Australia in 2012 and initially settled in Brisbane. He completed a Certificate III in Commercial Cookery at a TAFE in Brisbane and thereafter has worked as a chef in various cafés, hotels and restaurants.
Injury and treatment
16On 23 May 2022, Mr McLeod was using a Robot Coupe stick blender to purée meat to prepare meals for residents. When cleaning the blade on the blender, he put his right hand on the blade, as he did so the blender turned on, the blade started turning, and sliced his right index finger.
17Following the incident, Mr McLeod was taken to Box Hill Hospital where he underwent the first of two surgeries to repair the finger. He was discharged the following day.
18Following his discharge, Mr McLeod began hand therapy, which he attended twice a week for about twelve months.
19In May 2023, Mr McLeod underwent a second procedure on his right index finger, which involved manipulation and an injection into the joint. Unfortunately, the second procedure did not help the right index finger symptoms and he has since given up on treatment, because he understands that it is unlikely his finger will improve.
Pain and suffering consequences
20After approximately eight weeks off work, Mr McLeod returned to his pre-injury employment. Although he works on a casual basis, he works long hours and is able to work longer if his employer requires it. He has adjusted the way he does a number of activities both at work and in his daily life. Pain is not really an issue for him, it is more the restriction, discomfort and inability to do a number of activities that are the cause of his concern. He described himself as “very right handed”.
21Mr McLeod described these consequences in his affidavits and in his oral evidence. They include the following:
(a) constant discomfort and numbness in the right index finger, which runs from the tip to the middle joint of the finger and down the inside of the finger;
(b) difficulty holding and using a knife at work. Having to hold the knife for a long period of time causes discomfort and pain at times. When he uses knives at work, he is more careful and he works more slowly;
(c) holding onto things for too long with the right index finger causes blood bruises along the finger;
(d) loss of sensation in the right index finger, such that when he touches boiling pots or plates, he cannot feel the heat and this causes blistering;
(e) sharper arthritic-type pain in cold weather;
(f) scarring and loss of grip strength in the right hand, making it difficult to open bottles or lids;
(g) the right finger is not able to be used in any real way. Holding onto cups or handles means the right index finger catches and he needs to be careful and slow down when taking his right hand off the cup handle. As he cannot feel the finger, he does not know where it is, so it drags behind causing injuries;
(h) even smaller tasks, such as opening jars and containers, tying up shoelaces, or doing up buttons with the right hand have become more difficult because of the absence of feeling in the right index finger and the loss of grip strength in that hand;
(i) he is a self-taught guitarist, commencing in his teens. He strums or picks with the right hand and uses his left for frets on the neck of the guitar. He uses the fingers and thumb on his right hand to pick, rather than a plectrum. Since his injury, he has been unable to resume playing guitar in any meaningful way, even with a plectrum. Given that he was a “finger picker”, the loss of feeling in the right finger has meant he has been unable to play at all. Before the injury, he could play “Hotel California” but now he cannot. His attempts to play with a plectrum were unsuccessful because his index finger became caught on the other strings. Mr McLeod accepted my analogy of it being like a pianist unable to strike a key with a particular finger;
(j) therefore, he could not play a tune accurately. Since the injury, he has attempted to play the guitar about six times or so, but has found it very difficult and has now given up. This has had a significant negative impact on him, as music was his passion and a major part of his life. An example of this significant consequence was his inability to play guitar at his stepmother’s funeral. During the funeral, his brother sang and his daughter played guitar, but he was unable. Mr McLeod deposed to being shattered by this.
(k) since the injury, he has also been unable to return to his hobby of home renovations. Prior to the injury, he had renovated a number of properties, including his apartment in France, his partner’s home on Springvale Road and her apartment. He deposed to having performed carpentry, tiling, floor installation and plastering, as well as the installation of cabinetry. Mr McLeod considers that using power tools such as drills, saws and grinders now to be dangerous for him, given the lack of feeling and control in his trigger finger.
22Mr McLeod’s former partner, Tracy Warren, swore an affidavit in support of his application. In that affidavit, Ms Warren corroborated a number of the pain and suffering consequences which Mr McLeod told the Court about. Broadly speaking, they include his previous involvement in renovating properties, his guitar playing and his inability to return to that which she described as a major loss in his life. Ms Warren also described other difficulties, such as cutting himself shaving or suffering little accidents because he cannot hold things properly with his right hand.
Treating medical practitioners
Dr Sally Ng, surgeon
23On 23 May 2022, Dr Ng performed an open PIPJ repair of the FDP and FDS tendons, repair of the ulnar digital artery and nerve, and radial digital artery and nerve. Mr McLeod was placed in a splint and treated with pain medications. He was given time off work to recover.
24Thereafter, Dr Ng regularly assessed Mr McLeod’s progress.
25On 13 December 2022, Dr Ng reported to Mr McLeod’s treating general practitioner, that Mr McLeod had a 45 degrees flexion contracture of the PIPJ in the right index finger, but he was functional at work and was managing all of his tasks. The only issue was his inability to play the guitar due to adhesions in the FDP tendon. It was reported that a tenolysis may be possible, but this would require another few months of hand therapy and may cause possible injuries to the neurovascular bundles that had been repaired in the initial surgery.
26He was otherwise cleared to return to full duties at work.
Associate Professor Michel Leung, plastic and reconstructive surgeon
27On 23 May 2022, Associate Professor Leung conducted an impairment assessment. The current signs and symptoms noted were complaints of numbness in the right index finger from the tip right down to the PIP joint level. With restricted movement in that finger he could use the finger for writing, but had to be careful while cooking due to the decreased sensation. Occasionally, he suffered burns in the fingertip. The scar was tender and he had trouble holding a knife due to that tenderness. Due to the scar, the tenderness, and the decreased sensation, he was unable to play the guitar.
28On examination, Associate Professor Leung noted a flexion contracture affecting the finger and a mild Dupuytren’s contracture in the palm of the hand. There were some calluses at the base of the fingers, more obvious on the right. The scar on the right index finger was about 7 centimetres in length and the scarring was slightly tender. Power grip measured 60 kilograms in the left hand and 45 or 42 kilograms in the right.
29Associate Professor Leung diagnosed partial amputation of the right index finger at the level of the PIP joint due to the accident at work on 23 May 2022. The repair involved both neurovascular bundles and both flexor tendons. The partial amputation is through the PIP joint. There remained significant deformity to the right index finger. There was no plan for further surgery and the condition of the finger was assessed to be stable. In his opinion, the decrease in the grip strength was adequately accounted for due to the loss of range of movement and decreased sensation.
30The applicable impairment range was 75 per cent for the right index finger, converting to a total hand impairment of 15 per cent.[3]
[3]Joint Court Book (“JCB”) 63
Mr John Crock, plastic and reconstructive surgeon
31On 3 May 2024, Mr Crock assessed Mr McLeod. He noted a history that Mr McLeod had been a passionate guitar player and loved doing DIY projects around his home. He had been very upset at his inability to resume these activities.
32Average grip strength was 40 kilograms on the right and 41 kilograms on the left. The right hand was affected by the scars with 3 to 2.5 centimetre limbs running up the index finger on the volar aspect of the finger.
33Mr McLeod reported he found himself suffering injury when his finger contacts hot surfaces or sharp objects. Although he has adapted to his disability, he was conscious of the right index finger every day. While most of his daily activities, including travel and sleep, were not affected, a number of physical activities were compromised because of the stiffness in the right hand and finger.
34Further surgical treatment was contraindicated because of the risk of making the situation worse. Mr Crock reported that:
“… This would even apply to amputation of the digit and in my opinion the risk of neuropathic pain which he currently does not have would be unacceptable and on questioning the things he longs to do now and cannot because of his finger injury (in particular playing the guitar) would not be possible even if he had his finger amputated.”[4]
[4]JCB 74
35The prognosis for the finger was that it was at risk of being traumatised in the course of his life, either by burning or blood, or sharp trauma, which could lead to infection and/or tissue loss which may require specific treatment.
Dr Symon McCallum, pain physician
36On 17 September 2024, Dr McCallum conducted an assessment. Mr McLeod provided a history of discomfort at work around the PIP joint, worse when he uses a knife. It was mild and occurred most days. He had decreased sensation in the finger, which was weak and had decreased grip. He is able to work in his job as a chef. He is able to walk, sit and drive. He avoids using laces, he has shoes that do not need laces. He cannot do DIY projects and does not play the guitar. He is upset about this. He is unlikely to ever recover these abilities.
37On examination, although he had no pain, he was numb to gentle touch and pinprick from the PIP joint distally on the palmar aspect. He had no pain with palpation. He had no allodynia or hyperalgesia. He had a decreased range of movement in the index finger.
38The diagnosis was partial amputation to the right index finger through the PIP joint. He now has a fixed flexion deformity. His finger is weaker than the other fingers and he has numbness. There is a risk of injuring his finger at work due to the lack of sensation.[5]
[5]JCB 83
Dr Murray Stapleton, plastic and hand surgeon
39On 11 February 2025, Dr Stapleton assessed Mr McLeod. He was currently working as a full-time chef and using a knife was difficult. He could not apply pressure to the tip of the right index finger because it was painful to do so. He had lost 1 centimetre of length of what remained of his right index finger and his capacity to manipulate small objects was therefore limited. When he picks up a small object now, he has to oppose the pulp of the palm to the pulp of the right middle finger. He had lost movement of the three joints of the right index finger.
40His hobbies were guitar playing and DIY activities. Because of the right index finger, neither of those activities were now possible.
41On examination, Dr Stapleton noted that 1 centimetre of length of the right index finger and fingernail had been lost and the tip was slightly parrot beaked. This was to be expected from trimming back the finger. For 6 centimetres on the radial, that is, the thumb side of the index finger, there was no sensation. The scar that he had stretches from the radial side of the tip down to the base of the index finger..
42Mr Stapleton considered all of Mr McLeod’s activities were affected by the injury, given he was right handed. That included his hobbies, recreational activities, his capacity to play guitar and his activities in the workplace as a chef. His problems and the limitations of his activities of daily living were consistent with the injury. No more treatment would improve his functioning. Attempts to straighten the index finger which took place on 23 May 2024 made no difference to the deformity. The condition has now reached maximal medical improvement.
The plaintiff’s credit
43In an application such as this, the credit of the plaintiff is often of great importance, both directly and indirectly.
44The opinions of medical witnesses and other experts depend upon what they have been told by a plaintiff and upon his behaviour and performance on examination and testing.[6]
[6]Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi [1998] 4 VR 439 at 448 (per Brooking JA) and Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
45Credit is also important because the Court must be satisfied of the alleged consequences and their impact on the plaintiff’s residual capacity.
46Counsel for the defendant made no real challenge to Mr McLeod’s credit, nor his reliability. During the course of the cross-examination, counsel referred to Mr McLeod as an honest man. At the conclusion of his evidence, Mr Miles indicated he still stands by that characterisation[7].
[7]Transcript (“T”) 29
47From my perspective, Mr McLeod was a straightforward witness who answered questions directly without embellishment or exaggeration. He made appropriate concessions and appeared to me to be doing his best to be as accurate in his answers as possible. For example, he was asked whether, after July 2022, he continued to attend his general practitioner “for a few years”. Mr McLeod clearly said no and he told the Court that he changed clinics in May 2023.[8] It appeared to me that he was careful not to accept propositions put to him without considering carefully whether they were correct or not.
[8]T8-9
48Taking into account the way he gave his evidence and the content of his answers, I formed a favourable impression of Mr McLeod as a witness. I therefore accept what he told the Court about his consequences, restrictions and the effect of the injury on him.
Demonstration
49Prior to the commencement of the evidence, counsel and I viewed Mr McLeod’s hand. The right index finger is permanently bent in towards the palm to approximately 35 to 40 degrees at the distal and middle phalanx. There is scarring on the inside of the finger and white discolouration immediately below the proximal phalanx. During his oral evidence, Mr McLeod was asked to demonstrate making a fist. It appeared he could do so, but with some protuberance of the index finger. The permanent bend in the finger restricted his ability to fully flex it inwards and extend it outwards as he made the fist.
Submissions of the parties
50Counsel for the defendant submitted that many of the indicia present in a pain and suffering case were not present here. For instance, sleep, mobility, cognitive functioning, capacity for self-care, performance of household and family duties and performance of work were not in issue.
51Counsel for Mr McLeod did not dispute this characterisation of the issues in the case.
52It is not in dispute that Mr McLeod is not taking any medication, is undergoing no treatment, and has not been advised to have any further treatment.
53Neither party made any submissions on the expert evidence in the case. It has not been suggested that any doctor or surgeon contradicts Mr McLeod’s account that he cannot return to guitar playing or DIY projects.
54Both parties agreed that the central issues were what the Court makes of the impact of the injury on Mr McLeod’s recreational activities, in particular, the guitar playing and the inability now to carry out DIY projects or renovations.
55Counsel for the defendant submitted that:
(a) Mr McLeod had not really derived income from playing guitar in a band, that sounded more like a voluntary activity in France. He has been in Australia since 2012 and has not been in any sort of band here;
(b) on a proper analysis, Mr McLeod was not a professional renovator; he has renovated or assisted Ms Warren on two renovations in Australia and performed one in France;
(c) he is a man who is now sixty and it is unlikely he would have had much capacity to do renovating into the future in any event;
56Counsel for the plaintiff submitted that:
(a) if the Court accepts Mr McLeod’s evidence at face value, then the loss of enjoyment of his ability to play the guitar on its own becomes a very considerable consequence because it was a lifelong passion. This, it was submitted, was akin to a loss of physical mobility for a very athletic person;
(b) however, that is not the only consequence. Although he has returned to work, his work takes him longer than it used to, he has to work differently, and he suffers pain when he uses a knife;
(c) the numbness and lack of sensitivity in the finger means that he suffers burns and other injuries at work;
(d) he is unable to return to his hobby of renovating homes.
Analysis
57It is not in dispute Mr McLeod suffered a partial amputation of the right index finger at the level of the PIP joint due to the accident at work on 23 May 2022. He underwent a repair which involved both neurovascular bundles and both flexor tendons. The partial amputation through the PIP joint caused significant deformity to the right index finger and decrease in grip strength, both of which contribute to the loss of range of movement and decreased sensation in the finger.
58The medical evidence clearly establishes that the deformity, decreased sensation, and loss of range of movement, are all permanent. He is unlikely to be assisted by any further treatment. Some doctors have provided an opinion that further surgical intervention is contraindicated, as it carries a risk of further damaging the nerve structures of the finger.
59Finding, as I do, that Mr McLeod is a truthful and reliable witness, I accept his account of the limitations and restrictions he now suffers.
60I accept that, while he has been able to return to work as a chef in full pre-injury duties, his performance of these is inhibited to a degree by the restriction of range of movement of the finger. He has adjusted the way he performs some activities, including the use of a knife. He is able to work such hours as his employer requires. Following his initial recovery, he has taken very little or no time off work on account of the injury.
61While he is able to lift pots and pans and open bottles and lids, his work is not without incident on account of the injury. I accept Mr McLeod’s evidence that, due to the lack of sensitivity in the finger, he often suffers from blisters from touching hot items at work. This is also supported by the medical evidence.
62There was no issue that Mr McLeod is not having any ongoing treatment, pain medication or therapy. No doctor has suggested that he needs any such treatment and Mr McLeod frankly conceded that pain was not the issue with his finger.
63The real difficulties for Mr McLeod arise from his inability to return to playing the guitar, which was a source of significant pleasure for him, and the inability to return to performing renovations for himself and his friends.
64I accept Mr McLeod’s evidence that music and playing the guitar was a real passion and an important part of his life. The fact he was involved with playing in a choral group suggests that his abilities were above amateur level. For forty years, Mr McLeod has played the guitar in a variety of circumstances including in band, socially at gatherings, around campfires and after work with a cup of tea to relax.
65I accept he has attempted to play the guitar with a plectrum since his injury, but was unsuccessful.
66I reject the submission that, if he had worked in a band on a voluntary basis, that somehow militates against a finding that his inability to return to playing a guitar is not a serious consequence.
67I reject the submission that he had not played for audiences in Australia, so he had set very high standard for himself in playing guitar at home. In the circumstances, I consider it a very considerable consequence that he is no longer able to play the guitar, even if he was only playing at home or for his friends around a campfire.
68In addition to this very considerable consequence, I consider that his inability to return to performing renovation work, such as using power tools, cutting tiles and performing carpentry work, is also a very considerable consequence. Mr McLeod described having been able to perform very complex renovations of at least three properties in his life. This shows a significant level of skill and ability which he can no longer employ, either in the course of a recreational pursuit or in a more profit-oriented venture.
69Taking the totality of the evidence into account, I am well satisfied that Mr McLeod has discharged his onus of establishing that the injury to his right index finger, when judged by comparison with other cases in the range of possible impairments or losses of a body function, can be fairly described as being “more than significant or marked” and as “at least very considerable”. I grant Mr McLeod leave to bring proceedings for damages for pain and suffering under subparagraph (a) of the definition.
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