Moore v Victorian WorkCover Authority
[2025] VCC 340
•1 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-03983
| JOSHUA MOORE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March 2025 | |
DATE OF JUDGMENT: | 1 April 2025 | |
CASE MAY BE CITED AS: | Moore v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 340 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – amputation injury to tip of the left middle finger – pain and suffering – scarring and disfigurement
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325
Cases Cited:Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Jarvie v Sideliner Contracting Pty Ltd [2024] VSCA 144; Transport Accident Commission v Garcia [2015] VSCA 225; Ingram v Ingram [1996] 2 VR 435
Judgment: Leave granted to the plaintiff to seek pain and suffering damages for the left-hand injury suffered in the incident at work on 30 December 2020.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Johnson | Maurice Blackburn Lawyers |
| For the Defendant | Mr L Howe | IDP Lawyers |
HER HONOUR:
Introduction
1Mr Joshua Moore, the plaintiff, is a thirty-five-year-old packer and warehouse worker. He suffered an amputation injury to the tip of the left middle finger of his dominant hand on 30 December 2020 in the course of his work for Selkirk Pty Ltd (“the employer”).
2Mr Moore seeks leave to bring a common law proceeding for pain and suffering damages pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”). His claim is that he has a “serious injury” of his left hand.
3Mr Moore brings his claim under subparagraphs (a) and/or (b) of the definition of “serious injury” in s325(1) of the Act.
4To succeed in his application pursuant to subparagraph (a), Mr Moore must establish that the permanent impairment consequences of his compensable left-hand injury are “serious”; that is, that they can be fairly described as being “more than significant or marked”, and as being “at least very considerable”.
5To succeed in his application pursuant to subparagraph (b), Mr Moore must establish that he suffers from a permanent “serious disfigurement”.
6The Victorian WorkCover Authority (“the VWA”), the defendant, accepted that Mr Moore suffered a compensable injury to his left hand in the course of his employment.
7The VWA contested the claims pursuant to subparagraphs (a) and (b) on the basis that the claimed consequences did not satisfy the statutory threshold.
8The issues for determination are:
(a) What are the permanent impairment consequences of Mr Moore’s compensable left-hand injury?
(b) Are the permanent impairment consequences “serious”?
(c) Is the disfigurement of Mr Moore’s left hand “serious”?
9The relevant legal principles are well known and were not in dispute.
10For the reasons that follow, I am not satisfied that the permanent impairment consequences of Mr Moore’s left-hand injury satisfy the statutory threshold. I am satisfied that the disfigurement of Mr Moore’s left hand is “serious” when compared with other cases in the range of possible permanent disfigurements. Mr Moore is therefore granted leave to issue proceedings claiming pain and suffering damages.
Background
11The following matters, I believe, are uncontroversial. As far as any were contested, these represent my findings save where otherwise indicated.
12Mr Moore is left-hand dominant. He completed Year 12. Thereafter, he obtained a Certificate III in Telecommunications and worked as a telecommunications technician for five years. He then worked for about two years as a delivery driver and sales representative.
13In 2014, Mr Moore began working for the employer as a packing operator. He progressed to the role of kiln attendant.
14In the incident on 30 December 2020, Mr Moore was attempting to fix a blockage in the “P2 scrubber”.[1] His glove became caught in a rotating shaft and his left hand was pulled into the machine. He suffered injury to the tip of his left middle finger.
[1] Plaintiff’s Amended Court Book (“PCB”) 7
15Mr Moore was taken to the St John of God Ballarat Hospital by a co-worker. He was then transferred to the Geelong Hospital. The injury to the tip of his left middle finger could not be repaired. Mr Damon Thomas, plastic surgeon, performed an amputation from the midsection of the distal phalanx.
16On 18 January 2021, Mr Moore returned to work performing light duties. From 15 February 2021, he was certified fit to return to his pre-injury duties; however, he did not do so as the employer terminated his employment.
17In March 2021, Mr Moore obtained full-time employment at the Ballarat Flour Mill as a packer and warehouse worker. He continues in that employment.
18As for treatment of his left-hand injury, Mr Moore had several sessions of hand therapy at the Geelong Hospital until around March 2021.
19Mr Moore has consulted his general practitioner from time to time. He did not have any hands-on treatment between April 2021 and December 2024. Since then, Mr Moore has had two sessions with Joe Milgate, hand therapist, and has also consulted Dr Akilan Velayudhan, pain physician. No further treatment is planned.
20Mr Moore takes over-the-counter analgesia “as needed”, and Panadeine Forte occasionally.
21He lives with his wife and two young children in Wendouree.
What are the permanent impairment consequences of Mr Moore’s compensable left-hand injury?
22Mr Moore tendered four affidavits sworn by him on 21 February 2024, 30 January 2025, 11 March 2025, and 12 March 2025, and an affidavit from his wife, Sophie Malcolm, sworn on 30 January 2025.
23Mr Moore deposed that he experiences the following impairment consequences:
(a) The finger is sensitive to being knocked or bumped. He experiences pain several times a day. This is worse in colder temperatures, when the finger feels numb. The tip of the finger goes white when it is cold. He takes over-the-counter analgesia as needed and Panadeine Forte occasionally;
(b) Left hand grip strength is reduced, and the capacity to perform fine movements is compromised. His left hand is clumsy, and he can drop things;
(c) He struggles to play with and assist his two young children. This is particularly problematic given that his younger son has cerebral palsy and requires assistance to walk;
(d) Vibrating machinery and gripping for prolonged periods induces pain. He wears an anti-vibration glove frequently;
(e) Writing and typing are compromised;
(f) He was previously an accomplished darts player, and his ability to play darts has been affected;
(g) He was previously a keen indoor and outdoor social cricketer, and whilst he played “a few games” after his injury, he is no longer able to play cricket because of the pain that activity causes in his left hand;
(h) His intimate relations have been compromised because of pain in his left hand.
24Mr Moore was cross-examined as to:
(a) Hand therapy records;
(b) His use of medication and reports of medication use;
(c) His cricket statistics during the cricket seasons since the incident;
(d) His ability to play darts;
(e) His ability to perform household chores and barbeque;
(f) His ability to support and play with his children.
25Ms Malcolm’s affidavit was supportive of Mr Moore’s claimed impairments but was cast in general terms. The VWA did not seek to cross-examine her. I broadly accept her evidence but consider it in the context of my findings as to Mr Moore’s reliability and the evidence as a whole.[2]
Medical evidence
Treating material
[2]Siddel-Whipp v Transport Accident Commission [2020] VSCA 109
St John of God Ballarat Hospital and Barwon Health
26Various reports were tendered which detailed the initial treatment in December 2020.
27Mr Moore was cross-examined with reference to notes of hand therapy consultations in January, February and March 2021.
28From early January 2021, those clinical notes record reports of mild or no pain in the left middle finger, but some hypersensitivity. Mr Moore, understandably, could not remember what he had said during those reviews, but appeared to me to agree with the broad position that he was not experiencing or complaining of any significant pain at that time.
29On 5 March 2021, grip strength testing using a Jamar dynamometer reportedly revealed a grip strength of 34.6 kilograms on the right and 30.8 kilograms on the left.
30In September 2021 and April 2022, imaging was undertaken of the finger to investigate the lump which had appeared at the tip. An ultrasound reported it as:
“… a solid appearing, well defined, rounded lesion within the subcutaneous tissues measuring 7 x 7 x 6 mm …
The appearances are non specific however it could represent a epidermal inclusion cyst.”[3] (sic)
[3]PCB 33
Joe Milgate, hand therapist
31Mr Milgate has seen Mr Moore twice, on 13 December 2024 and 22 January 2025.
32Mr Moore told Mr Milgate that he was still experiencing pain and sensitivity in the left middle finger.
33Mr Milgate thought Mr Moore had some ongoing digital nerve injury and likely Complex Regional Pain Syndrome around the injury site. He opined those issues would probably resolve in time, particularly if he were treated by a pain specialist.
34Mr Milgate opined that Mr Moore had a capacity for full-time work but his capacity to lift and perform tasks involving vibrations may be reduced.
Dr Akilan Velayudhan, pain physician
35Dr Velayudhan has seen Mr Moore once, in February 2025.
36Mr Moore reported experiencing intermittent pain in his left middle finger, which was particularly bothersome in cold weather, causing numbness. Mr Moore reported that pain did not affect his personal activities of daily living but recreational activities and playing with his children could flare up his pain. He said he struggled to lift heavy bags. Mr Moore reported his mood and sleep were not impacted.
37Dr Velayudhan opined that Mr Moore had persistent post-surgical intermittent neuropathic pain in the left middle finger. He thought there was no role for pharmacological management, but suggested Mr Moore see an occupational therapist to explore “modifiable factors” at work. He did not plan to review Mr Moore.
Medico-legal reports
Dr John Anstee, plastic surgeon
38Dr Anstee examined Mr Moore on 20 November 2024 and reported on 16 December 2024.
39Dr Anstee believed the mass on the radial side of the amputation stump was either an inclusion dermoid or a nail remnant. He noted it was tender and interfered somewhat with the function of the finger. He thought that:
“Some of Mr Moore’s discomfort could be relieved by meticulous excision of the nail remnant or inclusion dermoid seen on the radial side of the amputation stump.”[4]
[4]PCB 37
40I accept that Mr Moore does not plan to have the suggested surgery.
41On examination, Dr Anstee noted that Mr Moore did not seem to be exaggerating his problems.
Mr Peter Dixon, hand, plastic and reconstructive surgeon
42Mr Dixon examined Mr Moore on 26 July 2023 for the purpose of an impairment assessment and reported the same day.
43Mr Dixon noted the following on examination:
“At no stage in the examination did Mr Moore manifest abnormal pain behaviour, nor do I consider Mr Moore to have embellished or exaggerated their presentation.
…
… A volar incision in a V shape on the third digit is consistent with the surgical procedure. The terminal segment of the digit is disfigured with soft tissue asymmetry. Sensation of the flap distil segment of the digit is 50% with a 2-point discrimination of approximately 10 mm.”[5]
[5]PCB 42-43
Findings
44There was no issue as to the nature of the injury, or that it was permanent in the requisite sense. That is, Mr Moore suffered an amputation of the distal half of the distal phalanx of his left middle finger of his dominant hand. He has a lump at the site of the amputation measuring 7 x 7 x 6 millimetres.
45Treatment for the injury ceased in about March 2021, save for the recent consultations with Mr Milgate and Dr Velayudhan. The histories noted in those reports, which I accept, indicate that Mr Moore attended to explore options to assist his recovery.
46No further treatment is planned.
47The VWA did not challenge Mr Moore’s credibility but submitted that Mr Moore’s evidence as to his impairment consequences was unreliable, in that:
(a) his account of his level of pain and medication use was inconsistent across his affidavits and oral evidence;
(b) he did not report the use of over-the-counter analgesia to Mr Milgate, Dr Velayudhan, Dr Anstee or Mr Dixon;
(c) Mr Moore’s oral evidence that he decided not to pursue a diploma in accounting because of his left-hand injury ought not to be accepted given that he completed his Certificate IV in Accounting following the incident. Further, if true, that consequence would have been mentioned in an affidavit;
(d) Mr Moore’s oral evidence that he occasionally has days off work due to finger pain ought not to be accepted given that consequence was not mentioned in any one of his four affidavits;
(e) many of the consequences deposed to in Mr Moore’s affidavits were expressed at such a level of generality that it was difficult to discern the precise impairment alleged;
(f) a number of consequences claimed in Mr Moore’s affidavits fell away during cross-examination, such as the capacity to throw and catch a ball with his children, and the ability to barbeque.
48Counsel for Mr Moore submitted that he was a credible and reliable witness. It was submitted his affidavits did not lack specificity.
49I find Mr Moore gave his oral evidence in a candid and straightforward manner. He made concessions against interest; however, there was a difference between his affidavits and his oral evidence. By way of example:
(a) In paragraph 23 of his first affidavit, sworn on 21 February 2024, Mr Moore deposed that he had played “a few games” of cricket since his injury. In paragraph 9 of his second affidavit, sworn on 30 January 2025, he deposed that he continued playing cricket for “a while” after his injury, but had since given the game away because of the pain it induced. During cross-examination, it was apparent that Mr Moore played two games of cricket in the 2020/2021 season (likely following his injury), ten games in the 2021/2022 season, one game in the 2022/2023 season (only one because, he accepted, his youngest child was born in September 2022), and four games in the 2023/2024 season. Mr Moore said, and I accept, he altered his grip when bowling to try and keep the middle finger off the ball. He was able to bowl multiple overs with reasonable success and had a pretty good batting average;
(b) In paragraph 12 of his second affidavit, Mr Moore said that he rarely barbeques because of his left-hand impairment. During cross-examination, Mr Moore accepted he can still cook a barbeque and use tongs with his left hand, albeit that it is more awkward;
(c) In paragraph 14 of his second affidavit, Mr Moore said he was “still reliant on medication” and that he was taking Panadol and/or ibuprofen twice each day for pain. In his oral evidence, Mr Moore said that he had a flare up of pain in December 2024, and his use of medication had since dropped back. He said he took it “as needed”, most days.[6] I accept that Mr Moore, Mr Dixon, Dr Anstee, Mr Milgate and Dr Velayudhan did not report that they were given a history of over-the-counter medication use, but accept Mr Moore’s evidence that, if asked, he told doctors about the use of Panadol;
(d) Mr Moore stated in his oral evidence that he has had days off work due to hand pain. He went on to say that the reason for this not appearing in his affidavit was because he “didn’t see a necessity to exaggerate on it”.[7] I accept that Mr Moore has had some time off work due to his left-hand injury but find that the likely reason it was not in his affidavits is that it has been so infrequent.
[6] Transcript (“T”) 26
[7] T14
50The above matters cause me to have some doubt about the reliability of the extent of the claimed impairment consequences in Mr Moore’s affidavits. I prefer, and broadly accept the impairment consequences Mr Moore described during his oral evidence. Where the nature and extent of those consequences is different to the account in his affidavits, I prefer his oral evidence.
51I find that Mr Moore has the following impairment consequences:
(a) a constant feeling of sensitivity/discomfort in the finger. I accept that “it feels different” to Mr Moore’s other fingers and he tries to keep his fingertip from touching things;[8]
(b) intermittent pain in his left middle finger, particularly in cold weather. He can experience sharp pain if the finger is knocked. He uses one or two tablets of over-the-counter analgesia a few days a week, and Panadeine Forte occasionally;
(c) diminished grip strength in the left hand, and some impairment in fine manipulative tasks;
(d) he experiences pain using vibrating machinery such as a lawnmower, and must wear anti-vibration gloves;
(e) he tries to avoid his children holding his left hand and is protective of his hand when engaging in “rough play” with them. He must be careful about how his younger son takes his left hand when assisting him to walk to avoid causing pain in the middle finger;
(f) he can experience increased pain when batting and bowling in cricket. That has reduced his enjoyment of cricket. He was a social cricketer before the incident. Mr Moore continued playing outdoor cricket in the seasons following the incident but has decided not to continue because of that increased pain. He has not played indoor cricket since suffering the left-hand injury. I find that Mr Moore has the capacity to play social cricket but to a more limited extent and with increased pain. His enjoyment of cricket is significantly reduced. During cross-examination it was suggested to Mr Moore that a reason he no longer played indoor cricket was because of his family responsibilities. I accept his evidence that he no longer plays because of his compensable injury;
(g) his capacity to play, and his enjoyment of, darts has been impacted. As a junior, Mr Moore was in the state reserve team. Prior to his injury, Mr Moore said, and I accept, that his averages were likely good enough to play A Grade Division 1 darts. Mr Moore had been hoping to resume playing darts during the 2020 season, but the COVID-19 pandemic intervened. He continues to play social competitive darts on a weekly basis but has altered the type of dart he uses and has had to change his grip. He won the B Grade Central Highlands Dart League Club Championship in 2024 and hopes to get into A Grade Division 1 darts in the future. I accept that Mr Moore may have been competitive in A Grade darts but for his injury;
(h) his ability to touch type is reduced because he cannot use the left middle finger to type. I accept that Mr Moore was able to complete a further five units of a Certificate IV in Accounting following his injury, albeit with reduced typing speed. Given that, I do not accept that Mr Moore is unable to pursue a Diploma in Accounting due to his left-hand injury;
(i) his intimate relationship with his wife is affected. This impairment consequence was stated in vague terms in Mr Moore’s affidavit and his wife’s affidavit. I therefore attach limited weight to it.
[8] T48
52I am not satisfied that Mr Moore has any significant impairment in his ability to play ball games with his two young children by reason of his left-hand injury, particularly so given his capacity to play cricket and darts since the incident.
53Mr Moore’s left hand remains useful. He continues to be able to perform his activities of daily living, drive, and perform domestic activities with some small adaptations. Mr Moore remains able to work full-time. He was certified fit to perform his pre-injury duties within weeks of the incident. Mr Moore’s mood and sleep have not been impacted. He did not depose to having any difficulty socialising.
Are the permanent impairment consequences “serious”?
54I bear in mind what was said by the Court of Appeal in TTB SMS Pty Ltd v Reading:[9]
“In assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.
…
[9][2020] VSCA 203, at paragraphs [30] and [31]
… The evaluation required of the trial judge, and this Court, involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder. Those other physical impairments may involve constant pain, significant medical treatment and medication. They may involve sleep deprivation, or an inability or reduced ability to socialise or work.”
55I am required to consider what has been lost in the context of what is retained.[10]
[10]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
56It was submitted that Mr Moore is a stoic plaintiff who should not be treated less favourably.[11] I accept that Mr Moore has got on with his life, and persevered with work, domestic and family life. I am not persuaded that Mr Moore is working beyond his capacity or is continuing activities in circumstances where many others would not.
[11]Jarvie v Sideliner Contracting Pty Ltd [2024] VSCA 144 at paragraphs [67]-[69]
57The fact that Mr Moore can continue to work full-time does not preclude a finding that he satisfies the statutory threshold. It is just one matter to consider.[12]
[12]Haden Engineering Pty Ltd v McKinnon (supra)
58I bear in mind that Mr Moore will experience the impairment consequences of his left-hand injury for many years to come.
59In the exercise of the value judgement required of me, and considering the various impairment consequences collectively, I find that it is appropriate to describe them as “significant” or “marked”. I am not persuaded that they can fairly be described as “more than significant or marked and as being at least very considerable” when compared to the range of possible impairments including those which do not come before the Court.
Is the disfigurement of Mr Moore’s left hand “serious”?
60I bear in mind the principles enunciated by the Court of Appeal in Transport Accident Commission v Garcia,[13] although I note that was a case under the Transport Accident Act 1986.
[13][2015] VSCA 225
61For a disfigurement to meet the statutory threshold it must be considered in the context of a serious long-term impairment of a bodily function, severe long-term mental illness or loss of an unborn child.[14]
[14]Ingram v Ingram [1996] 2 VR 435 at 438
62I must consider the physical characteristics of the disfigurement, its location, size and degree of obviousness, as well as Mr Moore’s age.
63There is no dispute that the disfigurement of Mr Moore’s left middle finger is permanent.
64At the start of the hearing, I viewed Mr Moore’s left hand. The condition of Mr Moore’s left middle finger is fairly represented in the following photographs:[15]
[15] PCB 74 & PCB 71
65Mr Moore deposed that he endeavours to hide his left hand where possible. I accept that evidence.
66During his oral evidence, I observed that Mr Moore tends to hold his middle finger above and away from the other fingers of his left hand. I informed counsel that was my observation and invited submissions as to that.
67I find Mr Moore’s tendency to hold his middle finger above and away from the other fingers of his left hand causes the disfigurement to be more prominent than it would otherwise be.
68The left middle finger is shorter than the index and ring fingers of Mr Moore’s left hand. He has a diagonal scar on the palmar surface of the finger and a scar along the side of the finger. The finger has a squared off appearance. There is a 5‑millimetre lump to the side of the top of the finger. The tip of the middle finger is variously paler than the rest of the fingers, and darker. In both respects it stands out significantly from the other fingers of the hand.
69In my view, the disfigurement of Mr Moore’s left middle finger is prominent and readily observable from a distance. As it is on Mr Moore’s dominant hand, his ability to cover or conceal it is limited.
70I bear in mind that Mr Moore suffered this injury when aged thirty-one years, and he is now a man of thirty-five.
71Given the location of the disfigurement, and its various physical characteristics, I am satisfied that the permanent disfigurement is at least very considerable when compared with other cases in the range of possible permanent disfigurements.
Conclusion
72Mr Moore is given leave to seek pain and suffering damages for the left-hand injury he suffered in the incident at work on 30 December 2020.
73I will hear the parties on the issue of costs.
- - -
0
5
0