Na v Victorian WorkCover Authority
[2024] VCC 476
•26 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-04421
| JUN NA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 March 2024 | |
DATE OF JUDGMENT: | 26 April 2024 | |
CASE MAY BE CITED AS: | Na v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 476 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – left thumb injury – loss of bodily function – disfigurement – pain and suffering – credit – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; s325 and s335
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Porto v Design Line Cabinets Pty Ltd (Deregistered) & VWA [2012] VCC 1645; MacDougall v Victorian WorkCover Authority 2021] VCC 1292; Sorrentino v Victorian WorkCover Authority [2022] VCC 581; Razai v Victorian WorkCover Authority [2022] VCC 1732; Robinson v Victorian WorkCover Authority [2023] VCC 1948; Hussain v Victorian Workcover Authority [2023] VCC 2283; Transport Accident Commission v Garcia [2015] VSCA 225; Baker v Transport Accident Commission & Anor [1997] 1 VR 662; Bustos v VWA [2021] VCC 1531; Kalinic v Acron Engineering Pty Ltd [2012] VCC 1052; Griffiths v Transport Accident Commission [2022] VCC 454; Kaos v XL Premix Pty Ltd [2023] VCC 1229
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Shambrook | Maurice Blackburn |
| For the Defendant | Mr N Dunstan | Landers and Rogers |
HIS HONOUR:
Background to the matter
1The plaintiff, Mr Jun Na, is aged thirty-nine years. On 26 April 2020, in the course of his employment with Bray Controls Pacific Pty Ltd (“Bray Controls”), Mr Na’s left thumb was caught in a valve (“the incident”). As a result of the incident, the top of Mr Na’s left thumb was amputated. Mr Na said at that time he was in “horrendous pain”.[1]
[1]Paragraph [16], Amended Plaintiff’s Court Book (“PACB”) 3
2Mr Na was taken by ambulance to the Dandenong Hospital. He was referred to Mr David Ying, plastic surgeon. Mr Na was advised that the tip of his thumb could not be salvaged.
3Mr Ying undertook revisionary surgery at the Waverley Private Hospital the following day.
4Subsequently, Mr Na was referred to hand therapy. Mr Na last attended hand therapy in March 2021. Indeed, that was the last time he attended for any medical treatment for his left thumb and associated injuries.
5Mr Na was off work for approximately two weeks. He then returned to work with Bray Controls, undertaking modified duties. Mr Na received a full medical clearance and returned to normal duties within three-and-a-half months of the incident.
6Mr Na says:
(a) he continues to suffer impaired sensation at the tip of his left thumb and dysfunction;
(b) his left thumb is disfigured.
7Mr Na says his left thumb injury is a serious injury for pain and suffering purposes.
8The Victoria WorkCover Authority (“VWA”), the worker’s compensation insurer for Bray Controls, denies Mr Na has suffered a serious injury.
What is the nature of this proceeding?
9This is an application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Mr Na relies upon both paragraphs (a) and (b) of the definition of “serious injury” in s325(1) of the Act. That is:
(a) his left thumb injury is a “permanent serious impairment or loss of a body function”;
(b) the consequential disfigurement to his left thumb/left hand constitutes a “permanent serious disfigurement”.
10For Mr Na to be successful, he must establish that the consequences from his left thumb injury and/or the disfigurement, 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 to s325(2)(c) of the Act.
What are the issues for the Court to determine?
11The VWA conceded Mr Na suffered a compensable injury. Indeed, the VWA said Mr Na’s injury was “not trivial”. These concessions being made, the VWA said:
(a) Mr Na’s credit was in issue;
(b) both heads of Mr Na’s application were “range cases”;
(c) Mr Na had not discharged the onus and did not satisfy the “serious injury” test.
12Thus, the issues for the Court to determine include:
(a) as to Mr Na’s credit and reliability and whether I can accept his evidence;
(b) which of the medical opinions should be accepted and the assistance which they provide;
(c) does Mr Na’s left thumb injury satisfy the “serious injury” test pursuant to subsection (a);
(d) does Mr Na’s disfigurement satisfy the serious injury test pursuant to subsection (b).
What conclusion does the Court reach in respect to Mr Na’s credit?
13As in a great number of cases of this type, Mr Na’s credit and reliability is of critical importance.[2]
[2]See for example the analysis of the Court of Appeal in Johns v Oaktech Pty Ltd [2020] VSCA 10, particularly at paragraph [76].
14The VWA said Mr Na had, in his affidavit evidence and in some histories to doctors, exaggerated the consequences of his injury.[3]
[3]Transcript (“T”) 47, Line (“L”) 9-16.
15Before I take my analysis of this criticism further, I accept, when giving his oral evidence, Mr Na:
(a) presented in a straightforward manner;
(b) made many concessions against interest.
16Having said this, I must acknowledge there were discrepancies between some aspects of Mr Na’s affidavit evidence and his histories to doctors, and the video shown to the Court and Mr Na’s own oral evidence.
17Referring firstly to the video. It showed Mr Na undertaking various activities including:
(a) using his mobile phone with his left hand;
(b) carrying his young child;
(c) using a baby stroller.
18Mr Na, in his oral evidence, did not deny he had the capacity to do, and, in fact, indeed did undertake such activities.
19I make particular reference to Mr Na’s use of his mobile phone shown in the video.
20Mr Na clearly used his left thumb in the course of using his phone. There were no apparent difficulties. Indeed, he used his left hand to the exclusion of his right and dominant hand. That can be contrasted to:
(a) paragraph 46 of his affidavit evidence,[4] where he deposed “I often struggle to use my mobile”;[5]
(b) his history to Dr Murray Stapleton.[6]
[4]PACB 8
[5]Paragraph [46], PACB 8
[6]PACB 41
21Where there is a conflict between Mr Na’s affidavit evidence and his history to doctors and his oral evidence, it is Mr Na’s oral evidence which I prefer.
22Having said that, there were aspects of Mr Na’s oral evidence which did not fit comfortably with the video evidence.
What aspects of the medical evidence should be accepted and what assistance does such evidence provide?
The treating medical practitioner evidence
23I had very limited material from Mr Na’s treating medical practitioners. It consisted of:
(a) The operation report of 29 April 2020.
(b) A three-line letter from Ms Katie Punter, physiotherapist, seeking gardening assistance for Mr Na. That was of no assistance to me.
(c) The clinical records of Mr Na’s hand therapy from Re-wired Hand Therapy.
(d) The clinical records of Mr Ying.
24I did not have the benefit of any Order 33-compliant medical reports from either Mr Ying or the hand therapist who provided Mr Na’s hand therapy.
25I note from the medical records:
(a) The final consultation note of Mr Ying, which records:
“CONSULTATION RECORD: Mr Jun Hyung NA
Date: Friday, 02/10/2020 3:53 PM
Presenting Problem: David Ying Notes
Provider: Mr David Ying
History: seen with Terri
5 months
nearly recoveredstarting new job in a week
certificate of clearance”[7]
[7]PACB 92
This clinical record is consistent with Mr Na having made a very good recovery.
(b) Mr Na attended Re-wired Hand Therapy for a total of nineteen appointments. There were no clinical records setting out any assessment, treatment or functional outcome. Mr Na’s last attendance with Re-wired Hand Therapy was 10 March 2021.
The medico-legal evidence
26Moving now to the medico-legal evidence.
27I had two reports:
(a) Dr Darrell Nam, plastic, reconstructive and hand surgeon, 6 April 2022;[8]
(b) Dr Stapleton, plastic and hand surgeon, 17 January 2024.[9]
[8]PACB 96
[9]PACB 39
28Moving firstly to Dr Nam.
29Dr Nam assessed Mr Na for the VWA on 6 April 2022.
30Of the relevant history, Dr Nam said:
(a) the tip of Mr Na’s left thumb was unsalvageable;
(b) Mr Ying undertook surgery at the Waverley Private Hospital the day after Mr Na’s injury;
(c) the injury involved amputation of the tip of the left thumb halfway through the nail, leaving some exposed distal phalanx. This was repaired by an advancement flap from the pulp and a full-thickness skin graft taken from Mr Na’s left wrist crease to close the defect created proximally;
(d) Mr Na resumed his normal activities about three months after the injury.
31Dr Nam recorded that Mr Na told him:
(a) his dexterity has been “vastly altered” because of loss of feeling in the tip of the thumb;
(b) he experiences cold intolerance;
(c) he has moderate weakness in the wrist.[10]
[10]Paragraph [1.3], PACB 98
32Dr Nam, at the time of his clinical examination, noted:
(a) The amputation of the tip of the left thumb, which he said was now about 0.5 centimetres shorter.
(b) There was a level of amputation halfway through the fingernail. There was loss of nail bed distally, and the nail growth is stunted.
(c) The two-point discrimination is not normal and falls within the category of partial loss of feeling.
(d) Scarring is “relatively inconspicuous”.
(e) There is a scar of about 4 centimetres over the wrist crease. This scar, which is the donor site for skin grafting, “has no special characteristics”.[11]
(f) Movement of the left thumb is within normal limits.[12]
[11]Paragraph [2.0], PACB 98
[12]PACB 98
33Dr Nam said Mr Na’s injury had stabilised and the prognosis was good.
34Moving now to Dr Stapleton.
35Dr Stapleton assessed Mr Na for his solicitors on 21 December 2023 via Telehealth.
36Dr Stapleton obtained a similar history to Dr Nam.
37Of Mr Na’s current status, Dr Stapleton said Mr Na told him:
(a) his left hand is not painful;
(b) the problem was mainly awkwardness of the left thumb because of:
(i)a lack of 5 millimetres of thumb length;
(ii)reduced sensation.
(c) his dexterity is “very poor”;
(d) there is sensory loss over the flexor surface of the thumb;
(e) the power of the grip is diminished;
(f) he favours his right hand;
(g) activities involving his mobile phone and typing on the phone are “much more difficult”.[13]
[13]PACB 40-41
38Mr Stapleton said:
(a) there was no loss of any range of movement of the joints of the left thumb;
(b) the condition had reached maximum medical improvement.[14]
[14]PACB 41
39Referring specifically to golf, Dr Stapleton recorded Mr Na’s complaint that playing golf is more difficult and he was nowhere near as efficient.[15]
[15]Ibid
Conclusions from the medical evidence
40From the medical evidence I accept:
(a) Mr Na suffered a partial amputation of the tip of his left thumb of approximately 5 millimetres;
(b) subsequent to the revisionary surgery, Mr Na’s left thumb:
(i)is bulbous in appearance;
(ii)has a deformed fingernail;
(iii)has a level of scarring;
(c) there is impaired sensation at the tip of the left thumb;
(d) movements of the left thumb joints are within normal limits;
(e) there is a 4-centimetre scar over the left wrist crease.
41Of importance is Dr Stapleton’s history that Mr Na said he suffers no ongoing pain.
42There are aspects of the histories which Mr Na provided to the medico-legal assessors, which I do not accept as accurate.
The inspection
43After Mr Na’s affidavits were tendered into evidence by Ms Shambrook, and prior to Mr Dunstan’s cross-examination, I undertook an inspection of Mr Na’s left hand and in particular:
(a) his left thumb;
(b) the donor site scar.
44
What follows is a diagram which I prepared immediately after the inspection:
45For completeness, I note that I also had in evidence a series of photographs which were:
(a) annexed to Dr Nam’s report;[16]
(b) annexed to Dr Stapleton’s report.[17]
[16]PACB 35-36
[17]PACB 44-51
46I observed:
(a) The left thumb was more bulbous in shape than the right thumb.
(b) When comparing Mr Na’s thumbs, the left thumb was shorter. It was my estimation, without measuring, this was approximately 3 millimetres (I note Dr Nam’s assessment of .5 centimetres).
(c) There are two scar lines on the top of the left thumb which are only visible on very close examination. Both could pass as a skin crack or a minor cut or irritation. They are some 6-7 millimetres in length.
(d) There is a ridge of scarring mid thumb. This only comes to your attention at close examination.
(e) The left thumbnail is thicker. This was more apparent when looking at the fingernail from the top.
(f) There is a scar on the underside of the left wrist which is the donor site. This scarring is located within the normal skin lines/wrinkles.
47In summary, as far as the disfigurement goes:
(a) as long as the left and right thumb are not held together for inspection, I do not consider the length discrepancy to be of such moment that, on normal interaction, you would become aware of any discrepancy between the two;
(b) while the left thumb is more bulbous in shape, that, in itself, is not so striking to bring it to your immediate attention;
(c) while the scarring on the underside of the left wrist is apparent on direct examination, I do not consider it to be such that it would be readily obvious on a normal day-to-day interaction.
48Moving now to the physical sequelae. Mr Na said, in the course of the inspection:
(a) The tip of the left thumb was “pretty numb”. In the course of the inspection, Mr Na referred to an area right at the top of the tip of the left thumb.[18]
(b) There was quite restricted movement.[19]
(c) The strength of the left hand was less than what it was.[20]
(d) There was sensitivity to cold.[21]
(e) His fine motor skill was impacted.[22]
[18]T8, L24
[19]T9, L15
[20]T10, L12
[21]T10, L10
[22]T10, L13-18
49Having heard Mr Na outline his various complaints, I asked him to:
(a) Lift the Court microphone with his left hand. He did. He said there was no impact from his injury.[23] From my observation, there was no obvious impairment.
(b) Pick up his cup of water. Again, Mr Na said he had no problems and that was fine.[24] Again, from my observation, there was no obvious impairment or difficulty.
(c) Do up a button on his shirt. Mr Na said that “can be a little struggle”.[25] I accept that to be so.
[23]T10, L22-23
[24]T10, L24-25
[25]T10, L27
50At Mr Dunstan’s request, Mr Na demonstrated that he was able to undertake a pincer grip with his left thumb and index finger.[26]
[26]T11, L4-11
51At Ms Shambrook’s request, I observed the tattoo which Mr Na has on his left arm.
General comments about the “serious injury” test
52Before moving on to my specific analysis of each head of Mr Na’s application, I will make some general comments about the test which I am to apply.
53It is Mr Na who bears the onus of proof.
54To establish serious injury, the threshold is high.
55As set out in Stijepic v One Force Group Aust Pty Ltd & Anor,[27] while the evidence may disclose pain and suffering consequences which are both marked and significant, for Mr Na to be successful I have to be persuaded that the consequences due to the left thumb injury and/or disfigurement can fairly be described as being “more than significant or marked” and being “at least very considerable”.
[27][2009] VSCA 181
56As the Court of Appeal said in Ellis Management Services Pty Ltd v Taylor,[28] in range cases such as this:
“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. … .”[29]
[28][2013] VSCA 326
[29](Ibid) at paragraph [59]
Is Mr Na’s left thumb injury a serious injury for pain and suffering purposes?
57Moving now to my assessment of Mr Na’s paragraph (a) application.
58I note Mr Na:
(a) is right handed;
(b) had no pre-existing impairment or problems with his left thumb.
59The process to be followed in the assessment of pain and suffering consequences was considered by the Court of Appeal in the much-quoted case of Haden Engineering Pty Ltd v McKinnon.[30] It is the observations made by Maxwell P that provide me with assistance in respect to the task which I am to undertake.[31]
[30](2010) 31 VR 1
[31](Ibid): see in particular Maxwell P at paragraphs [9]-[17]
60As a part of my analysis, I must give consideration, not only to what it is that Mr Na says that he has lost, but also what it is that he has retained.[32]
[32]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
61Referring firstly to pain.
62Mr Na agreed, in the course of his oral evidence, that he does not suffer pain in his left thumb.[33]
[33]T13, L14-15
63That is consistent with what Mr Na told Dr Stapleton.
64Mr Na ceased hand therapy in March 2021. He has had no treatment for his left thumb/hand since that time.
65That Mr Na has no pain in his left thumb/hand and receives no treatment, tends against a finding of serious injury.
66Having noted that it is not pain, but rather impaired sensation and Mr Na’s assertion of lost movement, which he says leads to the disabling effect on his physical capacities and enjoyment of life, I will proceed on my analysis on this basis.
67I accept that Mr Na does have impaired sensation at the tip of his left thumb. From my inspection and the discussion with Mr Na at that time, it is a confined area. Indeed, it is a small area.
68I am less certain that there is any decreased movement. Both Dr Nam and Dr Stapleton said Mr Na’s left thumb movement was “within normal limits”. From my inspection, if there is any loss of movement of the left thumb, it is marginal. Certainly, there is no impairment on Mr Na’s pincer motion.
69I am not convinced, in functional terms, there is any significant loss of motion, or, if there is, it is of any real consequence.
70I gain comfort in this conclusion from the video evidence.
71Moving now to work.
72Mr Na was cleared for full duties within three-and-a-half months of the incident.[34] Mr Na has been cleared for full duties ever since.[35]
[34]T12, L30
[35]T13, L1
73Mr Na changed jobs in or around October 2020. He now works as a regional facilities manager.[36] This is a position in which he has been successful. Mr Na said he has been promoted and his pay increased.
[36]T20, L8
74Mr Na, however, maintained he did have some impaired work capacity. Mr Na said he would have difficulties should he opt to return to work in the field of an automotive technician, this being work which he undertook in New Zealand, but in which he has not been involved for many years. He said that career option was a “fall back” which was now lost to him.
75It is clear Mr Na has many transferable skills. In addition to his current role as a facilities manager, he has worked in other vocations. For example, as a:
(a) train driver;
(b) forklift driver;
(c) storeman.
76In as far as permissible pursuant to paragraph [15] of Haden, I give limited weight to any impact on Mr Na’s work capacity.
77Moving now to sleep. There was no evidence of any current sleep impairment. Likewise, there was no evidence of any impact of Mr Na’s injury upon:
(a) mobility;
(b) cognitive function;
(c) social life.
78While there was a bland assertion in his affidavit evidence that Mr Na’s sexual life had been impacted, there was no real detail, and I accept the VWA submission that no real weight should be given to that alleged consequence.
79Moving now to self-care and self-management.
80Mr Na is independent in respect to self-care and self-management. That is evident. At most, his left thumb injury has some very limited impact and inconvenience. For example:
(a) doing up buttons;
(b) squeezing a tube.
81No other consequences were given or relied upon.
82That there is no significant impact on Mr Na’s capacity for self-care or self-management tends against a finding of serious injury.
83Moving now to the performance of household and family duties.
84Mr Na said his capacity to undertake household and family duties was impacted. For example, he said:
(a) Cooking was impacted. Mr Na identified peeling vegetables or taking the skin off a mandarin.
(b) Assisting with his young child.
85Having said that, Mr Na conceded:
(a) he still does a lot of cooking;[37]
(b) he looks after his son “[a] lot”.[38]
[37]T13, L17
[38]T14, L12
86I acknowledge there may be some circumstances where the impaired feeling at the tip of his thumb creates a level of awkwardness or may impact upon some aspects of cooking. However, Mr Na did not resile from the fact that he still cooks. I give only very limited weight to this consequence.
87Moving now to the care of his young child. Again, I accept there may be some tasks where the loss of sensation may create a level of awkwardness. For example, changing a nappy. However, I must balance this with what I saw in the video. The video showed Mr Na:
(a) generally carrying and handling his young child;
(b) putting together the baby stroller and packing it up;
(c) placing his young child in and out of the stroller.
It was my observation that Mr Na was handling his young child with confidence and skill, and with no obvious restriction.
88I do not accept there is great impediment to Mr Na in his capacity to care for his young child.
89The level of Mr Na’s retained capacity to perform household and domestic activities tends against serious injury.
90Moving to recreational activities.
91In the course of the application there was significant focus on Mr Na’s:
(a) enjoyment of golf;
(b) capacity to restore and maintain his project car;
(c) capacity to use his mobile phone with his left hand.
(“The principal complaints”).
92Going firstly to golf.
93Mr Na, in his affidavit evidence, made much of the impact of his left thumb injury on his golf. Mr Na described his golf as his “passion”.
94In Mr Na’s oral evidence, the impact of his left thumb injury on his golf game became much more nuanced, and, to use my terminology, “watered down”. In the course of his oral evidence, Mr Na’s golf game was split into three aspects:
(a) his long game;
(b) his short game;
(c) putting.
95Mr Na conceded that his left thumb injury did not impact his:
(a) short game;[39]
(b) putting.[40]
[39]T17, L8-10 and T18, L6-8
[40]T16, L27 and T18, L6-8
96Thus, it was only his long game which was said to be impacted. Mr Na said he no longer had the same level of control. Having said that, he conceded he had not sought advice from a golf “pro” to see if this could be remedied.
97It became clear to me that Mr Na was not playing golf as much in recent times because of his (not unreasonable) commitment to his young child and family. However, it also became very clear that Mr Na intended to return to golf and intends to increase the frequency he plays golf.[41] Indeed, he said he was “rapt” his wife had given him permission to increase his frequency playing golf.[42]
[41]T24, L23-27
[42]T24, L20-27
98It is my observation of Mr Na that his enthusiasm for golf, and his stated desire to resume playing a lot more golf, has not been dulled by his left thumb injury.
99For completeness, I note the evidence of Mr Hojin Choi. Mr Choi’s evidence took it no further than what I have already accepted: Mr Na is very keen on his golf.
100Given Mr Na’s concession that his short game and putting are not impacted, the VWA submitted that Mr Na’s reliance on golf as a significant consequence was diminished. I agree.
101I turn now to the project car.
102In his affidavit evidence, Mr Na set out in detail the enjoyment which he said he obtained from his project car. He said that enjoyment had been diminished. Mr Na said, due to his left thumb injury, undertaking work on his project car went from being satisfying to being frustrating. Mr Na said, as a result, he had sold the project car.
103In his oral evidence, Mr Na explained that he struggled with various tasks which required dexterity.[43] He said there were some tasks he can still do, but there were other tasks which, by reason of his impaired fine motor skills, he cannot undertake.[44]
[43]T19, L29-31
[44]T19, L24 – T20, L3
104I accept that, for some activities requiring the use of his left thumb for fiddly tasks, the loss of sensation at the tip of the thumb may be an issue. However, I do not accept that the left thumb injury impacts on what I would classify as “non-fiddly jobs”. Indeed, I accept that Mr Na has retained the capacity to undertake a wide range of tasks on his project car and/or cars generally.
105I do not accept that Mr Na, in a general sense, is precluded from the majority of activities associated with working on cars.
106Going now to the use of a mobile phone.
107In his affidavit evidence, Mr Na said he struggled to use his mobile phone.[45] He told Dr Stapleton using a phone was “very much now more difficult”.[46]
[45]Paragraph [46], PACB 8
[46]PACB 41
108This evidence can be contrasted with the video evidence.
109The video showed Mr Na using his left hand to operate his phone to the exclusion of his right. Mr Na was using his left thumb.
110When challenged in cross-examination, Mr Na conceded he could still use his left thumb to type on his phone.[47]
[47]T14, L3-14
111I consider this to be a significant concession. The video of Mr Na using his left thumb while operating his mobile phone, and his concessions when giving his oral evidence, tends against a finding of serious injury. The level of dexterity needed to type using his left thumb on a mobile phone is not insignificant.
112There are also other aspects of the video which I consider tend against a finding of serious injury.
113In respect to Mr Na’s dexterity generally, I refer to the video at approximately 9:05am/2:32 minutes. The video showed Mr Na using his left hand/thumb to grip the tab of a zipper on his jacket pocket and close it. I was not taken to, nor did I detect, any impaired function at that time. This was a task involving fine motor skills.
114Likewise, the video of Mr Na handling his young child and putting together/dismantling the stroller. I was not taken to, nor did I identify, any impaired function of his left thumb at that time.
115Indeed, in general terms, I was not taken to by Mr Na’s counsel, nor did I identify, any impaired left thumb function being exhibited by Mr Na in the course of the video evidence.
116I accept the level of activity and the use by Mr Na of his left hand depicted in the video tends against a finding of serious injury.
117As noted earlier in this judgment, I must take into account not only what Mr Na says he has lost, but also what it is that he has retained. I accept this principle has significant application in this matter. Mr Na:
(a) Was cleared to return to his pre-injury work within three-and-a-half months of the incident.
(b) Has successfully obtained new employment in which he has obtained promotion and pay increases.
(c) Is able to live independently and tend to all his self-care and self-management needs.
(d) Continues to cook and undertake a range of normal household activities.
(e) Does “a lot” in the care for his young child.
(f) Has returned to golf. The only limitation is some impact on his long game. In this context, I note, specifically, that he is “rapt” to be spending more time playing golf.
(g) Can use his left thumb to type on his mobile phone.
(h) I accept has retained capacity to undertake many tasks on his project car/cars generally.
(i) Did not lead any evidence that his social life has been impaired.
(j) Mr Na has retained significant capacity and normality in his life.
118In assessing Mr Na’s application, I am conscious of the need to assess his left thumb injury in comparison to other cases. Indeed, the VWA referred me to the matter of TTB SMS Pty Ltd v Reading,[48] which they said I should take into account.
[48][2020] VSCA 203
119There have, over the years, been many finger/hand injury cases before this court. I have undertaken a review. They are too numerous to reference them all in this judgment. I refer to a sample:
(a) TTB SMS Pty Ltd v Reading:[49]
The applicant suffered injury to his right little and ring fingers, which were surgically repaired. The applicant returned to work. The applicant took over-the-counter medication once or twice per week. The application was unsuccessful.
(b) Porto v Design Line Cabinets Pty Ltd (Deregistered) & VWA:[50]
The applicant suffered partial amputation to the ends of his middle and ring fingers of his right hand. The applicant was successful.
(c) MacDougall v Victorian WorkCover Authority:[51]
The applicant suffered a crush injury to the left index finger. He underwent surgery to repair the finger. He returned to work. The applicant was unsuccessful.
(d) Sorrentino v Victorian WorkCover Authority:[52]
The applicant suffered a laceration to her left little finger, resulting in damage to the sensory nerve. She was twenty-four years of age at the time of the injury. The applicant was successful.
[49]Ibid
[50][2012] VCC 1645
[51][2021] VCC 1292
[52][2022] VCC 581
120I have had cause to determine numerous applications involving finger/hand injuries. I refer to:
(a) Razai v Victorian WorkCover Authority:[53]
The applicant suffered an amputation of his right index finger when it was struck by a band saw. Surgery was undertaken to reattach the finger. He was a young man. The applicant was successful.
(b) Robinson v Victorian WorkCover Authority:[54]
The applicant’s left thumb was amputated through the middle and bottom sections after being struck by the blade of a saw. Surgery was undertaken to reattach the amputated section. While the amputated section was viably reattached, the applicant continued to suffer ongoing pain, impaired function, and disfigurement. The applicant was successful.
(c) Hussain v Victorian Workcover Authority:[55]
The applicant sustained an injury to his right index finger. It was crushed by a piece of steel. The applicant said he had ongoing pain, impaired sensation and impaired function. The applicant was unsuccessful.
[53][2022] VCC 1732
[54][2023] VCC 1948
[55][2023] VCC 2283
121While I am assisted by each of the matters referred to, it is of course trite to say that each application must be determined on its own facts and circumstances.
122Having considered all of the evidence, and while accepting some aspects of Mr Na’s life are impacted by his left thumb injury, I do not accept such consequences go beyond “marked” or “significant”. I do not accept such consequences are “very considerable”.
123Mr Na’s paragraph (a) application fails.
Is Mr Na’s disfigurement a serious injury for pain and suffering purposes?
124I now move to Mr Na’s paragraph (b) application.
125Going firstly to the legal principles specific to disfigurement applications.
126The seminal Court of Appeal decision on disfigurement is the Transport Accident Commission v Garcia.[56] 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. Regard must be had to the location, size and degree of obviousness of the disfigurement.
[56][2015] VSCA 225
127Turning now to the disfigurement itself. As I have previously said, I undertook a careful inspection of Mr Na’s left hand and wrist in the course of the application.
128I refer to my observations set out in paragraph 43 to 47.
129While it was not raised by either party in the course of the application, I accept that I can aggregate the disfigurement suffered by Mr Na flowing from the incident.[57]
[57]Baker v Transport Accident Commission & Anor [1997] 1 VR 662
130Going firstly to the left thumb. I accept the left thumb:
(a) is reduced in length;
(b) has a bulbous appearance;
(c) has a level of scarring;
(d) there is some abnormality to the fingernail.
131However, I formed the view that, if the injuries to the left thumb were not specifically brought to your attention, you may not necessarily become aware of these consequences.
132True, it is, when Mr Na puts his two hands together and attention is brought to the discrepancy, you will appreciate the difference. However, I am not convinced that, in the normal course of life, the cosmetic deformity to Mr Na’s left thumb, given the location and size, is such that attention will necessarily be brought to it. The disfigurement is not that obvious.
133Secondly, referring to the scarring on the underside of Mr Na’s left wrist.
134If brought to your specific attention, you would say “yes, there is scarring”.
135Again, however, in the course of day-to-day life, I am not convinced that, in general terms, this scarring is such that it would immediately catch your eye. Indeed, I accept that Mr Ying did a good job blending the donor site scar into the natural crease line of the underside of the wrist.
136It is appropriate that I note, in the course of my inspection, Mr Na showed me his left arm tattoo. The tattoo is of importance to Mr Na, given his cultural background.
137Mr Na said, in his affidavit evidence, that people tend to look at his tattooed left arm, and it is then his perception that people see his disfigured left thumb.[58]
[58]Paragraph [11], PACB 12
138I appreciate that Mr Na may have formed such a view and that he generally finds the disfigurement and scarring to be distressing. I accept this distress to be something which I must factor into my assessment.
139As in Mr Na’s paragraph (a) application, I am conscious of the need to assess his disfigurement in comparison with other cases. Again, over the years, there have been many disfigurement applications before this court. I have undertaken a review. Again, they are too numerous to reference all in this judgment. I refer to a sample:
(a) In Garcia, the applicant suffered scarring to his left upper arm. It was said to be plainly large, unsightly and in a prominent position. The applicant was successful.
(b) In Bustos v VWA,[59] the applicant suffered 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 applicant was unsuccessful.
(c) In Kalinic v Acron Engineering Pty Ltd,[60] the applicant suffered scarring to his left leg. The scarring was large, measuring 17 centimetres x 2 centimetres. It was said to be well healed. The applicant was unsuccessful.
(d) In Griffiths v Transport Accident Commission,[61] the applicant suffered scarring to his face. The scars were said to be prominent and obvious. The applicant was successful.
(e) In Kaos v XL Premix Pty Ltd,[62] the applicant suffered scarring over his right wrist. The scars were prominent and obvious. I determined that the disfigurement did constitute a serious injury.
(f) In Nelson v Transport Accident Commission,[63] the applicant suffered scarring to her left shoulder. The scar measured approximately 9.5 centimetres and was visible, but well healed. I determined that the disfigurement did not constitute a serious injury.
[59][2021] VCC 1531
[60][2012] VCC 1052
[61][2022] VCC 454
[62][2023] VCC 1229
[63][2023] VCC 1575
140Putting Mr Na’s disfigurement into the context of these cases, I consider, by comparison, Mr Na’s disfigurement can be best characterised as being of the level where the applicants were unsuccessful, rather than those matters where the applicants were successful.
141While I accept Mr Na’s left thumb is disfigured, and there is scarring on the underside of his left wrist, and while I accept the disfigurement consequences to Mr Na may be “marked” or “significant”, I do not accept the disfigurement is so obvious and unsightly, and the consequences are such, that it is “very considerable”. This aspect of Mr Na’s application also fails.
Consequential orders
142I shall hear from the parties in respect of the consequential orders arising out of this judgment.
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