Naguib v VWA
[2017] VCC 1710
•23 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-01048
| FADY NAGUIB | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 November 2017 | |
DATE OF JUDGMENT: | 23 November 2017 | |
CASE MAY BE CITED AS: | Naguib v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1710 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – disfigurement – scarring – injury to the head – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Ingram v Ingram & Anor [1996] 2 VR 435; Baker v Transport Accident Commission [1997] 1 VR 622; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Storto v DJW Management Pty Ltd [2015] VCC 1759; Garcia v Transport Accident Commission [2015] VCC 140; Transport Accident Commission v Garcia [2015] VSCA 225
Judgment: Leave granted to bring proceedings for pain and suffering damages.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Arnold Thomas Becker |
| For the Defendant | Mr T Ryan | IDP Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with PKB Security Services Pty Ltd (“the employer”) on 20 May 2010 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (b) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(b) permanent serious disfigurement.”
4 Originally, the plaintiff’s application also included a claim pursuant to clause (a) in relation to cognitive impairments/headaches, and clause (c) in relation to psychiatric impairment. However, in opening, counsel for the plaintiff indicated the application related solely to clause (b).[1]
[1]Transcript (“T”) 1
5 In circumstances where the plaintiff’s affidavits largely described the consequences of physical and psychiatric injuries, counsel for the defendant submitted proceeding with only the clause (b) application was very much indicative of the scarring “taking a back seat” role.[2]
[2]T39
6 However, as I indicated, I did not accept this submission, given the non-controversial, specific nature of an impairment pursuant to clause (b).[3] Further, by their very nature, applications pursuant to clause (b) “are not something about which one can dilate at length”.[4]
[3]T40
[4]Transport Accident Commission v Garcia [2015] VSCA 225 at paragraph [30]
7 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
8 The impairment of the body function must be permanent.
9 The plaintiff bears an overall burden of proof upon the balance of probabilities.
10 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
11 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.[5]
[5]Ingram v Ingram & Anor (1996) 2 VR 435 at 438 where Callaway J applied these principles to a clause (b) application
12 Section 38(h) provides the psychological/psychiatric consequences of a physical injury are only to be taken into account for the purposes of an application pursuant to clause (c).
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[6] and Grech v Orica[7] in reaching my conclusions.
[6](2005) 14 VR 622
[7](2006) 14 VR 602
14 The plaintiff relied upon two affidavits and gave viva voce evidence during which I viewed his scarring and disfigurement. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
15 The plaintiff is presently aged thirty-two, having been born in Egypt in February 1985. He currently lives in a seven-bedroom share house in Melbourne.
16 The plaintiff completed secondary school and went to university in Egypt, where he obtained a Bachelor Degree in Information Technology, completing the course in 2004. He then worked full time as a computer engineer, until coming to Australia in 2007.
17 The plaintiff came to Australia to study for a Masters in Computer Programming at Swinburne University (“the Masters course”). Prior to commencing this course, he undertook further English study at RMIT.
18 While in Melbourne, the plaintiff studied full time and worked part time as a security guard to support himself. On average, he worked about twenty hours a week. One of the security companies the plaintiff worked for was the employer.
19 The Masters course could be completed in a minimum of two years. Prior to the said date, the plaintiff was halfway through the course and achieving good results. However, the course was taking him a little longer than the minimum time, because he was having to work to support himself.
20 On the said date, while in the course of his employment with the employer working at Toll Logistics in Campbellfield, the plaintiff suffered injury when a roller door came down unevenly and landed on his head (“the incident”).
21 The plaintiff was subsequently advised that the bottom section of the roller door had come free, and fallen and struck him. He was advised it took three people to lift and move the section of the door which had struck him.
22 Following the incident, the plaintiff felt very dizzy, and his vision came and went. He managed to get to the gatehouse and, there, an ambulance was called and took him to the Royal Melbourne Hospital (“the Hospital”).
23 The plaintiff had surgery to his skull at the Hospital, and was discharged home on 4 June 2010. At that time, he felt dizzy, nauseous and weak.
24 In his affidavits, the plaintiff described flashbacks and nightmares, headaches and cognitive difficulties following the incident. As this application only relates to disfigurement and scarring resulting from the head injury, the evidence in relation thereto will be focused upon.
25 When the plaintiff was discharged from the Hospital he still had staples and stiches in his head. He returned a few days later to have them removed. He later underwent a neuropsychological assessment at the Hospital. He believed his last review in respect of his injury was in August 2010.
26 All treatment has been undertaken at the Hospital and the plaintiff’s general practitioner has not been involved in any treatment for the plaintiff’s head injury.[8]
[8]T32
27 The plaintiff returned to security work within a month of the incident, but no longer worked in pubs and clubs where he might be involved in a fight. He did easy security work, such as gatehouse work.
28 Within a few months of the incident, the plaintiff tried to return to the Master’s course, but found he could not cope and arranged to drop down to one subject. He was given a special exemption; however, after a few weeks, he found he could not continue even with that one subject, and withdrew. He did not resume the Masters course because of his difficulty focusing and concentrating, and he also had problems with his headaches.
29 Before the incident, the plaintiff had planned to obtain his Master’s degree and obtain high paying employment. Once he had a job, he wanted to buy a house, get married and have a family. Initially, his plan was to return to live in Egypt after he finished study; however, in 2011, the political situation there changed, and it became unsafe for himself and other Christians to live in Egypt. On that basis, he applied for, and obtained, permanent residency in Australia.
30 But for his injury, the plaintiff would have completed his studies. Because of the political situation in Egypt, he would have stayed in Australia earning good money, at least $1,500 a week.
31 As of November 2016 when he swore his first affidavit, the plaintiff had headaches nearly every day and his head felt weak to touch. He became dizzy if he looked down for too long, such as at a computer. He could not watch television or read for more than a few minutes. His eyes lost focus and went blurry and he sometimes felt dizzy. He also suffered from anxiety and depression and, perhaps, personality changes.
32 The plaintiff was then working twenty four hours a week, although if he could find an employer who would allow it, he would work thirty six hours. At work he had difficulty with headaches and tiredness, and problems with concentration.
33 The plaintiff continued to participate in his major pre-incident activity of attending the gym about five days a week, where he did weight training and body building.
34 In 2012, as a result of injecting steroids, the plaintiff developed an infected shoulder and required some treatment at the Hospital and from his general practitioner, but he made a good recovery and no longer used steroids.
35 Before the incident, the plaintiff shaved his head. Thereafter, he attempted to shave his head but found that people were always commenting on the shape of his skull and the scarring. He now had to grow his hair, even though he wore it short, to try and disguise the scarring and disfigurement of his skull.
36 The plaintiff found that since the injury, he did not want to socialise with people and really limited himself to members of his church, unlike before the injury, when he enjoyed socialising. Since the injury, he had become somewhat withdrawn.
37 The plaintiff swore a second affidavit on 16 August 2017, in which he deposed he continued to suffer from headaches and concentration difficulties.
38 The plaintiff presently works with MA Security Group, having been in that job for about four weeks. He is working twenty hours a week and is paid $25 per hour. His current work involves static standing at Dan Murphy’s and it is not complicated. He had previously worked for Spotless, where he had worked between twenty and thirty hours a week.
39 The plaintiff has not had any medical treatment for a number of years. Nothing can be done about his headache and he takes about four Panadol a day to help him get through the day. His concentration is not great and he has difficulty focusing.
40 The plaintiff’s life revolves around his gymnasium attendance for body building and work. He attends every day and can basically tune out when he pumps weights. Gym is all he has, not having any family in Australia.[9]
[9]T27
41 The plaintiff was injured when he was twenty-five and did not go back to school and complete his Master’s course. His life has remained relatively static, doing the security work he is capable of doing, tuning out and not thinking too much, and going to the gym. It is a very basic existence, one that he had not planned for himself seven years ago.
42 The plaintiff becomes fatigued easily and, at times, even gym sessions fatigue him. Problems with dizziness and reading have continued. He still experiences headaches and blurred vision on occasion.
43 The plaintiff’s biggest issue is that seven years ago he was studying and looking forward to the next phase in his life, but that has basically stood still as he was unable to complete the Master’s, and he is still working as a security guard doing limited hours.
44 The plaintiff still has a prominent, ugly scar on his head, which is obvious and, in his opinion, quite ugly. The prominence of the depression and shape of his skull is obvious, and he no longer shaves his head, which was his preferred look. His skull is disfigured. It is obvious, and it is not changing, and he dislikes the look of it. There is nothing that can be done to make it look any better. As a result, he socialises less and, aside from work and gym, there is little else he wants to do.
45 During the hearing, I looked closely at the plaintiff’s head whilst he was sitting in the witness box, in the presence of his counsel, counsel for the defendant having chosen not to be part of the viewing.[10]
[10]T7
46 The plaintiff pointed out what was like a ridge on the right side of his skull, where there was a wide hole or a dent. His skull felt weak in the area of the dent and there was a strange feeling, with that area being more sensitive than the rest of his skull.[11] If he pressed the affected area hard he felt pain.[12]
[11]T7
[12]T10
47 Further, there was a large, well healed visible scar in the shape of a hockey stick as described by the Medical Panel, with three limbs.
48 Counsel for the defendant agreed that when the plaintiff was sitting, facing him in the witness box, there was a noticeable dent in his head.[13] When the plaintiff looks in the mirror, his skull looks different to him.
[13]T8
49 The plaintiff used to shave his head bald. When he first came to Australia he shaved his head because he felt “it was more suiting” to his face. Being bald was more suitable for the gym, and when sweating, it did not affect him. It was more relaxing, more convenient and easier for him.[14]
[14]T9
50 The plaintiff now shaves his head from the sides and from the back, but lets the hair grow over the top, as long as it is covering the scar so no one can see it.[15] He described his hair as being short, like the short length of my associate’s hair. He went to the barber to have it shaved for the day of the hearing.[16]
[15]T9
[16]T10
51 When his head has been shaved for him, the plaintiff has been told by the person shaving that it is hard to get inside the dent with a blade.
52 Whilst the plaintiff now had to wear his hair longer to hide the scar, he shaved his head for the hearing just to show the scar, to make it clear.[17] He agreed that was not his usual or typical presentation. He prefers his head shaved because it “looks more fresh and more clean”, especially when he is hot. He wished he could shave it all the time but, unfortunately, he cannot.[18]
[17]T11
[18]T12
53 The plaintiff agreed he shaved his head to go to a plastic surgeon so he could examine it, and he had been advised to do so.[19]
[19]T12; Mr Stapleton’s instructions
54 The plaintiff was taken through his Facebook and Instagram accounts. He agreed that he made his Instagram account private after this application was last on for hearing in August this year. He kept his Facebook account open. Anyone who was following him could continue to follow him.[20]
[20]T14
55 The plaintiff agreed the photographs showed his significant interest in body building and his self-image. It was his sport and something he loved to do.[21] He disagreed the scar and the dent in his head was a “badge of honour” that made him look more masculine. It actually made him more ugly, and that is why he hides it. He did not think it helped his job. He actually tried to hide it.[22]
[21]T14
[22]T15
56 The plaintiff was asked about a comment by his gym friend, Matt Weston, who described him as ‘Rambo’ on a photograph where the plaintiff was shown holding a shotgun. The plaintiff did not know whether the gun was real or fake – “It was something cool to take a picture like that”. The plaintiff did not even take his shirt off for the photograph – “It was not about being tough”.[23]
[23]T17
57 The plaintiff was taken to two photographs where his hair was very short on top. He shaved it bald from the side and from the back, and left some length on the top.[24] He agreed no one would see his scar if he had that little bit of hair on the top of his head.[25]
[24]T18
[25]T22
58 If there was not the dent, or any problems with the scar, the plaintiff would shave his head in the shower every two days, as it takes five minutes.[26]
[26]T28
59 Every time the plaintiff has tried to shave his head bald, he found people commenting on his scar. When he was working at the Australian Open, in a shift, twenty or thirty people asked him about it.[27] He just then gave up and kept his hair a little bit long over the scar.[28]
[27]T20
[28]T21
60 The plaintiff was asked about other scarring on his body. He agreed what looked like a prominent blister on his right arm was where he had had an infection to his shoulder, caused by anabolic steroids. He also had stretch marks on his arm, which were not permanent.[29] However, he does not hide them because they are caused by weight fluctuations due to his gym work.[30]
[29]T19
[30]T20
61 The plaintiff was charged with drug trafficking steroids, but was found guilty of using. There was no conviction and he was ordered to serve a twelve-month Community Correction Order.[31]
[31]T36
62 The plaintiff denied having any scarring on his hip but there was a lump in that area that turned out to be something to do with his sciatic nerve.[32]
[32]T34
63 On the morning of the hearing, the plaintiff had been told very briefly about Mr Stapleton’s suggestion of revision surgery. The plaintiff has not asked about surgery to improve the appearance of his skull because he does not have the money for plastic surgery.[33]
[33]T22
64 It was suggested to the plaintiff in cross-examination that his marriage to Chantal Gerloff was a sham. He denied this was the case. He completed a partner visa on her behalf but did not submit it. They are now divorced.
65 The plaintiff did not know anything about his former wife assisting Dee Vee Singh to remain in Australia.[34]
[34]T31
66 The plaintiff became a permanent residence in 2012.[35]
[35]T31
67 There was no re-examination.
The Plaintiff’s medical evidence
68 The Ambulance Victoria Patient Care Report of 29 May 2010 set out the patient was struck on the top of his head by a long and heavy piece of metal from approximately 5 metres in height. He was closing a roller door on a truck loading dock. The metal was a link in the roller door itself. The patient fell forward, landing on his chin. He stated he lost consciousness of unknown duration. He walked to the security office, where an ambulance was called.
69 The plaintiff was an inpatient at the Hospital from 30 May until 4 June 2010 for treatment of the depressed skull fracture of the left parietal bone.
70 The plaintiff underwent an elevated comminuted compound pressed left parietal fracture and dural repair on 30 May 2010, performed by Mr Laidlaw. In the craniotomy procedure, bone fragments in the flap were disimpacted and reduced. The flap was then secured with synthesis titanium fixation devices.
71 Post operatively, the Hospital occupational therapist did not uncover any evidence of post-traumatic amnesia on screening tests.
72 On 6 June 2010, the plaintiff attended the Hospital Emergency Department for removal of sutures and, three days later, he had a neuropsychology assessment. It was concluded that other than some mild concentration fluctuations during the assessment, the plaintiff had few cognitive repercussions from the head injury.
73 On review on 31 August 2010, the plaintiff reported some ongoing mild headaches and difficulty with maintaining concentration. Although a further follow up in three months was planned, it was noted this did not appear to have taken place.
74 The plaintiff was admitted to the Hospital under the orthopaedic surgery service on 24 September 2012 for right deltoid abscess unrelated to the incident.
Medico-legal examiners
75 Professor Jenny L Ponsford, neuropsychologist, carried out neuropsychological testing of the plaintiff on 5 May 2016. He told her his head felt weak to touch. He could not shave his head as he would like to.
76 The plaintiff was examined by neurosurgeon, Mr Geoffrey Klug, in July 2016.
77 The plaintiff told Mr Klug he noted sensitivity on his scalp in the region of the laceration and noted discomfort when, for instance, he had a haircut.
78 Mr Klug thought the scar on the top of the plaintiff’s scalp appeared to be well healed, but the plaintiff did complain of some tenderness when the skin in the region was palpated. Mr Klug, however, thought there was considerable irregularity of the underlying skull, but no palpable skull deficit. This would suggest that the plaintiff suffered from a depressed fracture in that region. Mr Klug noted the bone fragments appeared to be soundly healed but, as indicated, there was some deformity in the region of the scar.
79 Dr Nathan Serry, consultant psychiatrist, examined the plaintiff in June 2017.
80 Dr Serry noted the plaintiff had some residual physical symptomatology in terms of headaches and tenderness and sensitivity at the site of scarring but, more particularly, described ongoing cognitive changes with impaired concentration and not insignificant psychological symptoms of anxiety, fluctuating depression and considerable frustration. Diagnostically, he thought the most appropriate consideration was that of a Chronic Adjustment Disorder with Anxious and Depressed Mood and with some features of traumatisation.
81 Mr Murray Stapleton, plastic and reconstructive hand surgeon, saw the plaintiff on 30 August 2017.
82 Mr Stapleton noted the scarred area over the back of the scalp was very tender and sensitive and the plaintiff was very careful not to apply any pressure. Prior to the injury, the plaintiff shaved his head and that was the way he preferred to wear his scalp hair.
83 The plaintiff was told, on this occasion, to have his head shaved so that Mr Stapleton could see the scar, but when the plaintiff does shave his head now he is embarrassed about the questions that flow because of the “deep depressed scar on his scalp.” Mr Stapleton thought the condition was now stabilised.
84 Mr Stapleton described three radiating scars that come from a “very depressed centre.” Of the scars that face backwards, the upper one is 4 centimetres in length, the lower one is 6 centimetres in length and there is a forward projection of another scar of 5 centimetres in length.
85 Mr Stapleton thought the prognosis was that the plaintiff had reached maximum medical improvement and the scars should not deteriorate. As it was such a depressed area, he thought it is worthwhile considering the scar on his scalp be revised, at least to correct the depression that draws one’s attention to the scar. Mr Stapleton noted that, of course, was a matter for the plaintiff’s surgeon and he to determine, but Mr Stapleton believed this to be a reasonable procedure to offer the plaintiff.
86 Mr Stapleton thought it was probably because of social embarrassment that the plaintiff’s social, recreational and domestic activities were affected and, for that, he deferred to a psychiatrist’s opinion.
87 Dr Leslie Roberts, neurologist, examined the plaintiff in September 2017.
88 Dr Roberts diagnosed a comminuted compound depressed left parietal fracture, scalp lacerations (4 centimetres in the left parietal region) and mild cognitive issues which, in Dr Robert’s clinical opinion, were related to non-organic factors.
The Defendant’s medico-legal examiners
89 Dr Gorai, neurologist, examined the plaintiff in March 2014.
90 On examination, in addition to cognitive problems and headaches, the plaintiff complained of numbness of his head around the area of the skull fracture.
91 Dr David Fish, occupational physician, examined the plaintiff in April 2014.
92 Examination of the skull revealed a depressed area measuring 3 x 7 centimetres of the parietal lobe. It was teardrop in shape, the overlying skin was healed and there was no associated sensory loss. Scarring was difficult to see through the plaintiff’s hair. There was still a depression of the fracture, with associated scarring.
93 On 8 April 2015, the Medical Panel, consisting of Mr Robert Leith, plastic surgeon, and Associate Professor Richard Stark, neurologist, concluded the plaintiff had a 4 per cent whole person permanent impairment resulting from the accepted head injury (headaches) scarring injury when assessed in accordance with s91 of the Act.
94 The Reasons for this opinion set out the following description by the plaintiff: “It hurts when I touch the scar … tender in one spot and around the scar.”[36] The plaintiff said that there is no other sensory alteration in the scalp away from the injury site. “There is a dent in the skull … I keep my hair longer now … I used to shave my head … otherwise the scar is not a problem.” He said that the scalp and scar requires no ongoing treatment and has remained healed and stable.
95 The Panel noted a pale left upper parietal scalp “hockey stick” shaped scar, with the scar limbs measuring 4.5 centimetres and 2 centimetres. There was a skull contour defect with indentation over and medial to the scar for approximately 1.5 centimetres in width, with a maximum contour indentation of .8 centimetres.
96 The Panel noted that the plaintiff’s hair was being worn at approximately 1.5 centimetres in length in the region of the injury, with no loss of hair follicles and normal cover of the scar and contour depression.
97 The Panel noted a small area of tenderness to pressure and percussion over the scalp skin and skull bone at the angle of the scar, but no clinical evidence of a sensory neuroma. There was normal scalp skin sensation except for some altered sensation over the scar line.
98 Professor Simon Crowe, consultant clinical neuropsychologist, examined the plaintiff in May 2017.
99 The plaintiff told Professor Crowe he used to shave his head as part of a fashion look but cannot do so now because he is embarrassed by the damage to his scalp as a result of the craniotomy.
100 Professor Crowe reported that the pattern of performances revealed by the plaintiff indicated a man who was subject to a complicated mild traumatic brain fracture seven years ago. The plaintiff demonstrated no ongoing deficits of note, which Professor Crowe believed were related to the injury. He did endorse some levels of significant psychological concern consistent with a number of possible diagnoses within the depression and anxiety spectrum, and with some tendency towards somatisation.
101 From a neuropsychological perspective, Professor Crowe believed the plaintiff had made a full recovery and had no ongoing residual deficits of a neuropsychological nature.
102 There were a number of photographs, many of them “selfies” from the plaintiff’s Facebook account in which his very developed upper body was shown.
103 There was extensive material tendered by the defendant which included:
(i) Swinburne University extracts
(ii) documents relating to Dee Vee Singh
(iii)Protection and citizenship documents
(v)the plaintiff’s Crim-Track record.
104 These were sought to be relied on in an attack on the plaintiff’s credit, but given the specific nature of the application pursuant to clause (b), they were of little relevance to the present application.
Overview
105 There is no dispute the plaintiff suffered a compensable injury to his head in the incident. His skull fracture and laceration required craniotomy surgery and repair, as a result of which there is further scarring at the site thereof.
106 The defendant accepted liability for the payment of weekly payments and medical expenses. Liability was also accepted pursuant to s98C of the Act for a permanent impairment.
Credit
107 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[37]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[37](2010) 31 VR 1 at paragraph [12]
108 Counsel for the defendant advised he proposed to cross-examine the plaintiff in relation to matters of credit and that material provided in the Defendant’s Court Book “indicates the defendant has serious misgivings about the credit worthiness of the plaintiff and it was intended to cross-examination in relation to a whole host of credit issues”.[38]
[38]T3
109 However, given the plaintiff’s present application relates essentially to the seriousness or otherwise of his disfigurement alone, in my view, the matters proposed to be cross-examined on were not particularly relevant to this application and my ultimate determination.
110 Whilst it is unclear whether psychological factors can be taken into account in this application under s134AB(37)(17)(b) of the Act, counsel for the plaintiff conceded that psychological factors were not relevant in this case, to which the Act, not the Transport Accident Act, relates.[39]
[39]T5, cf Transport Accident Commission v Garcia (supra) at paragraph [27] where the Court held psychological factors were relevant in a scarring/disfigurement case
111 Accordingly, I indicated there would be no criticism of counsel for the defendant for any failure to cross-examine about the extensive material in the Defendant’s Court Book.[40]
[40]T4
112 In any event, I accept the plaintiff’s description of the scarring and disfigurement and the pain and difficulties associated therewith.
Is the disfigurement serious?
113 Counsel for the defendant conceded there was a significant injury and “that could not be avoided.” There was a fracture of the skull, and it “was not said otherwise,” but it was clear from all the material there was a resolution of that physical injury within a fairly short period of time. There was no dispute, there was residual disfigurement, but it is not serious.[41]
[41]T40
114 Further, it was submitted any disfigurement was not permanent, as Mr Stapleton had suggested revision surgery could improve the appearance of the scar and fracture site.[42]
[42]T41
115 The main point on the defendant’s behalf was the plaintiff could cover up the scarring with his hair.[43]
[43]T37
116 Counsel for the defendant relied on my decision in Storto v DJW Management Pty Ltd[44] where I dismissed the plaintiff’s application in circumstances where his leg scar was not readily visible and was routinely covered up by business attire.
[44]T42; [2015] VCC 1759
117 I indicated however, I considered the disfigurement in the present case more serious than the scar in Storto.[45] The current plaintiff has not just the hockey stick shaped scar but also a hole, a sort of dent in his skull that I thought was very significant.[46]
[45]Supra
[46]T43
118 Whilst the plaintiff accepted he could cover the scar with a smattering of hair, there is the possibility of going bald in the future.[47] In those circumstances, counsel for the defendant submitted if the plaintiff went entirely bald, that would very much enhance his ruggedness. He is not a man with self-image problems, given the “selfies” on his Facebook page.[48]
[47]T44
[48]T45
119 It was submitted that the plaintiff was doing very little to cover up the scarring and he “paraded” it, if anything. He was shown time and time again displaying a pretty much clean, shaven pate in the photographs.
120 Counsel for the defendant criticised the plaintiff for introducing privacy to his Facebook after the last hearing date, knowing that he was being looked at.[49]
[49]T46; T14 - the plaintiff did not change his Facebook - he made his Instagram private
121 In determining whether a permanent serious disfigurement is a serious injury, regard should be had as to its location, size and degree of obviousness of the scar.[50]
[50]Baker v Transport Accident Commission [1997] 1 VR 662; Transport Accident Commission v Garcia (supra)
122 Counsel for the plaintiff submitted the 15cm upper arm scarring in Garcia,[51] which was held to be serious was of similar seriousness to the plaintiff’s in the present case.
[51]Supra
123 It was submitted the plaintiff’s scar is fairly significant, with a prominent dent in his head. It is not just the indentation, it is the fact that it extends[52] three ways in a Y, hockey stick shape as described by the Medical Panel.[53]
[52]T46
[53]T47
124 It was submitted the scar is prominent on the plaintiff’s head; it is obvious, it is ugly, his skull is disfigured, and he has not changed it. He dislikes the look of it, nothing can be done to make it look better. As a consequence he is embarrassed socialising.[54]
[54]T47
125 Further, Professor Crowe and other medical examiners noted the plaintiff used to shave his head bald.
126 It was submitted that seemed to be an important factor for the plaintiff “being clean”. He liked that bald appearance and that was how he wanted to present himself. That is now a situation that is effectively lost to him because of the appearance of his head. Further, there is pain when the scar is touched and tenderness in the area of the scarring.[55]
[55]T49
127 On viewing the plaintiff’s head, my immediate reaction was that the disfigurement is very prominent, being on the top his head. The “dent” is clearly visible, even from a distance, when the plaintiff is seated. That indentation draws attention to the scarring as Mr Stapleton noted.
128 I accept Mr Klug’s view that there was considerable irregularity of the underlying skull and that there was some deformity in the region of the scar.
129 Further, Mr Stapleton described three radiating scars that come from a “very depressed centre”. Of the scars that face backwards, the upper one is 4 centimetres in length, the lower one is 6 centimetres in length and there is a forward projection of another scar of 5 centimetres in length.
130 In addition to the scarring, the Medical Panel described a skull contour defect with indentation over and medial to the scar for approximately 1.5 centimetres in width, with a maximum contour indentation of .8 centimetres.
131 While the plaintiff can cover the scar and disfigurement with hair on the top of his head, this is not the way he prefers to wear his hair for not only reasons of appearance but also convenience, being cooler in the gym and being able to shave himself.
132 Further, most medical examiners have also confirmed the plaintiff’s evidence that the scarring is sensitive to touch. Dr Gorai described numbness of the head around the skull fracture, as did Professor Ponford, Mr Klug, and also Mr Stapleton and Dr Serry.[56]
[56]T48
133 Although Mr Stapleton mentioned the possibility of revision surgery, he thought the plaintiff’s scar would not deteriorate further and was stable. He considered the scar has reached maximum medical improvement and should not deteriorate. He noted that further surgery which would be a reasonable procedure to correct the depression was a matter for the plaintiff and his treaters. In my view, it is not unreasonable for the plaintiff to choose not to take this course which has first been suggested seven years after the incident.[57]
[57]T43
134 Whilst Mr Stapleton did not describe the procedure he envisaged it would necessarily involve further surgery to the plaintiff’s head which would not be a simple procedure.
135 Whilst counsel for the defendant submitted a 4 per cent whole person impairment allowed by the Medical Panel in relation to the plaintiff’s headaches and scarring indicated an impairment to the lower end of the range, any AMA assessment is irrelevant to my determination.[58]
[58]T26
136 In my view, the physical characteristics of the disfigurement and large area of scarring are such that they meet the definition of “serious disfigurement”
137 My view is based upon my value judgment, having had the opportunity to observe the scars and disfigurement at close range and having considered all the evidence before me.[59]
[59]See Judge Misso in Garcia v Transport Accident Commission [2015] VCC 140 at paragraph [27]
138 Further, I accept the plaintiff had to change his appearance to hide the scar. Doing so, growing hair is uncomfortable for him at the gym and is not the way he prefers to look. He continues to be sensitive in the area of the scar and experiences pain if that area is touched.
139 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering
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