Pasion v Victorian WorkCover Authority
[2023] VCC 1868
•23 October 2023 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-02345
| NELSON PASION | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 2 October 2023 | |
DATE OF JUDGMENT: | 23 October 2023 (Revised) | |
CASE MAY BE CITED AS: | Pasion v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1868 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lower back – burn – disfigurement – scarring – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325(1)(b); s335
Cases Cited: Transport Accident Commission v Garcia [2015] VSCA 225; Ingram v Ingram& Anor [1996] 2 VR 435; Baker v Transport Accident Commission [1997] 1 VR 662; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Richards v Wylie (2000) 1 VR 79; Humphries and Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave is granted to the plaintiff to commence proceedings for damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Jurica with Ms N Croagh | Slater and Gordon Ltd |
| For the Defendant | Mr P A Scanlon KC with Mr S Martin | IDP Lawyers |
Table of Contents
Introduction
Background and medical history
Injury
Witnesses and evidence
The Plaintiff’s medico-legal reports
Mr John Crock, plastic and reconstructive hand surgeon
The Defendant’s medico-legal reports
Mr John Buntine, consultant plastic and hand surgeon
Mr Kenneth Brearley, general surgeon
Issues and submissions
Plaintiff’s submissions
Defendant’s submissions
Legal principles
Observation of scarring
Consequences
Physical effects of disfigurement
Medication and medical treatment
Sleep
Psychological impact
Work capacity
Sports and hobbies
Social activities
Analysis
Conclusion
HER HONOUR:
Introduction
1The plaintiff was injured at work on 5 May 2018 when a hot water boiler exploded, resulting in burns to the right side of his face and right arm, legs, abdomen and loin, but mostly on his back.
2By Originating Motion dated 20 June 2022, the plaintiff sought leave pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to issue common law proceedings for the recovery of damages.
3The plaintiff claimed to have suffered a “serious injury” within the meaning of paragraph (b) of the definition of “serious injury” in s325(1) of the Act.
Background and medical history
4The plaintiff was born in October 1966 and is currently fifty-six years of age.
5He has a wife, and two children aged seventeen and fourteen.
6He is married and lives with his family.
7The plaintiff completed a degree in engineering and commerce. He then worked as a miller for about thirteen years before emigrating to Australia in about August 2010.
8When he arrived in Australia, the next day he started working at UniGrain as a miller.
9At the time he was injured, the plaintiff worked full time as a production technician. His job involved packing the finished product of oatmeal and flour.
Injury
10At the plaintiff’s work premises there were two boilers: boiler one and boiler two. Boiler two was usually used, but, at the time, the plaintiff was injured while boiler two was undergoing maintenance. Consequentially, boiler one was being used. Boiler one was ultimately replaced about a year after the plaintiff was injured.
11At about 3.00pm on 5 May 2018, the plaintiff was asked by his colleague, Ernie, to help him reset an old boiler – known as boiler one – at his work premises. The boiler had hot water in it. Suddenly and without warning, the boiler exploded. The plaintiff sustained burns to the right side of his face, and right arm, legs, abdomen, and loin, but predominately on his back.
12He was taken by ambulance to the Ballarat Hospital, where he was admitted with burns to his face, back and right wrist, and then to The Alfred the next day, where he stayed until 23 May 2018.
13Dr David MacDonald, medico-legal consultant, at Alfred Health, noted the burns the plaintiff sustained:
“… were measured at 6% with a total body surface area.
These were a mixture of full thickness and partial thickness burns.”[1]
[1] Plaintiff’s Court Book (“PCB”) 32
14The plaintiff was seen by a general practitioner, Dr Josephine Salazar, at Eureka Medical & Dental. A nurse also came to his home for approximately two weeks to change his dressings. His wife, who works as a carer in aged care, also looked after his dressings.
15Sometime after the explosion, the plaintiff was referred by Dr Salazar for counselling for sleep disturbance.
16Sometime in approximately June 2018, the plaintiff returned to work full time performing his pre-injury duties, save that he no longer works in the boiler room or out in the sun.
Witnesses and evidence
17At the hearing, the plaintiff was called to give evidence. Two affidavits of the plaintiff, being an affidavit of the plaintiff sworn 15 February 2022 and a further affidavit of the plaintiff sworn 17 August 2023, were tendered. Various medical records and reports from treating doctors and medico-legal experts were also tendered. Additionally, the plaintiff tendered a Medical Panel Opinion dated 8 May 2021. The plaintiff was not cross-examined.
18The defendant tendered a report of Mr John Buntine dated 14 August 2018; a report of Mr Kenneth Brearley dated 5 September 2019, and two photographs.
19At the hearing, I also had an opportunity, together with counsel for the parties, to inspect the scarring on the plaintiff’s back.
20I have read the tendered documents. I will only refer to those parts as is necessary to explain the conclusions I have reached.
The Plaintiff’s medico-legal reports
Mr John Crock, plastic and reconstructive hand surgeon
21Mr Crock prepared two reports, dated 18 May 2022 and 21 August 2023.
22In his first report, Mr Crock noted that the plaintiff:
“… has a significant area of scarring on his back, just above the natal cleft that measures 8 x 9cm, where there is marked hypopigmentation. His skin is frail and very thin and atrophic, and there is evidence of excoriation around the scarring, particularly at the upper end of the natal cleft. The whole area around the periphery of the scar is hyperpigmented and thick with almost a peau d’orange appearance. He says that he treats this every day with a moisturising cream, but even so it is still excruciatingly itchy and he says the scar also becomes painful, particularly after he has scratched it for a while, and he said the whole area becomes like a thick, dull ache in his lower back at the site of the scar.”[2]
[2] PCB 54
23He noted, “… [[t]he plaintiff’s] scars, particularly on his back are unsightly and he tries to cover them”.[3] They are disfiguring and symptomatic.
[3] PCB 56
24It was noted that the plaintiff’s symptoms revolved around the symptomatic nature of the scar. His scarring was surrounded by excoriation from scratching, which Mr Crock considered was likely to continue for the foreseeable future and could worsen the plaintiff’s situation. The plaintiff would likely also require ongoing treatment with moisturising creams and gels for his scarring, particularly on his back.
25In his second report, Mr Crock, noted that, when he examined the plaintiff, albeit via a Telehealth videoconference in August 2023, he still had some marked excoriation and wounds on his back, particularly his lower back. The plaintiff’s deep partial-thickness burns to his lower back had healed and the scars were noted to be mature, but they remained extremely itchy. The plaintiff continues to scratch, causing ongoing excoriation and skin breakdown. The plaintiff’s scars are being treated with topical creams and an antihistamine tablet, Zyrtec, to reduce the itch.
26Mr Crock opined that the plaintiff’s current scarring was extremely obvious and disfiguring if he is wearing shorts without a shirt, and according to the AMA Guides to the Evaluation of Permanent Impairment, he has Class-2 scarring, because the scars are visible at all times and require treatment on a daily basis.
The Defendant’s medico-legal reports
Mr John Buntine, consultant plastic and hand surgeon
27Mr Buntine, in his report dated 24 August 2018, opined that:
“… [The plaintiff] sustained extensive scalding of the lower part of his back, both flanks and his lower abdomen, a broad scalded strip of his lower right forearm and scalding of the posterior and lower part of the right side of his face when a boiler exploded at his place of work on 05.05.2018. … .”[4]
[4] Defendant’s Court Book (“DCB”) 7
28The plaintiff reported the burnt area on his back sometimes became itchy.
29Mr Buntine reported the plaintiff was treating his burns via the application of moisturising cream and protection of the burned areas from sun exposure.
Mr Kenneth Brearley, general surgeon
30Mr Brearley, who conducted an independent impairment assessment of the plaintiff, expressed his opinion in his report dated 5 September 2019, following examination of the plaintiff’s lower back that:
“There is a rectangular area 20cm x 12cm where the skin is dark. On the left side of this area there are small punctate areas of reduced pigmentation. The back is clinically normal with a full range of movements.”[5]
[5] DCB 23
Issues and submissions
Plaintiff’s submissions
31It was submitted on behalf of the plaintiff, first, that taking account of the factors identified in Transport Accident Commission v Garcia,[6] this was a case of gross disfigurement, as discussed by the Court of Appeal in Ingram v Ingram & Anor.[7]Relevant factors leading to this conclusion included the location, size and degree of obviousness of the scar, the relevant medical evidence, and the Reasons for Opinion of the Medical Panel dated 8 May 2021, that there was a 2 per cent whole person impairment as a result of the burns the plaintiff sustained. It was submitted the plaintiff has suffered actual gross disfigurement which will be life-long and the scarring alone satisfied the “very considerable” test for a “serious injury”, as defined in s325(1)(b) of the Act. The plaintiff’s lower back is obviously ugly, with the skin where the scar is located being fragile and thin, and clearly changed in comparison to the rest of the skin. There is hyperpigmentation and hypopigmentation. The skin of the scar is numb and itchy. The Medical Opinion also supports the obviousness of the disfigurement.
[6] [2015] VSCA 255 (“Garcia”)
[7] [1996] 2 VR 435 (“Ingram”) at 440 (per Charles JA)
32Second, it was submitted the effects of the burns – namely the scarring disfigurement – is permanent. In this regard, reliance was placed upon the opinion of Mr Crock, who opined, in his first report, that “[h]is scars will be life long and it is expected they will be stable and not deteriorate” and that the plaintiff’s requirements for medical treatment are “likely to continue for the foreseeable future”.[8]
[8] PCB 56
33The plaintiff also submitted that the Court can be fortified in reaching this conclusion because the plaintiff has had to live with his scarring disfigurement over the past five years.
34Third, in considering whether the scarring disfigurement is “serious”, the Court is not confined to the physical characteristics of the scar, the age, and possibly the sex, of the applicant.[9] In combination with the obvious effects of the scarring, the consequences to the plaintiff exceed the “very considerable” threshold and include that:
(a) the physical effects of the plaintiff’s scar include that it feels itchy “all the time”. The pigmentation has altered and the skin where the scar is located has little bits of white and pink throughout. It is tender to touch. Some parts of it feel bumpy and rough and sometimes the plaintiff has numbness and a “numbing” kind of pain;
(b) the plaintiff finds it hard to sleep because his scar gets very itchy;
(c) the plaintiff is required to take Zyrtec, an antihistamine, to treat the itchiness associated with his scarring, and most days uses moisturiser creams on the scarring;
(d) the scarring has resulted in psychological consequences for the plaintiff, who finds his scarring to be ugly;
(e) the scarring has resulted in changes to the plaintiff’s social and recreational activities. The plaintiff cannot swim like he used to, and he tries to avoid sunlight on his scar. He feels a burning pain on his scar when it gets red;
(f) the plaintiff’s lifestyle habits have changed because of the scarring. For instance, the plaintiff tries to hide his scar and endeavours to wear a t-shirt and top to cover it, whereas, previously, he was used to taking his top off in the warmer months and not wearing a shirt;
(g) his wife can feel his scar and tells him it feels rough;
(h) the plaintiff has limitations at work, including that he cannot work in the heat and sun. Reliance was placed upon the reports of Mr Crock in this regard.
[9] Baker v Transport Accident Commission [1997] 1 VR 662 (“Baker”)
35Finally, it was submitted the plaintiff is stoic. He has got back to work as a miller and has got on with his life as best he can, and he should not be penalised for having done so.
36The plaintiff submitted that, taking all of these matters into account, and after consideration of a range of cases, I should find the plaintiff has suffered a “serious injury”.
Defendant’s submissions
37The defendant submitted that the plaintiff’s application should fail.
38First, in assessing whether the plaintiff’s disfigurement constitutes a “serious injury”, it is necessary to consider the location, number, size and degree of obviousness of the scar. Here, the plaintiff’s scar is not obvious. It is located low on his back where it cannot be seen easily. This is to be compared with Garcia, where there was a 15-centimetre scar on the plaintiff’s arm that was red and thickened and, Ingram, where the plaintiff had a laceration from her breast to below her naval following a surgical procedure. On its face, the scarring does not constitute a “serious injury”.
39Second, in considering the consequences of the scarring injury to the plaintiff, while it is necessary to consider the loss sustained by the plaintiff, this must be informed by what the plaintiff has retained.[10] Further, the Court should ignore portions of the plaintiff’s affidavits which relate to psychiatric injury, rather than disfigurement, specifically, paragraph 5, referring to the plaintiff having had some counselling; paragraph 11, in which the plaintiff deposed to not liking to answer the question about what happened to him, as it brings back a memory of the explosion; and paragraph 15, in which he speaks of dreaming about the explosion and the effect the nightmares have on him. Additionally, the Medical Panel opinion should also be ignored because it referred to a 12 per cent impairment with respect to a psychiatric condition.
[10] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”) at paragraph [27] (per Ashley JA)
40It was submitted in terms of consequences:
(a) the plaintiff does not experience any pain from his scar, save that sometimes when he is showering, the “scratch”[11] might sting;
(b) he does not consult a medical practitioner about it;
(c) his sleep is not disturbed, save for on occasions when his skin is itchy;
(d) despite his scar, the plaintiff is still able to swim. If he is not swimming, it is because he must wear a shirt and he is choosing not to swim;
(e) what he has retained is important. In TTB SMS Pty Ltd v Reading,[12] the plaintiff was found not to have suffered a serious injury, notwithstanding he had difficulty performing manual work, had ceased employment because of restrictions with his company, had undergone hand therapy, took over-the-counter medication, had intermittent pain, and experienced difficulty using his fingers to tie fishing hooks and shoelaces. The plaintiff, on the other hand, has full-time, unrestricted employment. Additionally, it is not suggested his injury will impact his employment into the future.
[11] Transcript (“T”) 12, Line (“L”) 25
[12] [2020] VSCA 203 (“Reading”)
41After taking those matters into account, it was submitted the scarring disfigurement suffered by the plaintiff was “confined absolutely to an itch that’s low in the low back that he’s able to reach and scratch, clearly in which he does.”[13] There is no suggestion the plaintiff cannot participate in social activities. There is no suggestion he has not retained a full capacity to work or to care for himself. He has not lost sleep. He has retained a full life. He is fifty-seven years old, married and in full-time employment. While the plaintiff’s scarring injury was not trivial, when compared with the range of possible injuries, it was submitted it did not rise to the level of a “serious injury”. The consequences and effect of the scarring are not more than “very considerable”, “significant” or “marked”. Reliance was placed upon Reading.[14]
[13] T16, L5-7
[14] Supra
Legal principles
42“Serious injury” is defined in s325(1) of the Act. It provides:
“serious injury means—
(a) …
(b) permanent serious disfigurement; or
(c) …
(d) … .”
43An assessment of the seriousness of a plaintiff’s scarring is not to be undertaken simply by a mere physical examination or by looking at photographs.[15]
[15] Ingram at 440 (per Charles JA)
44In determining whether the disfigurement brought about by scarring is “serious”, the Court must have proper regard to whether the consequences of the disfigurement are serious to the particular plaintiff. This requires consideration of the physical characteristics of the scar and the age, and possibly the sex, of the applicant.[16] In some cases that may be enough and there may be no reason to go beyond the objective circumstances.[17] However, in making the assessment, the Court may also have regard to the plaintiff’s own attitude or reaction to the suggested disfigurement[18] ꟷ such as self-consciousness and embarrassment[19] ꟷ as well as to the impact and consequences[20] ꟷ including psychological consequences[21] ꟷ of disfigurement upon the particular plaintiff.
[16] Baker at 664 (per Brooking JA)
[17] Ingram at 437 (per Callaway JA)
[18] Garcia at paragraph [27]
[19] Referred to in Richards v Wylie (2000) 1 VR 79 (“Richards”)
[20] Garcia at paragraph [30]
[21] Garcia at paragraph [27]
45In all but clear cases, there is a subjective element involved in the assessment.[22] However, as explained in Humphries and Anor v Poljak[23] and Ingram, in forming a judgment whether, when regard is had to such consequences, an injury is to be held to be a serious injury, it is necessary to make a comparison with other cases in the range of possible impairments or losses and judge whether the injury can be fairly described as “very considerable” and certainly more than “significant” or “marked”. In making the comparison:
“Permanent serious disfigurement … [is] such disfigurement as bears comparison with such injuries as serious long-term impairment of a bodily function, severe long-term mental illness and loss of an unborn child.”[24]
[22] Ingram at 440
[23] [1992] 2 VR 129 at 140-141 (“Humphries”)
[24] Ingram at 438
46In performing the evaluative task, the Court is required to examine, not just what the plaintiff has lost by way of impairment, but also what he has retained.[25] This enables an assessment to be made of the “disabling effect of pain.”[26] That is, the extent to which the pain limits the plaintiff’s physical functioning and interferes with his enjoyment of life.
[25] Dwyer at paragraph [27] (per Ashley JA)
[26] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden”) at paragraphs [14]-[15]
47However, on this point, it is important to note that, where a plaintiff is stoical and continues to work with significant disability, it would be wrong to treat that plaintiff less favourably than a plaintiff of lesser character, who had simply become resigned to his or her injury.[27]
[27] Dwyer at paragraph [3] (per Nettle JA)
Observation of scarring
48At the hearing, I undertook an inspection of the plaintiff’s lower back, together with counsel. I immediately noticed that the scarring was more pronounced than in the photographs tendered. I observed a large, roughly circular-shaped scar about 25 centimetres wide. It was located in the centre and to the right side of the plaintiff’s lower back. There appeared to be a reasonably-sized, mottled patch in the centre of the scar, with changes in pigmentation and a texture like dried orange peel. The skin had bumps and divots, and there were some raised aspects which were translucent in appearance and pliable like bubble wrap. These were not readily observed from the tendered photographs. There were also some visible hair follicles and hair protruded from parts of the centre of the scar. It was a nasty and obvious scar which blighted the plaintiff’s lower back.
49My observations of the scarring were consistent with the opinion of Dr MacDonald, who opined that:
“… regarding the … [scarring on the plaintiff’s] back, there were several small blisters and some mixed hypo and hyperpigmentation and the skin was more vascular and fragile.”[28]
[28] PCB 33
50Similarly, as Dr Salazar observed, “[[t]he plaintiff has persistent pigmentation on his lower back sustained from burns”.[29]
[29] PCB 35
51Having considered the plaintiff’s scarring, it is apparent the plaintiff suffered a very traumatic injury to his lower back. He was in hospital for some weeks and had daily dressings of his wounds. He has been left with what I find to be extensive, unsightly and obvious scarring and disfigurement to his lower back.
Consequences
52In addition to the visual effects and consequences of his injury as a result of the scarring and disfigurement, the plaintiff claims to have suffered a range of additional consequences which it is necessary I also assess for the purposes of determining whether he has suffered a “serious injury”.
Physical effects of disfigurement
53The plaintiff claims that the scar on his lower back is tender to touch and parts of it feel a bit bumpy and rough. It feels itchy all the time and sometimes the plaintiff has to scratch it. The plaintiff has to avoid sunlight on his scar, as this makes it itchy. He feels a burning pain and his scar gets red. When he scratches the scar in the shower it stings. He has numbness on his scar and experiences a “numbing” kind of pain.
54The plaintiff also said that, when his wife is cuddling him, she can feel his scar. She tells him it feels rough.
55Mr Buntine, in his report, noted the plaintiff had periodic itchiness.
56Mr Crock, in his first report, noted that the plaintiff’s scarring is surrounded by excoriation from scratching which is “excruciatingly itchy”. This is likely to continue for the foreseeable future and could worsen his situation. In his second report, he identified that the plaintiff finds the ongoing itch in his back extremely distracting.
57Mr Crock’s report is more recent, and, as a result, I prefer his opinion. I consequently find that the plaintiff experiences excruciating ongoing itching which he finds distracting. I find the plaintiff’s scar is tender to touch and feels bumpy and rough. The plaintiff has to avoid sunlight on his scar.
Medication and medical treatment
58The plaintiff said that, most days, his wife puts moisturiser on the scar on his lower back. Once in a while, his wife scratches his back, and sometimes when it is really itchy – about once a week – he takes Zyrtec.
59Mr Buntine observed, when he prepared his report, that “[t]he only present treatment is the application of moisturising cream and protection of the recently burned areas from sun exposure”.[30]
[30] DCB 9
60Mr Crock, in his first report, noted treatment by the plaintiff of his scars with moisturising creams and gels, particularly on his back. More recently, in his second report, he identified that the plaintiff’s scars are being treated with topical creams and antihistamine tablets to reduce the itch.
61I find that the plaintiff’s scar is treated with moisturising/topical creams and the symptoms of itchiness are treated with Zyrtec antihistamine tablets.
Sleep
62The plaintiff identified, in his first affidavit, that the presence of his scar impacts his sleep. He finds it hard to sleep because his scar gets very itchy.
63Some impact on the plaintiff’s sleep was consistent with his report to Dr Salazar following the incident. However, by the date when Dr Salazar prepared her report, she observed the plaintiff’s sleep had improved following counselling.
64The Medical Panel also noted that itchiness was the plaintiff’s worst problem. It mostly affected his back. The Medical Panel recorded, in their Reasons for Opinion, that the itch had improved and that the plaintiff could sleep on his back. However, it also noted that the plaintiff’s sleep was usually broken. He usually averaged six hours sleep a night and, when he woke, he had difficulty getting back to sleep.
65I accept there is ongoing itchiness from the plaintiff’s scarring. This impedes his ability to sleep undisturbed. The plaintiff’s ongoing itching impacts his sleep. The plaintiff may manage to sleep for six hours each night, but I find that there is nevertheless a moderate impact on his sleep.
Psychological impact
66The plaintiff has also had a psychological response to the scarring. He does not like the look of his scar. He says it is embarrassing. He tries to hide the scar whenever he can. It looks ugly to him and when he looks at his scar in the mirror, parts of it are dark and little bits are white or pink.
67He does not like speaking about his scar with his children. He does not like to have to answer questions about it, because it brings back memories of the explosion, which is stressful for him. When his children ask about it, he tells them it is okay, as he does not want to worry them.
68He previously used to take his shirt off during the summer months when he was at home; especially if it was hot. That was his habit from living in the Philippines. He does not do that now, because he finds his scar ugly.
69The defendant has submitted I should not take account of paragraphs 5, 11 and 15 of the plaintiff’s affidavit and the Medical Panel opinion, as they relate to psychiatric evidence and could only be used to substantiate a paragraph (c) case.
70However, psychological consequences of permanent disfigurement may be taken into account when assessing seriousness in a paragraph (b) case.[31] Consequently, I have taken these matters into account, only insofar as they raise psychological consequences. I find the plaintiff is embarrassed by his scar, which he finds to be ugly. He tries to hide his scar and avoids taking his shirt off. He is self-conscious because of his scarring.
[31] Garcia at paragraph [27] applying Richards
Work capacity
71The plaintiff said, in his affidavits, that he has returned to full-time duties in his pre-injury employment, although he no longer works in the boiler room. This was confirmed by Mr Crock in his reports. He is not restricted from bending, lifting, twisting or stooping. However, the itch in his back is worsened by sweating and repetitive physical activity. He is not able to work outside in the sun unless his scar is specifically covered to prevent sun damage to the hypopigmented area. The scar gets easily sunburnt and itchy.
72Mr Buntine also noted, in relation to the plaintiff’s work, that “[the plaintiff] did not readily admit to his limitations”,[32] but he eventually said “his dislike of the appearance of the burned areas has some effects upon him.”[33] He also asked if the colour of the burned skin would eventually return to normal. Mr Buntine’s opinion was it will never be absolutely normal.
[32] DCB 6
[33] Ibid
73I find that, although the plaintiff has returned to his pre-injury employment on a full-time basis, he can no longer work in the boiler room. Nor can he undertake work which requires him to be in the sun. or which may cause him to sweat, as it will make his scar itchy. While I take those impacts on the plaintiff’s work capacity into account, I consider them to be minor.
Sports and hobbies
74Before the injury, when the plaintiff went swimming, or when he went to the pool, he would take his shirt off. Now he swims with his shirt on, as he is embarrassed by his scar.
75Mr Crock, in his first report, considered the impact of the plaintiff’s scarring on his ability to participate in leisure activities. He opined that, because the plaintiff’s scar was unsightly and he tries to cover the scar up, this affects his ability to go to the swimming pool with his children. His children already comment on his scarring when he is in the shower, and they see him and ask what is wrong with his back. Mr Crock observed the plaintiff finds that distressing.
76In his second report, Mr Crock observed that many activities the plaintiff used to love doing, he no longer does, particularly ball sports.
77I find that the plaintiff’s scarring has impacted his ability to participate in swimming. It may have impacted his ability to play ball sports also, but because it is unclear to what extent this was a pre-injury leisure activity of the plaintiff, and because it is not a consequence the plaintiff relies upon, I am inclined to disregard it.
Social activities
78Mr Crock, in his second report, identified that the plaintiff is precluded and restricted in relation to social, domestic and recreational activities. When he is socialising, he finds that his interactions are impacted because of the ongoing itch in his back, which is extremely distracting.
79I find that there has been an impact on the plaintiff’s social activities.
80In summary, I find that, in addition to the obvious unsightliness of the plaintiff’s scar, the scar itself is tender to touch, and feels bumpy and rough. The plaintiff’s scar has ongoing itchiness and there is a numbing pain. He has to avoid sunlight on his scar. The ongoing itchiness from the plaintiff’s scarring impedes his ability to sleep undisturbed. The plaintiff’s scar is treated with daily moisturising/topical creams and the symptoms of itchiness are treated with Zyrtec antihistamine tablets at least once weekly. The plaintiff has returned to his pre-injury employment on a full-time basis, but he can no longer work in the boiler room. Nor can he undertake work which requires him to be in the sun, or which may cause him to sweat. The plaintiff is embarrassed by, and self-conscious of, his scar, which he finds to be ugly. He tries to hide his scar and avoids taking his shirt off.
Analysis
81I have considered all the evidence. When the consequences to the plaintiff of his scarring are considered, I accept that, subjectively, they are serious to the plaintiff. It is necessary, then, to compare the consequences of the plaintiff’s injury to the range of cases of possible consequences, and to also consider what has been lost, in comparison with what has been retained.
82The defendant relied on the decision of Reading and suggested, based on that decision, that this was clearly a case where the plaintiff’s injury did not rise to the level of a “serious injury”. I have given this considerable thought and in the end I disagree.
83In Reading, the plaintiff sustained an injury to his middle finger and his right little finger was fractured and required open reduction surgery with internal fixation by plate and screws. The plaintiff returned to work after four days and had not been off work since that time; although he had devised techniques to work around his residual impairment. He had no residual symptoms in his middle finger. He had mild curling of his ring finger and more to his little finger. At rest, they were not painful, but ached and cramped if used too much. They made his dominant right hand slightly clumsy. He had not sought medical treatment for his hand since 2007, although he may have taken over-the-counter medication. There had been what was described as a mild impact on his recreational activities; specifically, having once been an occasional golfer, he could no longer play. He could no longer water-ski and although he could continue to fish, he had difficulty with tasks requiring some dexterity. He had retained a full capacity to care for himself and live independently. His mood and ability to sleep were unaffected and he suffered from no cognitive deficit.
84The Court of Appeal noted that, while those impairments were certainly not trivial, they could not be fairly described as “at least very considerable”. The Court of Appeal reasoned that this was because the evaluation required of the trial judge, and of the Court of Appeal, involves a comparison of the plaintiff’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, it was observed, may involve constant pain, significant medical treatment and medication. They may also involve sleep deprivation, or an inability, or reduced ability, to socialise or work.
85In this case, the plaintiff, like the respondent in Reading, required initial hospitalisation and treatment. He has returned to work on a full-time basis performing his pre-injury duties, save for work in the boiler room, or in the sun. There has been a mild impact on his recreational activities and no impact on his activities of daily living.
86Unlike in Reading, however, the visual effects of the plaintiff’s injury are extreme. He will forever be branded by his scarring, for which he is required to apply daily moisturising treatments. In addition, unlike in Reading, where the plaintiff’s injuries ached and cramped sometimes, but were not painful, the plaintiff, here, experiences some burning and numbing pain. In addition, the plaintiff experiences frequent itchiness, which he finds distracting. It affects his sleep and his social life, and he is required to take an antihistamine medication for it. Additionally, there are psychological consequences which continue to affect the plaintiff.
87In Haden, Buchanan JA noted that: “Pain is not objectively measurable. Experience of and reaction to pain varies from one person to another.”.[34] For that reason his Honour, like Nettle JA, doubted the utility of comparing the evidence in that case with the evidence in other cases, or with a list of commonly-encountered indicia of pain.[35] Similarly, here, itchiness is not objectively measurable. What to one person might be, as Mr Scanlon described, but a “scratch”, to another may be completely debilitating. For that reason, comparison of the facts in this case to those in Reading is not determinative of the plaintiff’s application.
[34] Haden at paragraph [48]
[35] Haden (per Buchanan JA) and paragraph [51] (per Nettle JA)
88Further, because Reading was a case involving consideration of paragraph (a) of the definition of “serious injury” in s134AB(37) of the Accident Compensation Act 1985, and no question of scarring arose under paragraph (b) of the definition of “serious injury”, Reading was a different case and may also be distinguished on that basis.
89I have considered the observation of Ashley JA in Dwyer that “the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[36] In my view, what the plaintiff has retained, particularly the fact that he has been able to return to work full time performing his pre-injury duties, highlights that he has a degree of functional ability. This tends towards the conclusion that he has not suffered a “serious injury”.
[36] Dwyer at paragraph [27] (per Ashley JA)
90However, I consider the plaintiff in this case is stoical. For that reason, he should not be treated less favourably than a plaintiff of lesser resilience who had simply become resigned to his or her injury.
91It is important not to lose sight of the fact that the ultimate assessment is one of what the plaintiff has lost. I have considered the plaintiff’s scarring and its consequences, not just in comparison with other cases of scarring of the back, but also with other types of physical and mental impairments or losses of a body function, disfigurements or mental or behavioural disturbances or disorders, in the range of possible impairments or losses.
92Because this is a case involving scarring, as the Court of Appeal in Garcia observed in relation to paragraph (b) cases, “the consequences of scarring … are not likely to be something about which one can dilate at length”.[37] Having considered all of these matters, on balance, I am satisfied the visual effects of the plaintiff’s scarring and disfigurement, the nature and frequency of his pain, the level and duration of his ongoing distracting itchiness, the effect that it has on his ability to sleep, his daily moisturising treatments and his need for regular, at least weekly, antihistamine medication, as well as the psychological and other consequences he suffers, are at least “very considerable” and certainly more than “significant” or “marked”.
[37] Garcia at paragraph [30]
Conclusion
93Accordingly, I grant the plaintiff leave to issue common law proceedings for the recovery of damages.
94I will hear argument with respect to costs.
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