Permata v Transport Accident Commission
[2021] VCC 153
•11 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04832
| GRACIO PERMATA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 20 and 27 January 2021 (via Zoom hearing) | |
DATE OF JUDGMENT: | 11 February 2021 | |
CASE MAY BE CITED AS: | Permata v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 153 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment to the right ear – disfigurement
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Transport Accident Commission v Garcia [2015] VSCA 225; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Baker v Transport Accident Commission (1997) 1 VR 662
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards QC with Ms A Ryan | Shine Lawyers |
| For the Defendant | Mr D Masel SC with Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident (“the accident”) which occurred on 22 October 2017 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a) – “a serious long-term impairment or loss of a body function”. The body function pursuant to that subparagraph is the right ear.
4 There was also an application pursuant to subparagraph (b), with the plaintiff claiming a serious disfigurement of the right ear.
5 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[1]
[1]See Richards & Anor v Wylie (2000) 1 VR 79
7 In Transport Accident Commission v Garcia,[2] the Court of Appeal stated that in subparagraph (b) cases:
“… Since Richards, there has been no doubt that in serious injury applications under s 93 of the Act, where paragraph (a) of the definition of ‘serious injury’ is relied upon, a psychological consequence of the relevant injury may be taken into account when assessing seriousness. By the same reasoning process as applies in paragraph (a) cases, a psychological consequence of permanent disfigurement may also be taken into account when assessing seriousness in a paragraph (b) case.”
[2][2015] VSCA 225 (“Garcia”) at paragraph [27]
8 The plaintiff relied on two affidavits and was cross-examined. He also relied on an affidavit of his friend, Gilles Didier Sambat, sworn on 15 January 2021. Further, the parties relied on medical reports and other documents which were tendered. I have read all the tendered material, viewed video surveillance of the plaintiff taken on 9 January 2020 and had a view of the plaintiff’s face in the courtroom on 20 January 2021.
9 The defendant’s case was that there were issues with the plaintiff’s credit, in the sense of overstatement in his affidavits, but essentially the matter in dispute was range.[3]
[3]Transcript (“T”) 7; T78
The Plaintiff’s evidence
10 The plaintiff is presently thirty, having been born in September 1990. He is single and lives with two housemates.
11 The plaintiff was born in Indonesia and his family moved to Vienna when he was about eight and remain there. The plaintiff completed his secondary schooling in Vienna and came to Melbourne at about the age of eighteen. He then studied structural and civil engineering at Monash University and obtained a Bachelor of Civil Engineering with Honours.
12 In 2014, the plaintiff started work on a full-time basis as a structural engineer with J&P Building Solutions (“J&P”), where he was working as at said date.
13 Prior thereto, he enjoyed riding his motorbike, making music (playing guitar, piano and drums). He also enjoyed tinkering with cars and had an active social life with his friends.
14 The plaintiff wore his hair short so his ears were very noticeable. He took pride in his appearance. Prior to the said date, he generally enjoyed good health.
The accident
15 On the said date, the plaintiff was checking underneath a car on the nature strip outside a Carnegie property. His head was under the car near the rear wheel when his friend lowered the hydraulics of the car and the car crushed his head (“the accident”).[4]
[4]First affidavit sworn April 2019
16 There was little evidence during the hearing as to the accident circumstances. As I was concerned whether the plaintiff had been injured in a “transport accident” under the Act, the matter was mentioned on 20 January 2021 to address this issue. Counsel for the defendant then explained in detail the accident circumstances based on the investigations carried out by his client.
17 The Court was advised the vehicle involved in the accident was a left-hand drive Cadillac with hydraulic suspension. The plaintiff was going for a drive with a friend and was sitting in the passenger seat on the right side of the vehicle. The vehicle became stuck in a gutter, and the plaintiff got out to inspect the vehicle and attempt to remedy the issue. The driver managed to get the vehicle out of the gutter without the plaintiff’s assistance and the vehicle moved forward a little bit consequently. The vehicle then stopped again, and the plaintiff got underneath the vehicle, unbeknown to his friend in the driver’s seat. The plaintiff’s friend turned the ignition off, and the vehicle’s suspension was lowered, causing direct impact and injury to the plaintiff’s head.
18 In these circumstances, I am satisfied the plaintiff was injured in an incident directly caused by the driving of a motorcar. Counsel for the plaintiff made no submissions to the contrary.
19 Initially after the accident, the plaintiff had a lot of flashbacks and nightmares relating thereto. He continued to get flashbacks of the accident from time to time and to feel upset when thinking or talking about it. It was a very frightening accident and he believed he was lucky he was not killed.[5]
[5]First affidavit
Treatment
20 Following the accident, the plaintiff was conveyed by ambulance to The Alfred hospital where he underwent a number of investigations. He was treated with intravenous antibiotics and subsequently underwent a debridement and repair of the laceration to his right ear (“the surgery”). He was an inpatient for three days.
21 The plaintiff subsequently attended The Alfred as an outpatient on two occasions for removal of the stitches and cleaning of the wound. He was also provided with an ointment to put on his ear, and prescribed pain medications. He subsequently had a hearing test performed by an audiologist and underwent specialised cleaning of his ear.
22 Having returned to work three weeks after the surgery, the plaintiff then did not require painkillers and required no further treatment.[6]
[6]T25
23 As at April 2019,[7] the plaintiff was not having any treatment. He had been advised he may be a candidate for further surgery for cosmetic purposes but was not prepared to have it. The area around his ear was very sensitive. In his own mind and heart he could not face further surgery. He did not believe he would be able to cope with any form of intervention, either in his ear or on his ear or in the area around his ear.
[7]First affidavit
24 In cross-examination, it was suggested to him that he had not undergone revision surgery because he did not have the concern with his appearance that he described and that he did not have the significant relationship problems that he had deposed to. While he agreed that a number of doctors had suggested that revision surgery could improve his appearance, he had declined to undertake that surgery:
“I’m still traumatised in terms of the pain of the surgery and I’m traumatised with any pain and, yep, I’m just at the point of - taking three weeks off or many more, maybe more than three weeks, and also the pain afterwards, I’m traumatised with any pain, yeah.”
25 Further, he could not say revision surgery “would basically fix … [his] ear 100 per cent. … [His] ear is still deformed from the first surgery.”[8]
[8]T21
26 He had been advised to see a psychologist by a doctor in this case but he did not want to go ahead with counselling. [9] In response to a suggestion he had not done so because the matters he complained of were not that serious, the plaintiff said:
“I think my concern is still serious and like lots of people deal with seriousness in a different way and for me personally I like to deal with it myself, but I don’t - like I say, I don’t like to meet people, I don’t like to meet new people and I don’t like to speak to other people, especially about this accident.”[10]
[9]T25
[10]T26
27 The plaintiff suffered a permanent deformity of his right ear. It looked different from the left and how it used to be. His ears were no longer symmetrical and his right sat lower than his left. His right now stuck out further from his head than his left, particularly the top half of his ear.
28 His right ear lobe was more than the lobe of the left and his left ear was shorter than his right. The lower half of his right ear was smaller and his right ear no longer had a smooth outline from the top to the bottom, as did his left. His right ear was very tender to touch. At times, he believed it looked different in colour from his left, which he thought may be related to the general tenderness of his right ear. In hot weather, he suffered from a burning sensation in his right ear.
29 When shaving his own hair, his right ear was much stiffer than the left. He was not able to push it down to shave behind as he could with his left. Also, when shaving his head, he had to be very careful to avoid touching the right ear because of its sensitivity.
30 The plaintiff felt embarrassed about the appearance of his right ear as he had always taken pride in his appearance and he liked to look neat and tidy and well groomed. As he always kept his hair short, he felt his ear deformity was very prominent and noticeable to others and did not feel as though he looked as presentable as pre-accident.
31 The plaintiff always felt that people were noticing his ear and looking at it as he believed it looked deformed, and he felt self-conscious about it constantly. Sometimes when talking to someone, he noticed they suddenly observed his right ear and he could see it registering in their mind what they had seen. That made him feel uncomfortable and as though he owed them an explanation as to why his ear was deformed.
32 In his further affidavit sworn the first day of hearing, the plaintiff confirmed he remains very self-conscious about the appearance of his right ear. The scar is “a run” across his ear and the position of the scar causes the upper part of his right ear to project forward. He has been told that the underlying cartilage is deformed.
33 In cross-examination, the plaintiff was taken to two sets of photographs taken by medico-legal plastic surgeons. The first were taken by Mr Stapleton, plastic surgeon, in October 2018. Dr Thomas took a set of photographs more recently in January this year.
34 The plaintiff described the surgery scar as “just like a quarter from the top, there’s a bit of like a dimple, a slice through, like cut off there, like not straight as the right-hand side”. There is a bit of a cut more towards the front of the lobe.[11]
[11]T11
35 The plaintiff’s right ear is “more slightly forward … like it’s like a C shape, rather than like a straight, like more curve like outwards. The right ear is more pointing forward, it’s more, like it bends forward.”[12]
[12]T12
36 The plaintiff agreed, when his face was looked at from straight on, his right ear was “sort of more pronounced on the top”. He agreed that the lobe protruded down the bottom “So it’s more like a C shape, like more very curved than the other … Mostly on the top of … [his] ear, [the top third] like above the cut, it hurts” when he puts on external headphones and a bike helmet.[13]
[13]T12
37 The plaintiff is concerned about the appearance of his ear:
“I feel like there’s a not symmetrical look of my face and I feel like there’s something like off about it … Like it’s not straight and I feel like every time I look at myself it seems like I have to adjust my way to make it look like it’s straight, but I can’t make it straight.”[14]
[14]T12
38 The plaintiff thought the right earlobe was a bit more protruding outward. He agreed, to a normal observer, the bottom of his ears on both sides looked very similar “but for me when I see myself every day I can notice the difference”. The injured ear sticks out and it comes out more and it looks like it is not very symmetrical. To him it stuck out a lot more.[15]
[15]T13
39 The plaintiff agreed, in one of the photographs taken by Mr Stapleton, his face was slightly tilted, and the recent photograph taken by Dr Thomas was more accurate. He agreed his ears do not stick out as much as some people, but there was a difference, because he had come across a “couple” of people who asked him what had happened to his ear. From afar it would not be obvious, but when you talk to him close up it would be.[16]
[16]T14
40 There was a scar on the outer side of the ear. There were similarities between the colour of the scar and the natural colour of his skin. The scar was not raised or angry. You could see it from slightly afar but it was more prominent when closer.[17] He agreed his scars were not highly discoloured and ugly and that because his face is round, that made his ears less prominent.[18]
[17]T24
[18]T15
41 There was also a scar on the flap between the inner surface of the earlobe and the scalp which could be only seen when the right ear was held forward. That scarring was also skin coloured and not raised, and he agreed it was about 3 to 4 centimetres long.[19]
[19]T24
42 The plaintiff thought the difference between his ears was very obvious in photographs and he found that upsetting. Once when he was asked to show the police his driver’s licence, he had to convince them that the licence photograph, which was taken before the accident, was actually him. They thought he had someone else’s licence because the photograph looked so different.[20]
[20]T18
43 The plaintiff wore glasses, and as a result of his injury and his right ear sitting lower than the left, he had to constantly adjust the glasses. They got crooked because the right arm fell to rest on the right ear. That was a constant source of annoyance to him. If he did not notice that his glasses became crooked, then he thought people must be thinking he was a bit odd because they were crooked.[21]
[21]First affidavit
44 When it was suggested to the plaintiff the surveillance film did not show any issue with his glasses, he explained he has to adjust his glasses if he needs to read something. He denied it was a gross overstatement that he had to constantly adjust his glasses. He had to do so more when reading and looking long distances. When his glasses fall down, his vision becomes blurry. He has to constantly adjust them when he was looking down as they just fall down.[22]
[22]T45
45 The plaintiff had not seen his parents since the accident and avoided going to Austria to see them because he was so worried about their reaction to his changed appearance. This situation caused him great concern. Apart from his half-brother, he was the only child, and he knew that his parents would be very upset about what had happened to him and how he had changed, and he dreaded their reaction and the concern and fuss they would make. Seeing them would be very upsetting for them and him.[23]
[23]First affidavit
46 The plaintiff finds it difficult to lie on his right side to sleep, as any pressure on his right ear and around the area of the scar cause him pain and affects his sleep. If he rolls over to lie on his right side he wakes up because of the pressure on his right ear. It is very sensitive to pressure. His energy levels have been affected because of broken sleep.
47 The plaintiff did not know if putting a pillow on his right side would stop him rolling onto his right ear.[24]
[24]T59
Activities - Motorbike riding
48 The plaintiff loved motorbike riding but it was now very difficult to put his helmet on. When he did, he suffered a burning sensation in his right ear. It was so unbearable that he had stopped motorbike riding.[25]
[25]April 2019
49 Pre-accident, he enjoyed riding to work and then riding on the weekends up to the Dandenong’s and to Healesville with friends in a motorbike group. He no longer engaged in that pastime, which he missed. He also enjoyed recreational activity with his friends and being part of a group with other motorbike riders.[26]
[26]First affidavit
50 Post-accident, the plaintiff was riding his motorbike less and less due to the difficulty wearing a helmet. His bike was stolen in 2019 and he did not replace it as he was hardly using it.[27]
[27]Second affidavit
51 The plaintiff used to enjoy tinkering with cars but was now very apprehensive doing so and he no longer got underneath cars.
Music
52 The plaintiff loved music and played a number of instruments. Since the accident, he found it difficult to use headphones to listen to music. He was now restricted to using in-ear earplugs which upset the quality of the sound of the music he listened to.[28]
[28]First affidavit
53 The plaintiff has a reduced ability to record and play music due to his problems wearing headphones for prolonged periods. Prior to the accident, this was a passion of his and he made electronic recordings frequently.[29]
[29]Second affidavit
54 The plaintiff is interested in music and makes music, and goes to see music.[30] He put music he composed on Spotify in 2012. He put up nothing further until after the accident. In 2019 and 2020, he put up another album on Spotify. These albums were a compilation of music he had earlier produced. It is electronic ambient music, sometimes for a movie soundtrack if anyone wants to use it. He uses an instrument like a piano connected to a computer to produce sounds.[31]
[30]T35
[31]T37
55 The only problem he has with music is wearing “cans” or chunky headphones. He can wear an in-ear piece, but in his opinion, they are not great in terms of the music production. He had lost the AKG in-ear headphones that he previously used.[32] He is able to wear “cans” to write and compile music for about an hour and a half and then he needs a break.[33]
[32]T38
[33]T50
56 Pre accident, when composing, the plaintiff generally played every single day and came up with ideas, playing the piano, the keyboard, listening to the recordings and going back over them again and laying on top. He now does not do that very often because if he puts on the headphones it will create disturbance in his ear, “it has uneasy feelings, and after a while it just hurtful”.[34]
[34]T56
Work
57 In his first affidavit, the plaintiff deposed that as a result of his injury, his career progression had been adversely affected. As at the said date, he had been working for J&P for about three or more years, a job which he enjoyed as a structural engineer. He had secure full-time employment and regularly got good feedback in performance reviews and had no intention of leaving that job.
58 Post-accident, the plaintiff had three weeks off work, and when he returned, was told there was not as much work available for him. Prior thereto, he had been working full time on a contract basis and he believed there was still plenty of work to do, even though he was told not to come to work as often. His hours were reduced up until early 2018. Then he was only working sixteen hours for two days a week, which he believed was because he had taken time off work to recover from his injury.
59 As a result of the reduction in his hours and wanting to work full time, he left J&P and found work with Webber Design, where he is currently employed as a civil engineer in a full-time permanent role.
60 At J&P, the plaintiff was in line for a promotion to a management position which would have meant a significant increase in earnings. He was looking forward to building his career with that company, but he lost that opportunity as a result of his injury.
61 The plaintiff’s present role is more like a graduate-level role or junior role and it would take him a number of years to reach his J&P level. He had expected that sometime during 2019 he would become a manager at J&P, or at least be promoted into a higher position. He was upset this had not happened because he was planning to build his career at J&P. He believed he had long-term opportunities there and enjoyed the work in structural design. He was upset he was unable to continue in that role and missed both the work and his work colleagues.
62 The job at Webber Design is different from structural design. The plaintiff felt as though he had started his career from the beginning again because he needed to develop his expertise in that area.
63 The plaintiff also described problems with work in his second affidavit.
64 When he started at Webber, he was very shy and lacking in confidence until he began to feel comfortable with his colleagues and they got to know about him and his accident and did not look at his ear or ask any questions about it.
65 The deformed appearance of his ear and its shape causes him difficulty at work. He is an engineer employed in the area of civil and commercial construction and is required to attend worksites and advise on design and construction as an essential part of his role.
66 The plaintiff is required to wear industrial hearing protection and he has difficulty wearing this due to the shape of his ear and the forward projection of it as a result of the scarring associated with the re-attachment of his ear.
67 The plaintiff attends a worksite about every two to three weeks for a full day and finds he is unable to wear ear protection longer than for about forty-five minutes to an hour. Doing so, he experiences considerable pain and he then has to go back to the site office and remove the protection, give himself a break for fifteen minutes, and then continue with the assessments. That happens at least five times a day if he is attending a site for a full day.
68 In cross-examination, the plaintiff explained he was working full time with J&P on a contract basis – a two-year contract, working eight hours a day. The contract ended after the accident and he found alternative employment with Webber Design.[35]
[35]T27
69 The plaintiff agreed that his current work with a major engineering company managing design and engineering considerations of major projects in New South Wales and Victoria, was satisfying work for him. He worked as part of a team of engineers in structural and civil engineering. He was not working with a jackhammer or power tools and his job was really looking at plans.[36]
[36]T28
70 The plaintiff goes onsite on average once a month. Sometimes when he attends a site there is noisy work going on. Only sometimes he needs to wear earmuffs, depending on what is being done. He would then tell those onsite that wearing earmuffs for a long time might be an issue for him. He would need to take a break after an hour and a half before being able to work further. An hour-and-a-half was plenty of time when working on a certain portion of the site, but not enough time if there was a massive floor plan area. He did the calculations and read the plans in his own office.[37] On occasion, he had assistance on a site and worked alone.[38]
[37]T30
[38]T31
71 The plaintiff confirmed his taxable income for 2019-2020 was $61,000. His 2020 return showed income of $80,000.
72 In his 2019 return, the plaintiff’s main business activity was described as engineering design and engineering consulting services. It was noted his ABN had been deactivated and cancelled. He set up that ABN and business when he was working as a contractor with J&P. He now has a hobby business which is basically photography and music. However, any earnings from the business are negligible and he gets some money from Spotify for his music.[39]
[39]T33
Dating
73 As of April 2019, the plaintiff did not have a girlfriend. He was embarrassed about his ear and lost confidence in social settings because he felt self-conscious about the way he now looked and he lost confidence in himself and his appearance.
74 The plaintiff imagined he would now be in a committed relationship and be looking at having children at this stage. His loss of confidence in his appearance has affected his ability to form relationships.[40]
[40]Second affidavit
75 The plaintiff has no confidence with the opposite sex[41] and on the occasions when he has been on a date, he has been asked what happened to his ear and gets embarrassed when required to explain. He feels people are looking at his ear when he is talking to them. He has not been on many dates and has not been able to form a relationship due to this. He feels like he is deformed in some way.
[41]T26
76 The plaintiff confirmed he feels he is being judged when he goes on a first date:
“It’s more about judging the book by its cover and that’s how I feel like when they look at me and they see that deformity from my ear and they have some concern about that.”[42]
[42]T52
77 The plaintiff lacks confidence when he first meets people and worries whether anyone would go with him on a second date. He has “zero confidence” in himself.[43] The scarring and appearance of his ear feels so deformed to him. He feels depressed about the way he looks and it serves as a constant reminder about the accident trauma.
[43]T52
78 The plaintiff agreed he has an active social life with the people he knows and he is a keen enthusiast in motorcars. He is still interested in high performance cars, and he is very proud of his own car and he is interested in other peoples.[44]
[44]T35
79 The plaintiff agreed he met new people at work and socially. He attended car enthusiast meets. He hangs out with his friends and they sometimes introduce him to new friends.[45] He engages in social activities with people he trusts, and he is very close to. He hangs out with Giles.[46]
[45]T45
[46]T35
80 The plaintiff confirmed he is active on social media with Inter-Pal’s, LinkedIn and Facebook, and he used to have Instagram.[47] He posted on 7 March 2020 that he was enjoying his days out despite the Corona virus. He was photographed with work colleagues with whom he had become friends.
[47]T35
81 The InterPals site on which he posts is similar to Facebook, but it connects other people from different countries. It is mainly used for learning other languages.
82 The plaintiff updated his profile picture on this site in October 2018 because his picture was out of date. He took the photograph, facing a mirror, showing two different lengths of the right and left ear.[48]
[48]T53
83 The plaintiff agreed, if he was highly embarrassed by his appearance and did everything he could to conceal it in public, he would not have posted that photograph. He agreed that while there is a deformity or disfigurement, it is not one that is so offensive to him that he does not post photographs of himself that show exactly what was seen in that photograph.[49]
[49]T18
84 The plaintiff agreed that on 11 October 2020, he posted the number of COVID cases and suggested the police “watch over them and let the rest of us go. He was not the only one feeling cooped up.” He agreed he had written “We can then hit the streets again” and that he could not wait for that.[50]
[50]T50
85 In re-examination, the plaintiff said he did not like meeting new people because they tended to look at him and judge him as to how he looked. They sometimes asked him what had happened, and they could see the scar on his ear. That constantly reminded him of the accident and the trauma, and it frustrated him explaining the whole situation again and bringing back memories of the accident and how the car lowered on him. That made him very, very nervous.[51]
[51]T51
86 The plaintiff explained:
“… when you meet someone new you don’t see them as a character wise, you see them as a visual wise, and that’s why I’m very self-aware about that and meeting new people.”
87 The plaintiff has olive skin and usually it did not get burnt; however, since the accident, his right ear got burnt and he had to keep it protected to avoid sunburn.
88 The plaintiff has become much more susceptible to becoming sunburnt post accident and he is not sure if this is due to reduced blood flow. He is restricted in the amount of time that he can spend outdoors due to this. He used to enjoy going to the beach and being outdoors and is very restricted in these activities now.
89 During hot summer days, he could see his right ear become red.[52]
[52]T14
90 When it was suggested to the plaintiff that if he was very restricted in spending time at the beach and being outdoors, he could remedy that by putting on sunscreen or a hat, he explained that he did not want to put on a hat and he had never used sunscreen. If a friend asks him, he is concerned about going to the beach.[53]
[53]T48
91 Both the plaintiff’s ears are pierced, initially with a 10-millimetre piercing. He has not worn earrings since the surgery. He had a large hole in both lobes before then which has taken a long time to heal.[54] He felt quite sad that he had to remove the big earrings because it reminded him of his travel with his brother in Europe.[55]
[54]T15
[55]T56
Surveillance
92 The plaintiff was shown footage taken in January 2020 which he had previously seen.
93 On 9 January this year, he was shown walking in the carpark at Crown Casino. As a member at Crown, he gets cheap parking.
94 The plaintiff was later shown at Mustang Motor Sports, talking to a man who has been fixing his car – which was the love of his life – over the last two years.[56]
[56]T39
95 That man knew the plaintiff and knew about the accident. The plaintiff agreed, when talking to the man, his right ear was facing towards him. The plaintiff was afraid to look under the car. He agreed he had not chosen to stand on the other side of the man so his right ear was not facing the man when speaking to him.[57]
[57]T40
96 The plaintiff did not hide his left ear from the mechanic because he is comfortable with him because he knew him on a personal basis.[58]
[58]T53
97 When walking through the corridors of Crown Casino and into the shopping area, the plaintiff agreed he was taking no steps to avoid exposing his appearance to other people, but explained he was well away from everyone. He had to go from point A to B and needed to go through the public. He also needed to do so just in his daily life working at 31 Queen Street.[59]
[59]T42
98 The plaintiff does not go to the bars or gambling areas any more at Crown Casino, because he does not want to go where there are potentially a lot of new people, especially in the gaming facility and bars where everyone sits next to each other. He does not want to confront or meet new people because of his appearance and he is afraid they will ask him and judge him.[60]
[60]T57
Lay witness
99 The plaintiff’s friend, Gilles Didier Sambat, swore an affidavit on 15 January 2020. He is a plasterer and graphic designer and has known the plaintiff for about ten years and sees him regularly. He is aware of the plaintiff’s surgery following the accident.
100 Since then, Mr Sambat has noted significant changes in the plaintiff. Pre-accident, he was confident, happy and outgoing. He had confidence when dealing with people and meeting and forming new relationships, as well as dating. He was also an avid motorbike rider and enjoyed a range of activities, both in and outdoors, and he seemed very happy.
101 Post accident, the plaintiff has changed significantly. He is no longer confident. He is very aware and self-conscious about the appearance of his right ear and associated scarring. He often complains he feels low and depressed as a result of his ear’s appearance and how it affects him.
102 Pre-accident, the plaintiff did not have a complex, but now he seems to have a major complex in relation to the appearance of his ear. He lacks confidence and is no longer interested in meeting new people. He attempts to turn the other way when he talks to people so they cannot see his right ear. He is worried people will ask him about the appearance of his ear and this will lead to him having to further explain the situation.
103 The plaintiff now lacks confidence in going out and meeting new people. He used to enjoy motorbike riding and would go regularly on weekends. Post accident, the amount of motorbike riding he does has diminished significantly. The plaintiff had problems wearing a helmet because it would not fit properly due to the deformed shape of his ear and caused him a lot of pain and discomfort. When they went on rides, the plaintiff would often have to stop and take off his helmet to give his ear a rest. They used to enjoy long motorbike rides in the country, but post accident they only went on very short rides. The plaintiff’s bike was stolen in June 2019 and he did not replace it due to the problems he had when riding and his inability to enjoy this hobby.
104 The plaintiff seems very self-conscious about his ear’s appearance. He often talks to Mr Sambat about it and how he worries about it, and how he wishes he could change it. The plaintiff told him the appearance of his ear makes him feel deformed.
105 The plaintiff’s temperament and personality has changed as a result of the accident and the subsequent injuries.
The Plaintiff’s medical evidence
Treaters
106 The plaintiff was admitted to The Alfred on 22 October 2017, having suffered a near-amputation of his right ear. He received intravenous antibiotics and had a tetanus booster. He was admitted to the ward under the care of the Trauma Unit and taken to theatre under the care of the Plastic Surgery Unit, who debrided and repaired the laceration.
107 The plaintiff’s post-operative progress was satisfactory. He received analgesia and his dressings were changed. He was discharged on 25 October 2017.
108 The plaintiff attended the Plastic Surgery Outpatient Clinic on 31 October and 8 and 15 November 2017. When last seen, it was noted that his wounds were satisfactory. There was some persisting erythema. His sutures were removed. He was to apply an antibiotic ointment and have further review by his LMO in a week.
Medico-legal evidence
109 The plaintiff underwent examination by medico-legal examiners organised by both parties. The plaintiff relied on all the medico-legal reports.
Plastic and hand surgeon
110 Mr Murray Stapleton saw the plaintiff on behalf of the defendant in October 2018.
111 Mr Stapleton noted that the plaintiff’s right ear was clearly disfigured, was tender to the extent he could not lie on it in bed at night, and from time to time he had a problem when seating the arm of his glasses, which he was required to wear daily. The scar and disfigurement were of emotional concern to him.
112 On examination, Mr Stapleton noted the upper part of the ear and lobe were much more prominent on the right side, which was injured, compared to the uninjured left side. There was a scar that almost completely circumferentially stretched around the upper part of the right ear, as photographed.
113 Mr Stapleton thought the prognosis for the right ear injury was good. The disfigured right ear could be improved by the upper and lower parts of it being set back to match the other side, noting the plaintiff was then considering that as an option. For now, the condition should be regarded as stabilised.
114 The plaintiff’s scar was not ulcerated. The laceration scar was roughened. There was no skin disorder affecting the function of the skin.
115 Mr Stapleton noted that it is the tenderness of the right ear which interferes with activities of daily living.
116 Mr John Crock, plastic and reconstructive surgeon, examined the plaintiff on 9 January 2019.
117 Mr Crock noted the plaintiff had a repair of his subtotal amputation of the upper pinna of the ear, and was discharged home three days after surgery.
118 However, the upper pole of the right ear was numb and the plaintiff told him it woke him at night and hurt if he tried to lie on a pillow. In addition, he could not wear headphones for any length of time because his ear became too irritable. He was rubbing Bio-Oil on the ear for a time, but he stopped because it did not make any difference.
119 On examination, the plaintiff’s right ear was obviously deformed, with a scar running through the helical and antihelical folds and the scaphoid fossa. The ear had a reduced sensation, but had dysesthesia when touched.
120 Mr Crock thought it would be expected the plaintiff would be left with permanent sensory deficit to the ear. The scar revision may minimally improve its appearance. The first six months post surgery should involve a fairly rigorous scar management regime that would require daily maintenance.
121 While the plaintiff’s appearance could be improved with restorative surgery, this would not address the nerve damage and it is unlikely this would make any difference to the current symptomatology, in particular, dysesthesia and the waking at night, because of the numbness in his ear, and his inability to wear ear plugs.
122 The two latter factors prevent the plaintiff from wearing earphones for any length of time and also interfere with his sleep patterns and cause him discomfort and waking at night.
123 Dr Damon Thomas, plastic, reconstructive and hand surgeon, examined the plaintiff on behalf of his solicitors in January 2021.
124 Dr Thomas described the injury as near amputation of the right ear. The superior part of the ear was successfully salvaged.
125 Dr Thomas noted the following complaints:
(i)right ear irritation and paraesthesia with direct pressure;
(ii)right ear intolerance of heat, such as direct sunlight;
(iii)right ear inability to have a constricting object over the ear or head. Examples being unable to wear a motorbike helmet for greater than an hour-and-a-half or headphones which cover the entire ear for greater than that period, and an inability to wear protection earmuffs for a period longer than his;
(iv)difficulty with sleeping;
(v)unable to lie directly on the right side of the ear, and if he inadvertently did so, it woke him up and he had to turn over;
(vi)cosmetic appearance of the right ear due to scarring deformity and the fact that people comment on the appearance.
126 The plaintiff currently preferred not to have revisional surgery due to the psychological trauma surrounding the event.
127 The main issues with work were difficulty and inability to wear ear protection for longer than an hour-and-a-half. On specific questioning, the plaintiff did not feel his right ear has any effect on his activities of daily living.
128 On examination, Dr Thomas noted the plaintiff had a scar on the anterior surface of the right pinna at the junction of the superior and middle thirds, which ran across the superior crus of the antihelix. The anterior scar measured 40 millimetres in length and 4 millimetres in width. The posterior scar measured 40 millimetres in length and 4 millimetres in width. There was associated deformity of the underlying cartilage framework with prominence of the ear, which was asymmetrical compared to the uninjured left side.
129 In terms of diagnosis, there was right ear traumatic near amputation and surgical repair. The plaintiff had secondary issues with a post-traumatic scar on the anterior and posterior surface and underlying deformity of the cartilage framework, resulting in ear prominence. He also had an element of hypersensitivity and discomfort, particularly with direct pressure and heat due to underlying post-traumatic sequelae. He had psychological issues surrounding the appearance of the ear and was self-conscious due to that.
130 In Dr Thomas’ opinion, the restrictions relate to a combination of direct pressure and heat exposure. The plaintiff has restrictions in anything which has direct contact on the right ear, varying from motorbike helmet, audio headphones, protection at work, being unable to have these objects directly touching his ear for an hour-and-a-half or more, probably less in regard to ear protection.
131 The plaintiff therefore has difficulty riding a motorbike, wearing headphones, which was a hobby, and has to have the right earpiece sitting off the pinna and difficulty wearing earmuffs for any work-related exposure. He also has difficulty having direct sunlight on the ear. There are also issues with the appearance of the ear, thereby confidence, and people asking him questions about it.
132 Issues in relation to social interaction are primarily due to the cosmetic appearance of the ear, as the plaintiff is sensitive about how it looks. People who do not know him ask him intrusive questions about it which he finds irritating and affects social interaction. He also has restrictions in his ability to undertake his hobbies, including motorbike riding because of problems wearing a helmet, and he had to give this up.
133 Dr Thomas confirmed the plaintiff’s difficulties undertaking his pastime of music and problems with wearing headphones. This therefore affected his social network and interaction, and therefore recreational activities. Domestic tasks did not appear to be affected, except the plaintiff had difficulty sleeping on his right side.
134 The prognosis was for one of permanent impairment. Dr Thomas would offer, as a potential treating surgeon, prominent ear correction to improve the loss of the antihelical fold and the asymmetry of the cartilage framework. This surgery would be aimed to improve the appearance of the ear and there would be no change in the issues with pain and hypersensitivity.
ENT
135 Mr Michael Silverstein examined the plaintiff on behalf of the defendant in November 2018.
136 Mr Silverstein found the plaintiff’s sense of taste and smell intact. There was a good range of jaw movement, and nasal passages were more than adequate. The plaintiff had a hearing test within the normal range after the accident.
137 Mr Silverstein diagnosed a scar and mild deformity of the right ear. He noted on examination the right pinna indicated that it was scarred in terms of the skin. There was an oblique scar running from the apex of the helix towards the external auditory canal. There was also a fine one-centimetre scar in the region of the lobule. He could not detect any evidence of any sensory abnormality. Ear canals and eardrums were essentially normal on both sides, and the plaintiff had excellent hearing.
138 Mr Silverstein thought the plaintiff’s condition had stabilised. He noted the plaintiff was not particularly conscious of the lesion.
Psychiatric
139 The plaintiff saw Dr Nathan Serry, psychiatrist, in October 2018 at the request of his solicitors.
140 In terms of ongoing physical symptoms, the plaintiff described sensitivity over the right ear and burning-type pain when the weather was hot. He was very much aware of the altered appearance of his right ear and a difference of sensation between his ears. He invariably woke at night in bed if he rolled onto his right side given the sensitivity of the right ear. Post-accident headaches had settled. He was not having any active treatment.
141 The plaintiff reported he managed adequately at work and he was essentially unrestricted with domestic duties. He had, however, noted restrictions with certain activities. He did ride a motorbike but had difficulty getting comfortable when putting his helmet on. He was very involved in music and had some difficulty with headphones. He also had a tendency to tinker with vehicles and was now very apprehensive about working under cars. He said his social life was maintained.
142 Following the accident, the plaintiff was shocked, in severe pain, distressed and rather confused and dazed. Since then, he had been upset by what he considered to be his changed appearance. He was apprehensive about how his parents would react when they saw him after the accident.
143 The plaintiff was particularly aware of disturbed sleep.
144 While there had been no substantial compromise to confidence or self-esteem levels, the plaintiff was very much aware of his changed appearance. He had intermittent accident-related dreams and described having some flashback type experiences whenever working under a car or if he saw another accident. He had not experienced sustained depression, he was motivated and interested and able to enjoy himself.
145 On mental state examination, the plaintiff did not describe any untoward frustration. He was not particularly anxious or apprehensive, but he did describe having been particularly traumatised by the accident circumstances.
146 In terms of a psychiatric illness arising from the accident, it appeared as though the plaintiff had symptoms and features of a partially resolved Post-Traumatic Stress Disorder, a condition of mild severity and intensity.
147 In terms of consequences, personal relationships did not appear compromised. The plaintiff was working in an unrestricted fashion; however, some of his leisure activities had been restricted, in particular, motorbike riding, given the discomfort of wearing a helmet, and certain aspects of music.
148 Dr Serry thought the plaintiff had a favourable prognosis, noting he was a previously well-adjusted and rather uncomplaining individual. He had managed his accident-related injuries appropriately, but had not had any mental health intervention, and consideration could well be given for him to be referred for brief and trauma-focused psychological counselling to assist him in coming to terms with the not insignificant impact of the accident.
149 Dr Gregor Schutz examined the plaintiff on behalf of his solicitors in December 2020.
150 The plaintiff then reported he had some ongoing ear pain and discomfort in certain situations. If he tried to sleep on it that would wake him up. There were problems with over ear headphones, helmets or protective gear in the workplace, with a limit for an hour-and-a-half to two hours due to pain. He got a burning sensation in summer.
151 In terms of his mental health, the plaintiff reported he was conscious about how he looked and felt as if his appearance was uneven, and that upset him quite a lot. He thought about the scarring when he looked in the mirror. He did not try to cover up the scar. He was self-conscious at the start until he got to know colleagues. He could struggle to meet with new people but was reasonable with his friends.
152 Dating was awkward, and prospective partners would ask what happened and that could be upsetting to explain. He had gone on dates here and there, but his confidence had been reduced. He felt as if he was somewhat deformed. He was more self-aware. His last relationship was before the accident.
153 The plaintiff had maintained enjoyment, interest and motivation. He continued to do hobbies, including going to car shows and making music. His concentration was reasonable, he did not feel generally worthless or useless and reported no suicidal ideation. He had had a couple of nightmares and occasional flashbacks.
154 On mental state examination, Dr Schutz noted that the plaintiff had a visibly altered appearance of his right earlobe. He had a reasonable range of affect and did not appear anxious or agitated. Cognition was intact and he had no thought disorder.
155 Dr Schutz noted Mr Silverstein’s history that the plaintiff was not particularly conscious of the lesion.
156 On balance, based on the history and mental state examination, Dr Schutz thought the plaintiff had developed a psychiatric condition in the form of a mild Adjustment Disorder with Anxious and Depressed Mood and features of traumatisation. In particular, post accident, with associated scarring, the plaintiff reported self-consciousness, some difficulties meeting new people and reduced engagement in dating, loss of confidence in relation to his appearance and intermittent lowered mood, occasional flashbacks and avoidance of being under a car. His symptoms were associated with subjective distress and impairment in functioning.
157 Dr Schutz advised that the plaintiff may benefit from four to eight sessions with a psychologist to focus on his self-consciousness, but he did not require psychotropic medication or review by a treating psychiatrist.
The Defendant’s evidence
158 No medical evidence was relied on by the defendant, despite having arranged a number of medico-legal examinations of the plaintiff.
159 Further, a large amount of the defendant’s material related to the plaintiff’s earnings. As no economic loss claim per se was made, these documents were not relevant to my determination.
160 A number of photographs of the plaintiff on social media, some taken by him before and after the accident, were tendered.
161 The defendant relied on film of surveillance of the plaintiff undertaken on 9 January 2020.
162 The first film showed the plaintiff walking through Crown Casino carpark at 9.27am. At 10.45am, he was shown walking across a rooftop carpark away from his car.
163 At 11.04am, he was seen entering the showroom office of a car mechanic and then chatting and smiling to a mechanic next to his car. The plaintiff leaned inside the car door and inspected the bonnet.
164 At 11.08am, the car was situated outside the caryard and the plaintiff was filmed again with the same mechanic. The plaintiff stood at the front of the car while the mechanic got under it. The two then stood chatting. The plaintiff at times was seen smiling and laughing. At 5.47pm, he returned to his car at Crown.
165 In a second film that day, at 12.10pm, the plaintiff was shown walking through the Crown Casino carpark. By 12.13pm, he reached the corridors of Crown Casino. He continued walking through the Casino until 12.19pm, when he arrived at Southbank. He then was shown walking through the city, entering his workplace at 12.27pm. At 5.40pm, he drove out of a car park in the CBD.
Impairment of the right ear – sub-paragraph (a)
166 It is not in dispute that the plaintiff suffered an amputation of the upper part of his right ear in the accident after a car crushed his scalp and lacerated his right ear.
167 The plaintiff was hospitalised at The Alfred hospital for three days and later attended Outpatients on two occasions for removal of the sutures and cleaning of the wound. Thereafter, he applied ointment to the ear but otherwise had no treatment.
168 While counsel for the defendant was critical of the plaintiff’s failure to have revision surgery which has been suggested by a number of practitioners, as Dr Thomas explained, that surgery – a prominent ear correction – would be to improve the loss of the antihelical fold and the asymmetry of the cartilage framework. This would be only aimed to improve the appearance of the ear, and there would be no change in issues the plaintiff has with pain and hypersensitivity in the area.
169 As Mr Crock described, this surgery would require excision of the old scar and then a Z or W-plasty wound closure. In addition, the underlying cartilage of the ear would need refashioning, making this relatively complex restorative surgery to the ear – an hour to two hours’ surgery.
170 I accept the plaintiff’s explanation that he is reluctant to undergo this further surgery as he did not believe the initial surgery gave him a significant result cosmetically and he experienced pain and trauma with that surgery and the post-operative treatment. [61]
[61]T80
171 The plaintiff has not taken any painkilling medication since the early post-operative period and there is no evidence of the requirement for ongoing painkilling medication.
Credit
172 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[62]
“… 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.”
[62](2010) 31 VR 1 at paragraph [12]
173 Counsel for the defendant submitted the plaintiff overstated the extent of his injury related difficulties in his affidavits.
174 In response, counsel for the plaintiff submitted that the plaintiff was a straightforward witness who made proper concessions and there was no overstatement. He was measured and careful in his evidence, which can be relied on.[63]
[63]T88
175 In my view, the plaintiff was generally a credible witness, but he did at times exaggerate his level of restriction and disability. His affidavits suggested significant work consequences yet in court he explained he would only have to do a site visit one a month and even on those occasions the need for earmuffs on site was limited. His job at J&B was on a contract basis – for two years – and due to expire after the said date, not the long-term situation he deposed to.
176 Further, I do not accept the plaintiff’s evidence as to his level of distress and difficulty in social situations with friends or on the dating scene given my findings as to the extent of his disfigurement which I will discuss later. The reaction he describes would be more in keeping with a gross disfigurement arising in embarrassing circumstances, which is not the case here.[64]
[64]T64
177 Significantly, the plaintiff agreed with counsel for the defendant that he would not post photographs he had taken of his face which clearly showed the deformity of his ear if he was so concerned about his appearance.
178 It was not apparent from the short surveillance film that the plaintiff had any particular difficulty/self-consciousness about his appearance when walking through the Crown Casino car park and facility or talking to a mechanic who was working on his car.
Consequences
179 The plaintiff is still a young man, aged only thirty.[65]
[65]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [43]
180 The plaintiff experienced significant pain and trauma at the time of the injury and following the surgery. However, he does not complain of any ongoing ear pain. His issue is more with the sensitivity of his ear when pressure is placed on it by items such as headphones, a helmet or earmuffs, or when he lies on this right side to sleep as Dr Thomas explained.
181 Accordingly, this is not a situation where the plaintiff suffers a continuous substantial level of pain. Confirmatory of this is the fact that he has not required painkilling medication for some years.[66]
[66]Stijepic (supra) at paragraph [48]
182 However, I accept, as a result of the accident injury, the plaintiff has sensitivity/tenderness in the area of his right ear when pressure is applied to it, as all medico-legal examiners described, in particular, Dr Thomas, when he recently saw the plaintiff in January this year.
Activities
183 Counsel for the plaintiff submitted the plaintiff had certain activities that were dear to him – riding motorbikes and making music – which had been “severely hamstrung” by reason of his ear injury and its hypersensitivity. His sleep is disturbed by it.[67] He has an ear that is significantly deformed and becomes red with heat.[68] He is very self-conscious about it. He cannot look in the mirror without seeing it, and it has spoiled his life in terms of his confidence going forward, meeting new people, particularly in the dating scene.[69]
[67]T78
[68]T82
[69]T79
184 Further, the plaintiff has now had to give up motorbike riding completely because of his difficulty with the helmet. That is a significant issue for him. He also described being very limited in mixing and working on electronic music because of his problems with headphones.[70]
[70]T80
185 Particular reliance was placed on the report of Dr Thomas, who confirmed the range of consequences described by the plaintiff.
186 Further, counsel relied on Dr Schutz’s diagnosis of a mild Adjustment Disorder which can also be taken into account when considering the subparagraph (a) impairment.[71] The plaintiff stated that at times he felt depressed, and his sleep pattern had changed.[72]
[71]T84
[72]T85
187 In terms of Richards v Wylie[73] and Garcia,[74] it was submitted the plaintiff is a man who had been psychologically well pre accident, enjoying his life, who has now got an impairment under both (a) and (b), such as to give him a diagnosable psychiatric condition. “He had previously lived a happy, confident life, but things had changed now.”[75]
[73]Supra
[74]Supra
[75]T86
188 It was submitted the injury has clearly had a serious effect on the plaintiff, a very considerable effect, if only measured by the fact that he now has a psychological condition. The prognosis of the ear is poor. Surgery might improve the appearance slightly, but the does not want to have it – a reasonable decision – as it not going to make any difference to nerve damage and hypersensitivity.[76]
[76]T87
189 In summary, it was submitted this is a very considerable outcome for a young man who has got disturbed sleep, and had to give up two hobbies that are heartfelt, and has pain on a nightly basis when he rolls over on his ear. His confidence has been diminished greatly.[77]
[77]T88
190 Reliance was placed on the plaintiff’s friend’s affidavit, corroborating his complaints.[78]
[78]T88
191 Counsel for the defendant submitted any present impairment is minor, particularly since there are “workarounds” such that the consequences are not more than significant or marked to reach the degree required for seriousness.[79]
[79]T60
192 It was submitted it is a matter of looking at the totality of the function and the consequences. The primary functions are retained, and the claimed impairment is not of the order that is required to meet “more than significant or marked”, particularly where there are “workarounds and tolerances”.[80]
[80]T61
193 There still is the tolerance for an hour-and-a-half wearing a motorbike helmet and using big headphones. The plaintiff can use an in-ear earpiece for his music activities. He needs earmuffs at work only occasionally. If the sun was a major issue, then he would wear a hat or sunscreen. He had not tried using a pillow at night to stop himself rolling on his right side, and there is no evidence that any lack of sleep has affected his job.[81]
[81]T58, 59
194 Further, financially, the plaintiff is now earning $84,540 in the most recent financial year, having earned $62,730 in his previous job.
Findings
195 In my view, it is a fair summary of the position in the present case that while the plaintiff suffered from significant pain following what was clearly a traumatic accident and that pain continued for some time in the post-surgery period, thereafter his issue has been with hypersensitivity and discomfort, not pain. This situation affecting a range of activities will continue indefinitely and cannot be improved by surgery.
196 The Court of Appeal in Stijepic v One Force Group Australia Pty Ltd,[82] stated:
“It is to be remembered that in reaching a conclusion whether a worker has established that he (or she) suffered serious injury ‘the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained’.”[83]
[82](Supra) at paragraph [44]
[83]See Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
197 While the plaintiff’s involvement in some pre-accident activities has been limited by his ear hypersensitivity, he is still able to engage in these activities.
198 The plaintiff gave up motorbike riding in 2019 when he chose not to replace his bike when it was stolen. Until that time, he was able to wear a helmet for up to an hour and a half.[84]
[84]History to Dr Thomas in January 2021 and to Dr Schutz in December 2020
199 The plaintiff can use in-ear headphones to mix and produce music which he puts on Spotify for a small fee. He has produced two albums of his own music post accident – in 2019 and 2020 – that have been posted on Spotify. He last produced an album of his own music in 2012 – some years before the accident. He can still use larger ‘can’ headphones for up to an hour-and-a-half before he has to take them off because of ear discomfort.
200 At present, the plaintiff is still able to engage in these activities that were important to him and thus his injury-related restrictions can be described as “more than significant or marked” but not “at least very considerable”. He can undertake his activities for up to an hour-and-a-half and he is able to resume them after a break. As Dr Schutz recently described, the plaintiff “maintained enjoyment, interest and motivation”.
201 There is no restriction in his ability to do domestic chores, and the plaintiff does not feel his ear deformity has any effect on his activities of daily living as he recently told Dr Thomas. Further, I do not accept any problem keeping his glasses on described by the plaintiff is significant.
202 Any issues with sleep that he describes are not more than significant or marked. It is not a matter of not being able to sleep or go to sleep because of ear pain. The plaintiff simply has to be careful not to roll over onto his right side during the night.
203 The plaintiff is still active on social media. As counsel for the defendant submitted, the plaintiff’s post about getting out socially during the virus, about which he was cross examined, does not sit comfortably with the person who said “I really don’t like being out and seeing new people”. It shows an apparently happy social life with work colleagues whom he refers to as friends.[85]
[85]T77
204 While I accept the plaintiff may struggle to feel confident meeting new people because of the appearance of his ear, the degree of difficulty he describes is not consistent with the visible disfigurement and the fact that the accident circumstances are easily explained in conversation.[86]
[86]T66
205 While I accept the plaintiff has a level of self-consciousness as to the appearance of his ear, it is not such that he totally avoids social contact and in fact he is able to work full time, has friendships with his work colleagues and is able to go on dates. He continues to attend and enjoy car meets.
206 I accept that there may be some embarrassment when commencing dating or meeting new friends, but this embarrassment is not of the magnitude that the plaintiff takes active steps to hide his ear in social situations or at work.
207 On worksites, on the very infrequent occasions when he requires earmuffs, the plaintiff can wear them for work for up to an hour-and-a-half before having to take a break and then resuming work wearing the ear protection.
208 The plaintiff is therefore able to work full time without any significant interference in his ability to undertake all the necessary tasks. It was not submitted that his work was interfered with, although that was deposed to. Further, his income has substantially increased since the said date and he continues to get satisfaction from his job.
209 While the plaintiff’s ear becomes red with heat and he has an increased risk of sunburn, he can take steps to reduce the latter by wearing a hat or using sunscreen.
210 Pursuant to Richards v Wylie & Anor,[87] and also Garcia,[88] when considering an application under sub-paragraph (a) for injury suffered in a transport accident, psychological consequences of the injury can be taken into account when assessing seriousness.
[87]Supra
[88](Supra) at paragraph [27]
211 I accept the recent diagnosis by Dr Schutz of a Mild Adjustment Disorder with Anxious and Depressed Mood (and features of traumatisation). I make this finding despite the view of Dr Serry, psychiatrist, who saw the plaintiff some time ago in October 2018, not sharing the Mild Adjustment Disorder diagnosis, but noting the plaintiff was very much aware of a changed appearance.
212 However, even having taken account the expected emotional consequences of the injury as discussed by President Winneke in Richards & Anor v Wylie,[89] and the psychological response that I am entitled to consider under Garcia,[90] I am not satisfied, when looked at as a whole, any impairment relating to the right ear under sub-paragraph (a) is “serious”.
[89]Supra
[90]Supra
213 Accordingly, the application is dismissed.
Disfigurement under sub-paragraph (b)
214 Counsel for the defendant submitted this is not a case like Baker[91] where disfigurement itself was sufficient without recourse to consequences to make out the claim. While it is a matter of impression, it was acknowledged that the marring of appearance – disfigurement – which would include both scarring and a change in shape or prominence or symmetry, was significant. It was marked, but not more than significant, more than marked, and not very considerable in comparison to the range of possible impairments.[92]
[91] Baker v Transport Accident Commission (1997) 1 VR 662
[92]T63
215 The plaintiff accepted there was not high discolouration, that his facial shape made the scars less prominent and that only a “couple of people” asked him what had happened to cause the injury.
216 It was submitted the scarring is not of great order. There are two scars – inner and outer – and they are both well healed. The inner is fully concealed. They are both plus or minus 3 centimetres. The colour appears to be close to skin colour. The scars are not keloid, and they are not raised. They probably can only be seen on close examination, and certainly that is the case with that on the inner ear.
217 Whilst there is a change in appearance, shape and positioning, any disfigurement is not grotesque, and it is lessened by the round shape of the plaintiff’s face and natural shape of his ears. To see any difference, you have to look at his face very squarely, and with the slightest tilt, you do not see his right ear.[93]
[93]T64
218 There was nothing in the driver’s licence issue, because the plaintiff’s right ear was not visible on his old licence photograph. It was submitted that was an example of the plaintiff being very willing to attribute everything to his appearance, but without foundation.[94]
[94]T65
219 Further, it was submitted the Court should not readily accept the significant embarrassment and dating issues the plaintiff described.[95]
[95]T64
220 In terms of serious disfigurement, counsel for the plaintiff pointed out the obvious C‑shape of his ears described by the plaintiff. Dr Thomas’ examination findings setting out the extent and location of the scarring were also relied upon.[96]
[96]T81
221 Counsel highlighted the photograph the plaintiff took of himself in the mirror, posted on social media in October 2018, as showing how obvious and deformed the right ear was, with the lobe and the upper part of the ear being more prominent, different and having a C shape.[97]
[97]T89
222 It was submitted while the plaintiff has come to terms with, or tried to come to terms with, the fact that he looks different, that is what he is left with. His self-consciousness is “manifest” throughout his evidence.[98]
[98]T90
223 Counsel submitted “the whole look”, not just the scarring, had to be considered. It was not suggested it was grotesque, and that did not have to be proved. It was submitted the scarring for this man was very considerable, and the deformity and the consequences to him were very considerable.[99]
[99]T90
224 There was reliance on the plaintiff’s problems within the dating scene and his affidavit evidence about this which was not challenged. As the plaintiff said, books are judged by their covers on the first date, and he feels his cover is a bit off, his face is a bit off.[100]
[100]T87
225 Taking into account all the evidence, while there is a permanent deformity/disfigurement of the plaintiff’s ear, I am not satisfied that this is such to warrant a finding of permanent serious disfigurement. Clearly, the disfigurement is permanent, “significant” or “marked” but, in my view, not “more than”.
226 From my own observation, the scarring is not visible unless standing very close to the plaintiff. It is not raised, keloid or reddened.
227 The disfigurement largely relates to the unusual c-shape of the plaintiff’s ear, with a part missing, and a protruding earlobe and upper part of the ear.
228 While the disfigurement is located on the plaintiff’s face, his right ear deformity is not particularly ugly or obvious and, in my view, it does not meet the statutory definition of seriousness. I make this finding, also taking into account my views as to the claimed psychological effects of the permanent disfigurement that are discussed above in the context of the subparagraph (a) application.[101]
[101]See Garcia (supra) at paragraph [27]
229 Accordingly, the application pursuant to subparagraph (b) is also dismissed.
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