Sghendo v Victorian WorkCover Authority
[2024] VCC 1624
•29 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Unrestricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-01190
| JAMES SGHENDO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 September 2024 | |
DATE OF JUDGMENT: | 29 October 2024 | |
CASE MAY BE CITED AS: | Sghendo v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1624 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – crush injury to the right index finger – pain and suffering – scarring and disfigurement
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013 (Vic)
Cases Cited:TTB SMS Pty Ltd v Reading [2020] VSCA 203; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Transport Accident Commission v Garcia [2015] VSCA 225; Ingram v Ingram [1996] 2 VR 435
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards KC with Mr A Theodore | Zaparas Lawyers |
| For the Defendant | Mr C Miles | Russell Kennedy |
HER HONOUR:
Introduction
1Mr James Sghendo, the plaintiff, is a fifty-one-year-old streetsweeper operator. He claims that he suffered a crush injury to his right index finger on 6 July 2021 in the course of his work for the City of Darebin (“the employer”).
2Mr Sghendo seeks leave to bring a common law proceeding for pain and suffering damages pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”). His claim is that he has a “serious injury” of his right hand.
3Mr Sghendo puts his claim under paragraph (a) and/or (b) of the definition of “serious injury” in s325(1) of the Act.
4To succeed in his application pursuant to paragraph (a), Mr Sghendo must establish that the permanent impairment consequences of his compensable right hand injury are “serious”; that is, that they can be fairly described as being “more than significant or marked”, and as being “at least very considerable”.
5To succeed in his application pursuant to paragraph (b), Mr Sghendo must establish that he suffers from a permanent “serious disfigurement”.
6The Victorian WorkCover Authority (“the VWA”), the defendant, accepted that Mr Sghendo suffered a compensable injury to his right hand in the course of his employment.
7The VWA contested the application pursuant to paragraph (a) of the definition of “serious injury” on the basis that the claimed permanent impairment consequences did not satisfy the statutory threshold.
8As to the paragraph (b) claim, the VWA submitted the Court ought not to find the disfigurement satisfied the statutory threshold.
9The issues for determination are:
(a) Was Mr Sghendo a reliable witness?
(b) What are the permanent impairment consequences of Mr Sghendo’s compensable right hand injury?
(c) Are the permanent impairment consequences “serious”?
(d) Is the disfigurement of Mr Sghendo’s right hand “serious”?
10The relevant legal principles are well known and were not in dispute.
11For the reasons that follow, I find that Mr Sghendo has satisfied his onus to establish that the permanent impairment consequences of his right hand injury are “serious”. I am not satisfied that the disfigurement is “serious” when compared with other cases in the range of possible permanent disfigurements.
Background
12The following matters, I believe, are uncontroversial. As far as any were contested, these represent my findings save where otherwise indicated.
13Mr Sghendo was born in Australia. He completed Year 11 and has since worked as a truck driver and machine operator.
14Mr Sghendo is right hand dominant.
15He is qualified to operate forklifts, medium rigid trucks, and work as a security guard. He has a firearms licence.
16In about 2016, Mr Sghendo began working for the employer as a streetsweeper operator on a casual basis.[1] His role became permanent full time in April 2019. From time to time, he was required to work in the waste collection team.
[1]Transcript (“T”) 21
17On 6 July 2021, Mr Sghendo was working in the waste collection team. In the process of attempting to loosen a garbage bin which had become stuck under the loader bar of the garbage truck, Mr Sghendo’s right index finger became caught between the bin and the bar and was injured. Upon removing his glove, Mr Sghendo found the end of his right index finger was missing, and blood was spurting from the wound.
18Mr Sghendo was taken to Northern Hospital by his team leader. He was then transferred to John Fawkner Hospital where a plastic surgeon debrided the wound and performed an ostectomy, full-thickness skin graft and nail repair. The graft was harvested from Mr Sghendo’s right forearm.
19Following discharge from the hospital, Mr Sghendo underwent hand therapy which ended on 16 August 2021.
20Mr Sghendo has not consulted his general practitioner (“GP”) regarding his finger injury, nor has he been prescribed any medication for the injury, since 2021.
21Mr Sghendo was unable to work for several weeks following his injury. He began a graduated return to work in around September 2021. He resumed his pre-injury duties shortly thereafter.
22On 23 March 2022, Mr Sghendo ruptured his right bicep at work with the employer.[2] He was off work for about six weeks because of that injury and then had a graduated return to work. That injury has been, and continues to be, treated conservatively by means of regular osteopathic care.
[2]Amended Defendant’s Court Book (“DCB”) 12-13
23On 10 July 2023, Mr Sghendo lodged a Worker’s Injury Claim form alleging that he suffered a psychological injury due to bullying and harassment.[3] He did not work between July 2023 and January 2024 by reason of that psychological injury.
[3]DCB 6
24On 3 June 2024, the employer terminated Mr Sghendo’s employment for alleged misconduct (unrelated to the incident the subject of this application).[4] Mr Sghendo denied any misconduct. It is not necessary to resolve that issue for the purpose of this application.
[4]Affidavit of Yvette Fuller affirmed on 12 September 2024, paragraphs 6 to 9: DCB 2-3
25Since June 2024, Mr Sghendo has performed some casual labouring work and has sought new employment. He secured employment as a full-time streetsweeper operator with a new employer and was due to start that job shortly after the hearing of this application.
Was Mr Sghendo a reliable witness?
26At the start of the case, counsel for the VWA foreshadowed a possible issue as to Mr Sghendo’s reliability. Ultimately, that issue was not pursued by counsel for the VWA during closing submissions.
27Senior Counsel for Mr Sghendo submitted that his client was a man of good credit who had acquitted himself well during cross-examination.[5]
[5] T72
28I found Mr Sghendo to be a straightforward witness. He did not appear to overstate the impairment consequences of his right finger injury. He readily accepted there were a range of activities he could still perform, albeit with adaptations. I also note his account of the impairment consequences of his injury was generally supported by the specialist medical opinions.
What are the permanent impairment consequences of Mr Sghendo’s compensable right-hand injury?
29Mr Sghendo tendered two affidavits sworn by him and an affidavit from Lucky Pandelidis, the owner of The Winged Dragon Martial Arts Centre (“the Winged Dragon”). The VWA did not apply for leave to cross-examine Mr Pandelidis.
30Mr Sghendo deposed to experiencing numbness as well as hypersensitivity around the site of the injury. He said his finger always feels cold and is painful, particularly when something contacts the tip of the finger. He said the finger is particularly painful when exposed to the cold. He takes over-the-counter medications in the form of Nurofen as needed.
31Mr Sghendo deposed that his intimate relations had been affected by his injury.
32Mr Sghendo deposed that it is difficult or impossible to perform fine movements with the right hand/index finger. He believes that he has lost strength in the finger and hand and can no longer make a strong fist.[6]
[6] Plaintiff’s Amended Court Book (“PCB”) 7
33Mr Sghendo said that he remained able to operate the hand controls of a streetsweeper but had needed to adjust how he did so. He now used his middle finger and thumb to perform the movements he used to be able to perform with his index finger. Mr Sghendo deposed that this still felt awkward, and he made mistakes operating the streetsweeper.
34Mr Sghendo said that he participated in karate since childhood, and it was a passion. He was a State champion in the early 2000s and competed until about 2016. He held black belts in “Gojurue” karate and Freestyle karate and was a third dan.
35Between about 2013 and 2018, Mr Sghendo ran two businesses teaching karate and self-defence, called Dragonheart Martial Arts Academy and Dragonheart Self-Defence. He ceased operating those businesses as they were not making money.
36Until COVID-19 restrictions came into force in early 2020, Mr Sghendo attended the Winged Dragon approximately three times a week and instructed other students during three or four classes per night.
37Mr Sghendo deposed to not being able to resume karate by reason of his right index finger injury. He said that he is unable to make a satisfactory clenched fist or perform the powerful punching moves required. As a result, karate has been lost to him.
38Mr Pandelidis deposed that Mr Sghendo had been a student at the Winged Dragon since about 2000 and had worked his way up to becoming one of his head instructors, running three to four classes per night, approximately three times a week until COVID-19 restrictions closed the centre. Mr Pandelidis confirmed that Mr Sghendo took part in competitions and coached other students to compete.
39In addition to karate, Mr Sghendo deposed to having a passion for motorbikes and classic cars.[7] He bought and sold them and worked on them. It was an activity that he enjoyed pursuing with his son. Mr Sghendo said that his ability to perform mechanical work on motorbikes and cars has been compromised by reason of his right hand injury and consequently his enjoyment of those activities had significantly diminished.
[7] PCB 8 and T27
40Mr Sghendo deposed to avoiding shaking hands with others as doing so could cause pain in his index finger. He said tasks such as wiping his bottom after going to the toilet or doing up buttons are difficult to complete.
41Mr Sghendo said he struggles to hold cutlery and has difficulty with some household tasks, including chopping food, opening and closing lids, opening cans and using spray cans. He has difficulty performing handyman activities which require fine movements or forceful use of his right index finger or hand.
42Mr Sghendo deposed that his sleep is disturbed due to pain in his finger.
43Mr Sghendo deposed to being embarrassed by the appearance of his finger, and said he tends to hide it.
44During cross-examination, Mr Sghendo agreed that the right bicep injury he suffered in March 2022 continued to be symptomatic. He accepted that he must be careful when moving or lifting something heavy.[8] Mr Sghendo agreed that his bicep injury would have affected his ability to undertake karate and affected his ability to perform any heavy lifting involved in working on his cars or motorbikes.
[8]T14
45During cross-examination, Mr Sghendo agreed that, in August 2023, he told Dr Siotia, psychiatrist, that prior to experiencing psychological difficulties due to bullying and harassment, he regularly performed housework, cooked, socialised, listened to music and worked on his cars. Mr Sghendo agreed that he told Dr Siotia that those activities had all been impacted by his psychological injury. He agreed his sleep was also affected by worry about issues at work.
46Mr Sghendo accepted during cross-examination that he went to Sydney with his partner in November 2021, to Bali in May 2023, and to Port Douglas in November 2023. He acknowledged he goes to the cinema periodically and visits social venues from time to time. Mr Sghendo agreed that he regularly purchases parts for his cars and motorbikes, either in person or online.
47Mr Sghendo and his partner purchased a holiday home at Lake Eppalock in about 2021. Mr Sghendo and his partner renovated the property, with Mr Sghendo performing some of the lighter work. He bought jet skis and a boat to use when staying at the holiday home, which he said were predominantly used by his and his partner’s children.
48This is a convenient point to consider the tendered medical evidence.
Treating doctors
Dr Miguel Cabalag, plastic surgeon
49Mr Sghendo tendered an operation report dated 6 July 2021 which recorded Dr Cabalag as the surgeon. No other report was tendered from Dr Cabalag.
John Fawner Hospital Discharge Summary
50Mr Sghendo tendered the hospital records which documented his treatment immediately after suffering his compensable injury.
Dr Monirul Islam, GP
51Mr Sghendo tendered a letter from Dr Islam dated 17 June 2022, referring him to a psychologist for treatment for psychological difficulties consequent upon his right finger injury.[9]
[9]PCB 23
52The VWA tendered a letter from Dr Islam to Mr Sghendo’s solicitors dated 11 July 2024. The letter related only to Mr Sghendo’s psychological condition. Relevantly, Dr Islam noted that condition caused poor sleep and impacted upon Mr Sghendo’s enjoyment of social activities.
Medico-legal reports
Dr Damon Thomas, plastic and reconstructive surgeon
53Mr Sghendo tendered a report from Dr Thomas dated 4 July 2021. Dr Thomas examined Mr Sghendo that day.
54On examination, Dr Thomas found a partial loss of two-point discrimination over the terminal fifty per cent on the ulnar and radial aspects of Mr Sghendo’s right index finger. There was a 12 x 12-millimetre area of scarring over the terminal segment. That area was hyperpigmented and hypersensitive to touch. Dr Thomas opined that there was intrinsic pain and sensitivity within the scar itself. He noted the finger was shortened, with a partial loss of the nail plate length and a “beak deformity”.
55Dr Thomas opined that the injury was stable.
56Dr Thomas noted Mr Sghendo’s ability to lift was reduced due to reduced strength in the hand, and his ability to use his right hand repetitively or for prolonged periods was significantly reduced. Further, Mr Sghendo’s capacity to perform fine manipulation with his right hand was significantly affected.
57Dr Thomas opined that Mr Sghendo was not at an increased risk of developing arthritis.
Medical Panel Opinion and Reasons
58Mr Sghendo tendered the Certificate of Opinion of a Medical Panel (“the Panel”) dated 12 June 2023, together with the Reasons for Opinion. The Panel comprised Associate Professor Abdul Khalid, psychiatrist; Professor Leanne Rowe, GP, and Dr Keith Elsner, orthopaedic surgeon. The Opinion related to Mr Sghendo’s impairment benefit claim for his right-hand impairment.
59On examination on 15 May 2023, the Panel noted a stable full-thickness graft measuring 1.5 x 1.7 centimetres over the volar aspect of the distal right index finger. There was a thirty per cent amputation impairment of the finger, including most of the fingernail. The Panel noted restricted flexion and extension of the proximal interphalangeal joint, flexion of the metacarpophalangeal joint and distal interphalangeal joint. There was marked hypersensitivity of the scar.
60The extent of variation in the results of grip strength testing with a Jamar dynamometer led the Panel to conclude that Mr Sghendo failed to exert full effort.
61The Panel concluded that Mr Sghendo suffered a crush injury to the right index finger with partial amputation of the distal phalanx, residual dysfunction and hyperalgesic scarring of the skin graft. The condition was stable.
Dr Graeme Doig, orthopaedic surgeon
62The VWA tendered a report from Dr Doig dated 23 January 2023. Dr Doig examined Mr Sghendo on 23 December 2022 and conducted an impairment assessment.
63On examination, Dr Doig found:
“… a 1.5 x 1 cm area on the amputation pulp where the full-thickness graft had been placed, with associated reduced sensation and damage to the cuticle. There was approximately one-third bone loss of the distal phalanx. There was restricted movement of the distal inter-phalangeal joint … Movement of the proximal inter-phalangeal and metacarpo-phalangeal joints was retained, as was the function in the other fingers and thumb.”[10]
[10]DCB 34
64Dr Doig opined Mr Sghendo had suffered a de-tipping injury to his dominant right index finger requiring surgical reconstruction. He continued to suffer from “minor restrictions with respect to manual dexterity”.[11]
[11]DCB 35
Dr Rajiv Siotia, psychiatrist
65The VWA tendered a report from Dr Siotia dated 30 August 2023. The report related to Mr Sghendo’s claim for psychological injury in respect of bullying and harassment.
66Dr Siotia noted that Mr Sghendo alleged that his mental health had been “fine” prior to the workplace issues in mid 2023. Further, Mr Sghendo reported to Dr Siotia that his psychological condition impacted on his performance of housework, cooking, socialising, and working on his cars and motorcycles.[12]
[12]DCB 41
Mr Thomas Robbins, plastic surgeon
67The VWA tendered a report from Mr Robbins dated 15 August 2024. Mr Robbins examined Mr Sghendo that day.
68On examination, Mr Robbins noted:
“… the finger is shortened by about one centimeter (sic) compared to his left index finger. There is a small residual nail remnant. It is not functional. There is a full thickness skin graft on the distal pulp of the [right] index finger at the injury site.
He complains of painful sensitivity over the skin graft when the graft is slightly touched. The reaction appears genuine.
Flexion and extension of all fingers including the injured index finger is normal. His grip seems within normal limits although he did complain it was weaker.
The worker says, because of the tenderness, he does not use his index finger at all, substituting it with the adjacent middle finger. This is considered reasonable.
…
He takes Nurofen about two tablets weekly for throbbing pain in his index finger when the weather is cold. He is receiving no other treatment.”[13]
[13]DCB 49
69Mr Robbins suspected some functional overlay but accepted that tenderness of the skin graft was genuine. He said Mr Sghendo was capable of full-time duties “but without further successful treatment he could not use his index finger and would have to guard it”.[14]
[14]DCB 51
Findings
70Counsel for the VWA acknowledged there was little difference in the opinions of Dr Thomas and Mr Robbins but noted Dr Doig described only a minor restriction with manual dexterity.
71Counsel for the VWA submitted that the Court ought to find that Mr Sghendo sought to “mislead” the Panel when his grip strength was tested.[15]
[15]T58
72Further, it was submitted that no affidavits were tendered from Mr Sghendo’s partner or adult son (with whom he lives) corroborating his account of his impairment consequences.
73Counsel for the VWA submitted that there was a lack of material from treating practitioners, including an absence of material from the treating psychologist to assist in disentangling psychological impairment consequences from those attributable to the compensable injury.[16] Counsel submitted that Dr Islam’s report attributed impairment consequences to Mr Sghendo’s psychological injury and said nothing about the finger, and it was submitted that created a disentangling problem for Mr Sghendo.
[16] T57
74Counsel for the VWA acknowledged the loss of karate was a difficulty but submitted that Mr Sghendo had replaced it with other pleasurable activities including going to his holiday house. Overall, counsel submitted that the ongoing impairment consequences referable to Mr Sghendo’s right index finger injury did not meet the statutory threshold.
75I find that the evidence does enable me to identify the impairment consequences attributable to Mr Sghendo’s right index finger injury separate from those attributable to his bicep injury and psychological condition:
(a) Objectively, Mr Sghendo has lost part of the tip of the index finger on his dominant right hand. He has effectively lost the use of his right index finger. The scar is painfully sensitive, moreso in the cold. The impairment is permanent. The specialist medical opinions of Dr Thomas and Mr Robbins each acknowledged these matters. The Panel made similar findings;
(b) There was no controversy on the evidence that Mr Sghendo experienced impairment consequences by reason of his work-related psychological injury. Those consequences included difficulties sleeping, loss of motivation and a reluctance to socialise. Mr Sghendo deposed to some sleeping difficulties due to his right finger injury, and a reluctance to socialise because of embarrassment about the appearance of his finger. These aspects of his evidence were not challenged during cross-examination;
(c) Mr Sghendo’s subsequent bicep injury may well have interrupted his pursuit of karate for a period; however, the VWA did not challenge Mr Sghendo’s evidence that he was no longer able to participate in karate because of the physical finger injury.
76As indicated earlier, I found Mr Sghendo a reliable witness and accept his account of the various impairment consequences of his right index finger injury.
77The absence of affidavits from Mr Sghendo’s partner and adult son do not lead me to doubt Mr Sghendo’s evidence as to his impairment consequences. His account is supported by the specialist evidence of Dr Thomas and Mr Robbins. I prefer their opinions to the impairment assessment of Dr Doig, orthopaedic surgeon, given their speciality.
78I bear in mind that the injury is to the index finger of Mr Sghendo’s dominant hand.
79I accept the testing outcomes were variable when the Panel tested Mr Sghendo’s grip strength, and therefore not reliable. The possible explanations for Mr Sghendo not exerting full effort could have been apprehension of pain or an intention to exaggerate his impairment. Considering the whole of the evidence, particularly the objective medical evidence, I find the more likely explanation is the former not the latter.
80I accept that Mr Sghendo’s index finger is painfully sensitive, particularly in the cold. He avoids shaking hands as that can be a painful activity.
81Mr Sghendo has not had any treatment for his injury since August 2021 and none is planned. He does not take any prescription medication for his pain. He takes Nurofen as needed.
82I find that Mr Sghendo’s finger injury has impacted upon intimate relations with his partner; however, the brief mention of this consequence in Mr Sghendo’s affidavit does not enable me to determine the extent of this impairment consequence, nor whether it is psychologically driven.
83I accept that Mr Sghendo has retained the capacity to work full time in his pre-injury employment, albeit with adaptations to his operation of the hand controls of the streetsweeper.
84Mr Sghendo has retained the capacity to drive and to ride his motorbikes. He rides his motorbikes less but has been able to adapt how he uses the hand controls and tries to “tuck” his index finger out the way.[17]
[17] T51
85Mr Sghendo can travel, socialise, go to the cinema, and enjoy his holiday house. Mr Sghendo can perform household chores and shopping but has adapted how he performs the necessary movements with his hands.
86Mr Sghendo’s sleep is disturbed by pain in his finger; however, I note that the extent of any sleep disturbance was not clear, and Senior Counsel for Mr Sghendo accepted there were also other reasons for his sleep disturbance.
87I accept Mr Sghendo’s account of the effects of his right finger injury upon his personal care. He struggles to wipe himself after toileting, has difficulty holding cutlery and chopping food, and has difficulty doing up buttons and performing other tasks that require fine movements. Again, he has adapted his movements to accommodate his finger injury, but those activities are impacted.
88I find that Mr Sghendo has difficulty with handyman tasks which require fine motor skills, repetitive use of his right hand, or the use of tools with a trigger operation.
89I accept Mr Sghendo is still able to work on his cars and motorbikes, but struggles to perform activities requiring fine motor skills, and needs assistance from his son to complete those. Mr Sghendo said, and I accept, that he has found his restrictions frustrating.
90I find that Mr Sghendo’s passion was karate. That activity is now lost to him due to the physical impairment of his right hand. That is a loss of very great significance to Mr Sghendo. I do not find the loss of that activity is ameliorated in any meaningful way for Mr Sghendo by spending time at his holiday house.
Are the permanent impairment consequences “serious”?
91I bear in mind what was said by the Court of Appeal in TTB SMS Pty Ltd v Reading:[18]
“The evaluation required of the trial judge, and this Court, involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder. Those other physical impairments may involve constant pain, significant medical treatment, and medication. They may involve sleep deprivation, or an inability or reduced ability to socialise or work.”
[18][2020] VSCA 203, at paragraph [31]
92The fact that Mr Sghendo can continue to work full time in his pre-injury role does not preclude a finding that he satisfies the statutory threshold. It is just one matter to consider.[19]
[19]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
93I must consider what has been lost and what has been retained.
94I find that Mr Sghendo has adapted the way he performs most activities by reason of his right index finger injury.
95Mr Sghendo participated in karate since childhood, competed at a high level, had two black belts in different forms of karate, and attended the Martial Arts Academy several nights a week prior to COVID-19 restrictions, including teaching two to three classes each evening. That activity is now lost to him by reason of his compensable injury.
96In making the value judgement required of me, and in considering the various impairment consequences collectively, the factor which tips the balance in favour of a finding that the impairment consequences are “at least very considerable” in this case is that Mr Sghendo is no longer able to participate in karate.
97I therefore find that the permanent impairment consequences of Mr Sghendo’s right hand injury are “more than significant or marked” and “at least very considerable” when compared with the range of possible impairments, including those which do not come before the Court.
Is the disfigurement of Mr Sghendo’s right index finger “serious”?
98I bear in mind the principles enunciated by the Court of Appeal in Transport Accident Commission v Garcia,[20] although I note that was a case under the Transport Accident Act 1986. For a disfigurement to meet the statutory threshold it must be considered in the context of a serious long-term impairment of a body function, severe long-term mental illness or loss of an unborn child.[21]
[20][2015] VSCA 225
[21]Ingram v Ingram [1996] 2 VR 435 at 438
99There is no issue that the disfigurement of Mr Sghendo’s right index finger is permanent.
100At the start of the hearing, I viewed Mr Sghendo’s right hand.
101The parties were agreed that the decision on this aspect of the claim was largely dependent on my impression of the disfigurement when I viewed it.
102The right index finger is shortened, with a small piece of beak-shaped nail. There is an area of scarring at the tip of the finger encompassing the pulp. The scarring is not red or significantly raised.
103I accept that the shortened finger, reduced nail, and scarring are visible, but the disfigurement is not particularly prominent nor extensive. The disfigurement could not be described as one which is readily observable from a distance. I am not satisfied that the permanent disfigurement is more than considerable when compared with other cases in the range of possible permanent disfigurements.
Conclusion
104Given my findings with respect to the claim pursuant to paragraph (a) of the definition of “serious injury”, Mr Sghendo is granted leave to bring a common law damages claim seeking pain and suffering damages.
105I will hear the parties on the issue of costs.
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