Sorrentino v Victorian WorkCover Authority

[2022] VCC 581

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-05025

ISABELLA CHENISE SORRENTINO	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE FRAATZ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2022
DATE OF JUDGMENT:	4 May 2022
CASE MAY BE CITED AS:	Sorrentino v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VCC 581

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – serious impairment of a body function – permanent disfigurement – pain and suffering

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s335

Cases Cited:Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702

Judgment:                  Leave granted to the plaintiff to commence proceedings for damages at common law for pain and suffering damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S A Smith QC with Mr B House	Henry Carus & Associates
For the Defendant	Ms C Spitaleri	Wisewould Mahony

HIS HONOUR:

1On 17 March 2018, the plaintiff, Isabella Sorrentino, injured her left hand during the course of her employment as a bartender at the Imperial Hotel in Melbourne.

2Whilst undertaking her normal duties polishing a wine glass, the stem of the glass suddenly snapped, causing the stem to puncture and lacerate the palmar aspect of her left little finger, resulting in damage to the sensory nerve on the ulnar side of that finger and a complete division of the flexor digitorum profundus tendon.  She was twenty-four years of age at the time of the injury.

3Immediately after the incident she could not flex the distal interphalangeal joint of her left little finger.

4In an attempt to return function to her non-dominant hand, Ms Sorrentino underwent surgery on 18 March 2018, 7 September 2018 and 14 May 2021, with a further procedure on 4 June 2021 to remove the pin which was in situ from the earlier surgery on 14 May 2021.  Each surgery involved significant pain and discomfort, time off work, rehabilitation and hand therapy.

5Ultimately, she has been left with permanent scarring and much reduced range of movement, poor function, constant pain, and a fixed deformity in the proximal and interphalangeal joints as a result of contracture in the tendon.

6Now a veterinary science student at Townsville University, Ms Sorrentino seeks leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) under paragraphs (a) and (b) of the relevant definition of “serious injury” for pain and suffering consequences, being for the permanent serious impairment or loss of a body function, or permanent serious disfigurement, respectively.

7For the reasons that follow, I grant her application for leave to commence proceedings for damages at common law for pain and suffering damages.

Legal principles  

8The relevant legal principles in applications of this type are well known and, save for one matter to which I shall return, not in dispute.

9Ms Sorrentino bears the onus of demonstrating that her impairment and/or disfigurement is permanent, and that the consequences are serious.

10She must establish that by reference to the consequences to her with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, respectively, are fairly described as being more than significant or marked, and as being at least very considerable, in accordance with the narrative test set out in s325(2)(b) and (c) of the Act.

11The consequences of injury for a particular worker begin with findings of fact.  Assessment whether those consequences, in terms of impairment or disfigurement, satisfy the narrative test is largely a question of impression and value judgment.

The issues

12The defendant, the Victorian WorkCover Authority, accepts that on 17 March 2018, Ms Sorrentino sustained an injury to her left little finger arising out of or in the course of her employment, and the parties agreed that there is no contest on the medical evidence in this application.  Accordingly, this is a “range” case.

13In the course of argument, Senior Counsel for Ms Sorrentino submitted that:

“… there’s no … prohibition on aggregating [section 335] (a) and (b), so that when Your Honour comes to consider the sub-paragraph (b) claim, Your Honour can have regard to this fixed flexion deformity of the finger not only in terms of its appearance, but also in terms of what the practical consequences of that disfigurement are.  So, for instance, when it gets caught on something or snagged on something, there is an increase in pain.”[1]

[1]Transcript 28, Lines 13-25

14Despite invitation to do so, Senior Counsel did not supplement his oral submissions with any authority on this point.

15Counsel for the defendant took the position that it was impermissible to aggregate impairment and disfigurement consequences in order to establish serious injury.

16In terms, s325(2)(b) of the Act provides that:

“the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be … .”

(emphasis added.)

17I need not express a final view about this submission given my findings below as to the extent of the impairment consequences to Ms Sorrentino.  It appears, however, that whilst the legislation proscribes that I must consider separately the consequences of disfigurement, relevantly for present purposes, I may consider the practical consequences of disfigurement in the context of impairment.

18In Dwyer v Calco Timbers Pty Ltd (No 2),[2] Ashley JA stated:

“What I have thus far said makes it unnecessary to decide whether the appellant also made good his contention that he suffered ‘serious injury’ as defined by s 134AB(37)(b) of the Act. I refrain from expressing a final conclusion about the matter, noting only that I have some doubt whether his disfigurement would satisfy the necessary threshold. The scarring, though extensive, is now very well healed and not very noticeable. The flexion deformity at the elbow, though constituting a disfigurement, in my view has a more significant impact in the context of impairment.”[3]

[2] [2008] VSCA 260

[3]        (Ibid) at paragraph [29]

19Further, Nettle JA commented:

“I see no reason to doubt that the appellant’s loss of upward and downward movement of his palm constituted disfigurement as much as it did impairment.”[4]

[4]        (Ibid) at paragraph [2]

The evidence

20As is usual in applications of this type, in addition to the plaintiff’s three affidavits sworn and affirmed in support of her application,[5] and an affidavit of the plaintiff’s friend and former partner, Benjamin White, affirmed 30 March 2022, the parties tendered various medical material, none of which was in dispute. I have read all the tendered material.

[5]Sworn 14 July 2020, 22 October 2020 and affirmed 31 March 2022

21In addition to the material referred to above, it was agreed that I should view ten short videos,[6] said to demonstrate the pre-injury function of Ms Sorrentino’s left hand in the context of her performing, training and practising various manoeuvres as a gymnast/cheerleader in the immediate period prior to her injury.  I was invited by Senior Counsel for the plaintiff, without objection, to view the videos of Ms Sorrentino engaged in cheerleading and gymnastics training to indicate the degree of physicality required to participate in those sports; and, in particular, to corroborate the complaint made by Ms Sorrentino that the fixed deformity in the finger and the restriction in the use of her left hand impairs her ability to engage in those activities, certainly at any sort of accomplished level, as she was able to demonstrate pre-injury.

[6]        These videos were tendered as part of the Plaintiff’s Court Book (“PCB”)

22I have reviewed those videos.  While it is difficult at times to identify, with precision, Ms Sorrentino, in some of the videos, I accept that they demonstrate an elite level of physical capacity, which she no longer has.  Appropriately, counsel for the defendant conceded in opening that “the defendant will not be suggesting that the plaintiff could do cheerleading now given her current left little finger injury”.[7]

[7]Transcript 5, Lines 21-24

23In court, I conducted a view of Ms Sorrentino’s left hand in a prone position, a fist, raised position and flat on the table.  I noted the presence of scarring, and confirmed the limited range of motion and other functional restrictions identified by her in her affidavits.

Background

24Ms Sorrentino completed high school in 2011 and, after a gap year, studied Animal Science at La Trobe University between 2013 to 2014.  She then worked as a Vet Nurse in Whittlesea from 2015 to 2016.

25In 2017, Ms Sorrentino commenced a degree in Biomedicine at Australian Catholic University which she completed in 2020.  In February 2021, Ms Sorrentino commenced a degree in Veterinary Science at James Cook University in Townsville.

26From the age of five, Ms Sorrentino has enjoyed doing gymnastics.  Whilst studying at La Trobe University, she became involved in the cheerleading team.  She was involved in teaching gymnastics and tumbling and conditioning for cheerleaders.  She then joined the cheerleading team when studying at Australian Catholic University.

27A talented cheerleader, prior to her injury she went with her university team to the Worlds Competition in Florida to compete.  In the lead up to this competition, she was training five times per week.  Later, she successfully tried out for a place in the All-Star Cheerleading team to represent Australia in the International Cheer Union World Cheerleading Championships in Florida in 2019.  Ms Sorrentino was widely known and respected within the cheerleading community.[8]

[8]        Affidavit of Benjamin White affirmed 30 March 2022, at paragraph [12]

The injury

28In or about December 2016, Ms Sorrentino commenced employment on a part-time basis with the Open Door Pub Co Pty Ltd as a bartender.  Her duties included bartending, hosting and running the pass at the Imperial Hotel in Melbourne.

29At about 1.00am on 17 March 2018, Ms Sorrentino was polishing a wine glass in the course of her usual duties when the stem of the glass snapped, causing it to puncture and lacerate the palmar aspect of her left little finger.

30Ms Sorrentino was taken to St Vincent’s Hospital Emergency, where the wound was cleaned and stitched.  The stitches were eventually removed, and an x-ray diagnosed a torn tendon.

31On 18 March 2018, Ms Sorrentino underwent a surgical procedure at St Vincent’s Public Hospital where the proximal half of the A1 pulley was divided and the tendon of the flexor digitorum was retrieved and repaired.  Her left little finger was placed in a plaster and subsequently a splint for about six weeks.  She continued to attend the St Vincent’s Outpatient Clinic for about three months following surgery.  Throughout this time, Ms Sorrentino managed her pain with Endone.

32In late March 2018, Ms Sorrentino commenced weekly hand therapy with occupational therapist, Mr Nick Antoniou, which was eventually reduced to fortnightly, and ceased in about July 2018.  Although the hand therapy did not improve the range of motion in her finger, Ms Sorrentino was able to return to work on light duties approximately twelve weeks after surgery.  She slowly progressed to her pre-injury duties, except for some heavy tasks.

33In May 2018, Ms Sorrentino had an ultrasound of her left hand and was advised that the scar tissue around her tendon was preventing her left little finger from reaching its pre-injury range of movement.  She was referred to Mr James Thomas, plastic surgeon, who recommended further surgery with a view to increasing the range of motion in Ms Sorrentino’s left little finger, which was poor.

34On 7 September 2018, Mr Thomas performed flexor tenolysis and neurolysis procedures on the finger.  Post-operatively, Ms Sorrentino returned to hand therapy with Mr Antoniou about three times per week for two to four weeks.  When she was not attending hand therapy, her finger was placed in a traction splint which forcibly extended her left little finger, which was uncomfortable and very painful.

35In November 2018, Ms Sorrentino returned to work on modified duties and managed to return to most of her pre-injury duties as a bar tender, save for heavier work.

36In or about March 2019, Ms Sorrentino was advised to cease using the splint because of her pain, discomfort and lack of improvement in her range of motion.

37In October 2020, Ms Sorrentino was referred by her general practitioner to Mr Nick Antoniou for five further sessions of hand therapy.  Mr Antoniou formed the view that hand therapy was not sufficient for Ms Sorrentino’s pain management and referred her back to her hand surgeon, Mr James Thomas, to ascertain what further treatment may be necessary.

38In November 2020, Ms Sorrentino returned to consult Mr Thomas, who diagnosed the plaintiff with bowstringing of the flexor tendons in her left hand.  An MRI scan of her left hand confirmed the diagnosis, and Mr Thomas recommended further surgery by way of a pulley reconstruction and joint release.

39Ms Sorrentino sought a referral in Brisbane, and consulted Dr Gregory Couzens, hand surgeon, at the Brisbane Private Hospital, who recommended a third surgical procedure on her left hand.

40On 14 May 2021, Dr Couzens performed a joint excision of the volar plate, dividing the flexor digitorum superficialis tendon and using the slips to reconstruct the A2 and A4 pulleys, as well as a tenolysis and insertion of a Kirschner (K) wire through the joints of the left little finger.  This procedure was followed by hand therapy at Helping Hands, Townsville.

41In June 2021, Ms Sorrentino had a further procedure to remove the K-wire from her left hand, performed by Dr James Price, orthopaedic surgeon.

42Ms Sorrentino has since continued with hand therapy in Townsville, and in Melbourne when she has returned over the university breaks.

43Dr Couzens has advised her that whilst she could consider further tenolysis surgery, notwithstanding further surgery, Ms Sorrentino is likely to have ongoing issues with the flexor digitorum profundus tendon adhesions.  I accept Ms Sorrentino’s evidence that she is reluctant to undergo any further procedure given the lack of improvement she has had with previous surgeries.  Nor will she entertain the alternative option of amputation of her left little finger.

44I am satisfied that her condition is permanent.

Consequences of injury

45I accept Ms Sorrentino’s evidence as to her levels of pain, loss of function and impairment, and the consequences to her of her disfigurement.  She presented as an intelligent woman who answered questions directly in a straightforward manner.  She made appropriate concessions and did not seek to dramatize, embellish or exaggerate either her condition or the impact of the impairment or disfigurement upon her.

46Various doctors also made comments to the same effect when assessing Ms Sorrentino on behalf of the plaintiff and the defendant in a medico-legal context;[9] and, to her credit, she was noted to be minimising her complaints at the time of her medico-legal assessment by hand, plastic and reconstructive surgeon, Mr John Buntine.[10]

[9]See reports of Dr Murray Stapleton dated 8 March 2022, and Dr E John Anstee dated 28 February 2022

[10]See report dated 30 June 2020 at PCB 122-123

47Ms Sorrentino suffers constant mild dull pain and discomfort in her left little finger as well as pain on the medial side of her left little finger.  This pain is exacerbated with activity, and with cold weather.  She wears a glove on her left hand to address this consequence.

48Her left little finger and surgical scar are more sensitive than the rest of her hand and she feels pain with the application of pressure.

49Because her left little finger is stuck in an extended position, and the distal joint of the finger is fixed at a 45‑degree angle, together with reduced sensation, she is constantly hitting her finger.  Even a slight knock results in significant pain.  Her left little finger is prone to catch on things or be jarred, which causes an increase in her pain.  This occurs daily.  She will often strap her little finger to her ring finger to protect it.  The pain in her finger is severe, possibly 30 or 40 per cent of the time.

50Over time, and despite surgical intervention, the pain in her little finger has increased, even at rest, and she uses heat packs, massages and stretches to help manage her pain.

51She takes Nurofen to manage her pain in varying doses, depending on whether she is doing something active.  She avoids using medication when she is studying.

52Her pain sometimes interferes with her sleep, which leaves her feeling fatigued.

53She has reduced grip strength and dexterity in her left hand, which affects her domestic and social activities.  The position of her left little finger and its inflexibility creates difficulty for her when she is typing on a keyboard, using her mobile phone, playing the piano or performing any tasks which require fine dexterity with her left hand.

54The lack of function is also productive of pain and suffering in the sense of elevated pain, when her little finger catches and snags in the course of her social and domestic activities, including intimacy.

55She has difficulty undertaking heavier day-to-day household tasks such as mopping, cleaning the bathroom and doing the dishes, as her pain increases when performing these tasks.

56Ms Sorrentino also has difficulty with personal care, including washing using her left hand and personal hygiene in general, brushing her hair and dressing.  In cross-examination, she gave evidence that she has difficulty putting on her shoes and if she uses her left hand, it causes a great deal of pain.[11]

[11]        Transcript 15, Lines 6-9

57Further, it is Ms Sorrentino’s long-demonstrated desire to become a veterinary surgeon, and to this end she intends to practise as a generalist in a small animal surgery context.  This would involve her performing surgery three days a week, and consultations a further two days per week.

58Based on her experience as a student doing dissections, performing surgical procedures causes a great deal of pain in her left hand, through the finger, the palm, and her left wrist, which is significantly weakened since the injury.  She is forced to stop, massage, stretch and give herself a break.

59Having regard to the need to hold instruments and animals for extended periods of time when conducting surgery, she will no doubt experience elevated levels of pain on a daily basis in order to practise as a veterinary surgeon.  It will also affect her on the consultation days, while restraining animals in the context of examinations.  It is likely to restrict her ability to conduct her practice as a surgeon, at least to some extent.

60As a consequence of her injury, she was unable to compete as a member of the Australian team at the World Cheerleading Championships in 2019, which was devastating for her.[12]  She has since had to give up cheerleading altogether.  Coming to the realisation that she will never be able to return to gymnastics, even at a beginner level, has also been very difficult for her.[13]

[12]        Affidavit of the plaintiff affirmed 14 July 2020, at paragraph [31]

[13]        Affidavit of the plaintiff affirmed 31 March 2022, at paragraph [28]

61I regard this as a very significant consequence.  She has been deprived of the opportunity to compete at the highest level, in the prime of her physical condition, in the discipline she loves, in the very short window of time available to elite athletes.  Moreover, she has been deprived of the opportunity to remain involved in the sport – whether that be as participant or coach.

62The evidence of Mr White, her friend and former partner, was telling.  In addition to corroborating many of the consequences of her injury, his affidavit includes the following observation:

“Isabella had great physical literacy and could do amazing things with her body.  When we were hanging out together, she would often do things such as handstands, flips and cartwheels on cue.  This completely stopped after the injury.”[14]

[14]Affidavit of Benjamin White affirmed 30 March 2022, at paragraph [11]

63In his medico-legal report dated 28 February 2022, plastic and reconstructive surgeon, Dr E John Anstee, noted that the initial injury was a complete division of the flexor digitorum profundus tendon to the left little finger, and that prognosis is poor.  He records his observations of scarring on the volar aspect of the left little finger which is 57 millimetres long and up to 3 millimetres wide.  In his opinion:

·        “The end result has been unsatisfactory with a much reduced range of movement.”

·        “I would think that few activities in gymnastics could be attempted with such reduced movement in the little finger.  I doubt that that would be safe even at a social level.”

·        “In fine I believe that in her chosen profession of veterinary surgery she will be significantly hampered.”

·        “Flexor digitorum profundus injury to the little finger is an injury which frequently results in poor function.  That is certainly the case here.”

64On the evidence as a whole, I am satisfied that:

(a)   Ms Sorrentino has constant mild pain in her left hand, extending from the tip of her left little finger, through the palm of her hand and into her left arm;

(b)   this pain increases to a level of eight out of ten – ten being the maximum pain she could imagine – upon use or knocking, jarring or catching of her finger, which occurs daily;

(c)   pain sometimes interferes with her sleep, leaving her fatigued and sapped of energy;

(d)   she has had to cease her gymnastics and cheerleading activity, including coaching, because of the pain and limits of function in her hand, an activity she wished to do at least into her thirties and, if possible, into her forties;

(e)   whilst Ms Sorrentino experiences significant pain, she continues to clean, move boxes and restock at her work as a laboratory assistant; shop, brush her hair, and engage in fitness activities;

(f)    she has had to modify the manner in which she conducts various procedures in her work as a laboratory assistant which requires fine dexterity, and grips the handlebars of an exercise bike in “spin classes”.  She tries to avoid activity which exacerbates her pain, but this is not always possible;

(g)   she endures significant pain in conducting the practical elements of her current study to be a veterinary surgeon, including in the conduct of dissections, handling small and large animals, getting dressed for surgical procedures (including fitting surgical gloves) and whenever she knocks it in the course of examining animals;

(h)   she is required to use a glove in cold weather to prevent pain, which is local to her scar;

(i)    she takes regular medication, Nurofen, for her pain;

(j)    she has had three surgeries as set out above, involving significant and discrete periods of pain, time off work, rehabilitation and hand therapy; and

(k)   she has been left with a marked loss of function in her hand, leaving her with amputation of her left little finger as the only reasonable surgical alternative, which she was clear in her evidence she would not entertain now or into the future.

Pain and suffering

65I am satisfied that there is an impairment of the left hand, and such impairment is “permanent” within the meaning of the Act.

66I am also satisfied that there is disfigurement to the plaintiff’s left hand, manifested by contracture of the little finger involving the inability to move or straighten the proximal interphalangeal joint, or make a fist, and noticeable scarring at the site of the injury and subsequent surgeries.  Whether it be related to impairment or disfigurement or both, the scarring is associated with sensory disturbance by way of ongoing pain and tenderness.

67The critical issue is whether or not the impairment and/or disfigurement is “serious” to Ms Sorrentino within the meaning of the narrative test, assessed by reference to the consequences of the injury, rather than the injury itself.

68In Ellis Management Services Pty Ltd v Taylor,[15] the Court of Appeal stated:

“52.   ... After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.

…

57.The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.

58.Nevertheless the relevant assessment must be made objectively by the court.  It is the judge’s opinion as to the seriousness of the impairment or loss which is determinative, not the opinion of the applicant or medical practitioners.

59.The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree.  Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors.  Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range ... .”[16]

(citations omitted)

[15] [2013] VSCA 326

[16]Citations omitted

69I am satisfied that the pain and suffering consequences of the impairment of her left hand are “at least very considerable”, having regard to the consequences to her set out above at paragraphs [47] to [63].

70Ms Sorrentino’s evidence included that her surgery lecturer has stated to her “because the skin on my left palm/hand is already sensitive that it might be too much pain to work as a vet and … that it might be better for me to quit now”.[17] Based on the evidence before me, I am unable to determine whether she will, in the future, be able to practise as a veterinary surgeon at all.  In the circumstances, I place little weight on this evidence.  By her own account, Ms Sorrentino is determined to be a surgeon, but it remains a possibility that her ambitions may be denied.

[17]        See affidavit of the plaintiff affirmed 31 March 2022, at paragraph [39]

71The evidence does, however, tend to emphasise the consequences of her injury on her ability to pursue her chosen career path, which is a relevant factor.

72Maxwell P, in Haden Engineering Pty Ltd v McKinnon,[18] stated:

“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment.  The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury.  It is simply one of the matters to be taken into account.  What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.”[19]

[18](2010) 31 VR 1

[19]        (Ibid) at paragraph [15]

73I am satisfied that the consequences of Ms Sorrentino’s injury are likely to be more than marked in the context of her chosen profession, by reference to her pain and restrictions in performing surgery.

74Being satisfied of the level of current impairment and the pain and suffering consequences of that loss of function, I also take into account that Ms Sorrentino is twenty-eight years of age and will bear the consequences of her work injury for her professional life.  One could reasonably expect those consequences might endure for thirty to forty years once she completes her study to be a veterinarian surgeon; and for the remainder of her life in a domestic and social context.

75I find that, by reason of her age, her youth has increased the seriousness of Ms Sorrentino’s injury, as she will bear that injury, and its consequences, for the rest of her life.[20]

[20]See Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181

76The combination of multiple surgical interventions, ongoing pain, interference with work, interference with domestic and recreational activity, and the requirement for ongoing conservative treatment, and her age, is such that the pain and suffering consequences to Ms Sorrentino of her injury are “at least very considerable”.

77I was invited to find that although Ms Sorrentino’s pain was constant, and severe 30 to 40 per cent of the time, I should, in accordance with the principles stated in Haden Engineering Pty Ltd v McKinnon[21] and TTB SMS Pty Ltd v Reading,[22] reject her application upon consideration of what she had lost in terms of what she had retained.[23]  While the significance of what Ms Sorrentino has lost, in terms of the seriousness of consequence, might be informed by what is retained in the pursuit of her work as a laboratory assistant, studies, domestic and social activities, I must also consider the extent to which she is a stoic individual.[24]  I consider Ms Sorrentino as stoic, putting up with the pain and getting on with her life as best she can.  That should not be held against her.[25]

[21]Supra

[22][2020] VSCA 203

[23]See also Dwyer v Calco Timbers Pty Ltd (supra) per Ashley J

[24]See for example Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [83]

[25]        Dwyer v Calco Timbers Pty Ltd (No 2) (supra) per Nettle JA at paragraph [3]

78To her credit, it appeared to me that Ms Sorrentino is not prepared to allow her injury to dictate a wholehearted reduction in her enjoyment of life, and pursuit of her professional ambitions.  I do not view the consequence to her as any less serious merely because she has managed to pursue her career goals.  As Senior Counsel for the plaintiff put it, the fact that the plaintiff’s pain is only mild 60 to 70 per cent of the time needs to be read in the context of non-use of the hand allowing for that mild pain.  Any normal activity in which this young woman engages prompts pain of a very significant nature.  I accept her evidence that this includes snagging her finger during the most mundane of activities, including walking.

79So, while Ms Sorrentino has retained the ability to do many things, it has to be judged in the context of that for each of those activities – getting dressed, brushing her hair, cleaning her home, playing the piano, typing or studying, exercising, doing any of her practical veterinary coursework – she has only retained the ability to do them with regular use of analgesic medication, often in a restricted or modified fashion, and confronting the proposition that her pain might push out to the eight out of ten mark.

Disfigurement

80As a consequence of my finding that Ms Sorrentino’s loss of function under paragraph (a) is serious to her, there is no need for me to determine the paragraph (b) claim.  For completeness, however, I make the following findings.

81I accept that the scarring and disfigurement is permanent, and in an area which, provided her palm is raised, cannot be concealed unless it is covered by her glove, and therefore may be apparent to persons in her company.  It has occurred to a young person who takes obvious pride in her appearance, and I accept her evidence that it creates embarrassment and self-consciousness on her part, to the extent that she hides her hand on occasion.

82Whilst I accept the left-hand scarring and disfigurement have consequences to her which are substantial, I do not consider them to be “at least very considerable”[26] when judged by comparison with other cases in the range of possible disfigurement.  The scarring, although prominent, is relatively small and confined to the underside of her little finger and would not be obvious from a distance.  And whilst the disfigurement is obvious upon close inspection, I must be satisfied that it is, when judged by comparison with other cases, in the range of possible disfigurements, fairly described as being more than significant or marked, and as being at least very considerable.

[26]See Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702, at paragraph [13], per Callaway JA

83In reaching my decision, I have had regard to a number of authorities in which serious injury applications involving scarring and disfigurement have been considered, including Ingram v Ingram & Anor,[27] Baker v Transport Accident Commission & D’Alberto[28] and Transport Accident Commission v Garcia,[29] as well as more recent County Court cases.

[27][1996] 2 VR 435

[28][1997] 1 VR 662

[29][2015] VSCA 225

84I am not persuaded that the consequences of the disfigurement, having regard to the nature and breadth of those consequences, constitute serious disfigurement and scarring within the legislative requirements.

Conclusion

85For the reasons set out above, I am satisfied that:

(a)   Ms Sorrentino’s impairment is permanent; and

(b)   she has a serious injury by reference to her pain and suffering.

86Accordingly, I grant her leave under s335 of the Act to bring common law proceedings to recover non-pecuniary loss damages for injuries she sustained on 17 March 2018 arising out of or in the course of her employment with Open Door Pub Co Pty Ltd.

87I will hear the parties on the question of costs.

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