Williams v Giosante Pty Ltd
[2023] VCC 440
•27 March 2023
| IN THE COUNTY COURT OF VICTORIA AT MILDURA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-21-00473
| NATHAN WILLIAMS | Plaintiff |
| v | |
| GIOSANTE PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 14 March 2023 | |
DATE OF JUDGMENT: | 27 March 2023 | |
CASE MAY BE CITED AS: | Williams v Giosante Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 440 | |
REASONS FOR JUDGMENT
---
Subject:Workplace injury
Catchwords: Injury to hand and finger - partial amputation - serious injury – disfigurement.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2014; Accident Compensation Act 1985; Transport Accident Act 1986;
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; Bustos v VWA [2021] VCC 1531; Dobbin v VWA [2022] VCC 2173; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Garcia v TAC [2015] VCC 140; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Ingram v Ingram [1996] 2 VR 435; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; TAC vGarcia [2015] VSCA 225; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Application refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Anderson | Ryan Legal |
| For the Defendant | Mr P Scanlon KC and Mr S Martin | Russell Kennedy |
HIS HONOUR:
1This application seeks the grant of a serious injury certificate pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCA”) to enable the commencement of common law proceedings by the plaintiff for damages for pain and suffering. The plaintiff was represented by Mr Anderson of counsel. The defendant was represented by Mr Scanlon KC together with Mr Martin of junior counsel.
2There is no argument but that the plaintiff suffered a traumatic injury to the index finger of his left hand at work when on 7 March 2018 a door to a heavy cool room slammed shut on it. The end section of the left index finger was pulled off. After being taken to the Mildura Base Hospital and surgery the next day, the end part of his finger could not be re-attached.
3The scope of the application is comparatively narrow. This is essentially a type of case sometimes referred to compendiously, and yet sometimes unhelpfully, as a “range” case both as it applies to paragraph (a) and to paragraph (b) of the definition of serious injury under the WIRCA.
Plaintiff’s evidence
4The plaintiff’s evidence in chief consisted of his three affidavits dated 5 July 2022,[1] 2 February 2023[2] and 14 March 2023.[3] In addition, the plaintiff relied on medical evidence.
[1] Exhibit P1, Plaintiff’s Court Book (‘PCB’) 8-13.
[2] Exhibit P1, PCB 14-18.
[3] Exhibit P1, PCB 144-145.
Plaintiff’s medical evidence
5The plaintiff tendered the following material:
· Three radiology reports of x-rays of the left finger dated 15 June 2018, 10 October 2018 and 16 June 2021;[4]
· The Mildura Base Hospital notes dated 8 March 2018, 12 March 2018, 30 May 2018 and 10 October 2018;[5]
· Six reports of Dr Ponnaren Pak dated 15 June 2018,[6] two reports dated 29 June 2018,[7] 4 July 2018),[8] 13 August 2018,[9] and 10 Sept 2018[10];
· Report of Dr Jill Tomlinson dated 26 February 2019;[11]
· Sixteen reports of Mr Robert Din dated 28 April 2021,[12] 28 April 2021,[13] 5 May 2021,[14] 15 May 2021,[15] 16 June 2021,[16] 9 July 2021,[17] 22 July 2021,[18] 29 August 2021,[19] 20 October 2021,[20] 23 October 2021,[21] 29 October 2021,[22] 4 November 2021,[23] two reports of 5 November 2021,[24] 15 November 2021[25] and 13 January 2022.[26]
· Three reports of GP Dr Khalid El-Sheikh dated 1 May 2019,[27] 14 April 2020[28] and 16 June 2020;[29]
· Two reports of Dr Murray Stapleton dated 16 December 2022,[30] 1 March 2023[31] and letter of instruction dated 27 February 2023;[32]
· Three reports of Dr David Weissman dated 25 May 2020,[33] 2 February 2021[34] and 14 December 2022;[35] and
· Two reports of Dr David Elder dated 24 July 2020[36] and 20 May 2022.[37]
[4] Exhibit P2, PCB 19-21.
[5] Exhibit P3, PCB 22-28.
[6] Exhibit P4, PCB 29.
[7] Exhibit P4, PCB 30-31.
[8] Exhibit P4, PCB 32.
[9] Exhibit P4, PCB 33.
[10] Exhibit P4, PCB 34.
[11] Exhibit P5, PCB 35-36.
[12] Exhibit P6, PCB 37.
[13] Exhibit P6, PCB 38.
[14] Exhibit P6, PCB 39.
[15] Exhibit P6, PCB 40.
[16] Exhibit P6, PCB 41.
[17] Exhibit P6, PCB 42.
[18] Exhibit P6, PCB 43.
[19] Exhibit P6, PCB 44.
[20] Exhibit P6, PCB 45-46.
[21] Exhibit P6, PCB 47.
[22] Exhibit P6, PCB 48-50.
[23] Exhibit P6, PCB 51.
[24] Exhibit P6, PCB 52-53.
[25] Exhibit P6, PCB 54.
[26] Exhibit P6, PCB 55.
[27] Exhibit P7, PCB 56-57.
[28] Exhibit P7, PCB 58-59.
[29] Exhibit P7, PCB 60-61.
[30] Exhibit P8, PCB 62-72.
[31] Exhibit P8, PCB 73-74.
[32] Exhibit P8, PCB 146-147.
[33] Exhibit P9, PCB 75-89.
[34] Exhibit P9, PCB 90-105.
[35] Exhibit P9, PCB 106-123
[36] Exhibit P10, PCB 124-131.
[37] Exhibit P10, PCB 132-143.
Defendant’s medical evidence
6The defendant tendered the following material:
· Report of Professor Richard Bittar dated 22 November 2019.[38]
[38] Exhibit D1, Defendant’s Court Book (‘DCB’) 221-225.
7I have read and considered all of the material relied upon by the parties. I have also had regard to the oral evidence of the plaintiff and the legal submissions and addresses of counsel. Insofar as the medical material is concerned, I intend to refer only to such parts of the records or reports referred to by the parties as is necessary to assist me in the resolution of the issues. This is particularly relevant as it pertains to the plaintiff’s medical evidence, not all of which I have needed to refer to, in order to explain these reasons.
Plaintiff’s evidence
8The plaintiff is now aged 34. He has a partner and step daughter.
9After discharge from hospital following the finger accident in March 2018 the plaintiff was reviewed during the year. He had ongoing problems with pain, swelling and colour changes in the finger. He was reviewed with a surgeon at the Mildura Base Hospital in May 2018 and again in October 2018. He also had scans of his finger. These attendances are recorded in the hospital records exhibited by the plaintiff.
The back injury accident
10Not long before the finger injury in March 2018 the plaintiff sustained a separate and serious back injury in an accident on 6 October 2017. However, he deposed that he does not have any ongoing treatment for his back injury and that despite continuing to suffer from back pain, it is manageable, and does not cause him to suffer any restrictions in his employment. Although this is the current state of affairs the plaintiff described, it was not aways the case, because he deposed that by February 2019, he was dealing with the back injury from the truck accident along with his finger injury. He explained that he had become very anxious about his situation. He was receiving physiotherapy treatment for his back and hand therapy treatment for his finger. He was also referred to a psychologist, and in March 2019, he commenced treatment with Dr Fiona Parkinson.
11The plaintiff stopped working for the defendant company during 2019. In late 2019 he commenced helping out a friend with some painting and decorating work. He also did some lawn mowing work. There was no elaboration in the course of the evidence of the nature of the work these jobs entailed and the extent, if at all, that the consequences of the finger injury impacted the plaintiff in the performance of the same. It was not until April-May 2020 that he found more regular employment when he commenced working as a tip truck driver for Curlwaa Haulage and Plant Hire. In August 2020, he began working as a truck driver for Payless Skips. In about November 2020 he started working as a truck driver and plant operator for KW Earthmoving.
12In March 2021 the plaintiff was assessed by Mr Robert Din, orthopaedic surgeon, who recommended that he undergo further surgery to his finger which was performed on 28 April 2021 at the Mildura Private Hospital by way of a “left index finger partial amputation wound debridement and skin closure.”[39] During 2021, the plaintiff had further reviews with Mr Din. He had another x-ray of his left index finger on 16 June 2021. He had hand therapy treatment at Lime Therapy. Another surgery to the finger was performed by Mr Din on 5 November 2021 by way of a left index finger revision terminalisation, and further reviews with Mr Din occurred in November and 2021, December 2021 and in January 2022 at which time Mr Din tracked the plaintiff’s having healed well post operatively but with the tip of the finger remaining sensitive to palpation.
[39] Exhibit P6, PCB 48.
Consequences of impairment
13The plaintiff said that he continues to suffer from ongoing problems with his left index finger. He suffers from pain in the finger on a daily basis. The pain is located from the middle joint upwards. The finger is very sensitive. The pain can vary in intensity depending upon changes in the weather. Cold weather is bad for pain. He also experiences feelings of numbness and tingling in the finger. He takes Panadol as required but on average about every two days.[40] He experiences sharp and intense pain if he applies too much pressure or bangs the end of the tip of the stump of the finger accidentally. He said he has lost strength and movement in the finger with the result that he has been forced to change the way that he grips items. He relies more on his right hand since the injury.
[40] Exhibit P1, PCB 15.
14He said he struggles with basic activities such as tying up shoelaces and cooking. He has difficulty using a fork and doing up the buttons on a shirt. As to the use of a fork, he demonstrated in the Courtroom how he manages to do so with the use of a plastic fork, which is by the use of his thumb and middle finger to steady the fork and with his affected finger maintained in a raised position. He has to be mindful in how he pick things up. A small bulldog clip was placed before the plaintiff in the witness box as representative of small items such as nuts and screws. Obviously enough, the picking up of similarly sized items is a more complicated and careful exercise for the plaintiff than would apply to a person without the injury he carries. As a consequence, he said that he is now more limited with his ability to be a handyman around the home and garden.
15The plaintiff said that he hold things more in the palm area of his hand. At times he will drop items from his left hand.
16Before suffering his finger injury the plaintiff says he enjoyed fishing. He deposed that he can still fish, but he does so less often and the pursuit is now less enjoyable because of his finger injury and, as well, generally, he has lost interest in it.
17The plaintiff says he is restricted in how he plays with his stepdaughter, which is very frustrating for him.
18Before his finger injury the plaintiff explained that he enjoyed playing cricket and football with mates but now does not do so. Prior to his finger injury the plaintiff deposed that he enjoyed the game of eight ball. He had played in competitions for the Sunraysia eight ball team. Since his finger injury although he has played eight ball he explained that it is too difficult because he jars his finger in the manner he holds the cue and so he no longer competes in competitions.
19The plaintiff took up darts.
20The plaintiff says he has restricted movement in his left index finger and he suffers from a pulling and stretching sensation when he tries to move the finger inwards towards his palm which the plaintiff demonstrated in the witness box.
21In his second affidavit, the plaintiff deposed that he continues to suffer from the impairments to his recreational, sporting and social life.
22He deposed that he is self-conscious about his finger. He says its appearance is upsetting. He says he does not feel normal. He is aware that people notice his finger. People talk about it, which he does not like because it dredges up memories of the accident. He says that he finds its appearance embarrassing and uncomfortable but he cannot avoid constantly looking at it and there is no hiding from it.
23In about April 2022, the plaintiff commenced working as a yardman and delivery driver for the Pickering Transport Group in Buronga. His work involved the loading and driving of trucks together with various yard duties with forklifts and trailers. Due to his finger injury he struggled with various aspects of the work. He explained that he has less strength and grip in his left hand and he was forced to work more slowly and change the way that he gripped and lifted at work. He experienced pain whenever his finger was pulled and experienced a sharp pain if he knocked or banged his finger on something. He asked Pickering if he could do more driving work and they agreed with the result that in about November 2022 he commenced driving trucks on a full-time basis. This work was better suited to his finger injury because there was less occasion for straining on it and he managed to avoid banging and knocking it as much through the course of the day. In January 2023, the plaintiff changed employment from Pickering to KW Earthmoving, with whom he is now engaged exclusively in driving trucks on a full-time basis.
24The plaintiff’s third affidavit sought to clarify paragraph 3 of his second affidavit in which he had deposed that the pain he experienced was from the middle joint upwards which he said he had intended to mean that area known as the “proximal” joint of his finger.
25The plaintiff deposed that he continues to suffer from pain on a daily basis. The amount of pain varies depending upon the extent of use of his finger as well as the temperature. During a normal day he said that he feels pain in his finger more often than not. He experiences a sharp intense pain with increased pressure on banging of the stump, however, his finger can at times be painful even when he is not using it. He said that during the colder months of the year his finger will often ache with pain all day long. Feelings of numbness and tingling in his finger comes and goes, but he experiences these feelings on most days, regardless of what he is doing or how he is using his finger.
Medical reporting
Mr Pak
26Mr Pak, orthopaedic surgeon, and who initially treated the plaintiff, reported to the plaintiff’s GP on 10 September 2018 that the plaintiff’s “finger is doing well with very little keratin overgrowth this time. He is back at work now on modified duties. I will see him again in late November and if all is well this will be the last review.”[41]
[41] Exhibit P4, PCB 34.
Dr Tomlinson
27Dr Tomlinson is a Plastic, Reconstructive and Hand Surgeon who provided a report on referral dated 26 February 2019. She wrote that the pulp of the plaintiff’s finger was amputated in the injury and she reported that the plaintiff:
“has subsequently had a shortening procedure with the dorsal skin used to cover the volar aspect of the fingertip. He had a further operation in June 2018 to refashion the tip as there was a sensitive area that has persisted after this second surgery and seems to relate to persistent growth of the nail plate. I have discussed the anatomy of the fingertip at length with Nathan today, explaining the surgery that is required to ablate the germinal matrix, and the sometimes incompletely successful nature of this surgery.”[42]
[42] Exhibit P5, PCB 35.
Murray Stapleton
28Murray Stapleton is a Plastic and Hand Surgeon who provided a medico legal report to the plaintiff’s solicitors dated 16 December 2022.[43] He reported on the plaintiff’s current status describing the left index finger as painful in cold weather. He said the plaintiff:
“has a very tender amputation stump such that he avoids any contact with a surface using the amputation stump. His proximal interphalangeal joint is present, but there is only a flicker of flexion that he can contribute to his left hand function. The power of his grip is diminished. He has lost normal sensation to the extent of 3 cm down from the tip of his amputated left fingertip. The sensation that is altered is that he is aware of something touching the finger, but he has no idea of what it is; whether it be sharp or blunt, hot or cold. His condition is stabilised. The scarring has settled well and the scars themselves give him “no problems”.”[44]
[43] Exhibit P8, PCB 62-72.
[44] Exhibit P8, PCB 63.
29As to the plaintiff’s social history he reported that, “Nathan lives in a de facto arrangement. He has a stepdaughter. His hobbies include fishing and camping. Fishing is a problem for him when he has to hold a fishing rod with his left hand. There is no ability for him to play a ball game in case a ball strikes the tip of his left index finger.”[45] On examination he reported that “the proximal interphalangeal joint flexes from 0-10°, the metacarpophalangeal joint flexes and extends normally.”[46]
[45] Exhibit P8, PCB 64.
[46] Exhibit P8, PCB 64.
30When asked whether as a result of the injuries the plaintiff sustained he had been incapacitated for work, he said that the plaintiff “has been incapacitated for work insofar as his left hand will never be as efficient as was formerly the case and, in general, your client said that this injury has “changed my life forever”. He has, therefore, been partially incapacitated for work and that incapacity should be regarded as permanent.”[47]
[47] Exhibit P8, PCB 65.
31When asked if the plaintiff was at the date of examination fit to resume work and in what capacity, he reported that the plaintiff “has a job that satisfies him now driving B-double trucks without any loading or unloading responsibilities involved.”[48]
[48] Exhibit P8, PCB 65.
GP reports
32There is nothing in the records form the plaintiff’s treating doctor that assists in the identification of issues in despite and are relevant.
Dr Weissman
33Dr Weissman is a psychiatrist to whom the plaintiff was sent for medico legal examination by his solicitors and who saw the plaintiff on three occasions and furnished a report following on from each consultation. Dr Weissman reported on the plaintiff’s mental state as affected by both the truck injury and the finger injury.
34In his first report as it related to the finger injury, Dr Weissman reported, that the plaintiff is right hand dominant and that his left index finger still “hurts like hell, 24/7”[49] especially during cold weather. He said that the fingernail is still growing out of the tip of the amputated left index finger which hurts him.
[49] Exhibit P9, PCB 80.
35As regards his leisure activities and hobbies, the plaintiff told Dr Weissman that he does some fishing and, in fact, during the Skype consultation the plaintiff was fishing. He told Dr Weissman that he spends time with his daughter and his family and “I poke around at home.”[50] He said that prior to the COVID-19 restrictions he socialised and he played eight ball with friends on Tuesday nights. In terms of his capacity to care for his personal needs, he is able to shower and dress himself every day. He is able to cook, clean and launder. He is able to garden and grocery shop. He was doing some walking but had lost motivation. He said that he drives a car “a fair bit.”[51]
[50] Exhibit P9, PCB 81.
[51] Exhibit P9, PCB 81.
36The plaintiff told Dr Weissman that although he thinks about the left index finger accident he does not experience bad dreams about the amputation. He does not have any clear phantom pain in his absent fingertip.
37In his next report, Dr Weissman said that at the further consultation with the plaintiff he read back to him the history he had taken at the initial examination and that he had recounted in his first report and which the plaintiff accepted was accurate.
38In respect of the physical symptoms the plaintiff said he was suffering from and that were attributable to the lower back injury, the plaintiff said that he continues to experience “constant lower back pain, sometimes right hip pain and sometimes right knee pain, ‘neck pain, not really, just here and there, it gets a bit tight’.”[52]
[52] Exhibit P9, PCB 113.
39Regarding physical symptoms that the plaintiff said he was suffering from and that were related to the left finger injury, he said that it still “hurts like hell”[53] and he was awaiting further surgery on it. He said that the fingernail still grows out of the tip of the amputated left index finger and this hurts him. He said he takes “just Panadol”[54] but no other medication. He explained that he did not want to risk his current job by taking strong analgesic medication, because he is prohibited from driving heavy vehicles on strong medication.
[53] Exhibit P9, PCB 96.
[54] Exhibit P9, PCB 97.
40As to his leisure activities and hobbies the plaintiff said, “I just go out on the boat, river cruise.”[55] He said he had not been fishing “for ages”. He has barbecues. He plays darts with one particular mate. However, he has lost interest in playing eight ball. He spends time with his family.
[55] Exhibit P9, PCB 97.
41As far as his capacity to perform personal activities of daily living he said, “I can do all but I get to a certain point and if I go over a certain point, I'm like a 90 year old”[56] which description Dr Weissman said that the plaintiff related as due to his lower back pain and neck pain. He gave as an example, that recently he had helped his mother to cut out small trees and roses with a chainsaw, following which he was “in agony”.[57] He said he was able to shower and dress himself independently every day and to cook, clean and launder. He was able to do garden and grocery shop. He said he had, however, lost interest in walking and exercising. He had been walking at the gym but has lost “all interest” and that his “motivation is just gone”.[58] He still is able to drive a car.
[56] Exhibit P9, PCB 97.
[57] Exhibit P9, PCB 97.
[58] Exhibit P9, PCB 97.
42When asked by Dr Weissman how often he thinks about the finger injury, he said “Not as much. Mainly when I'm doing things such as tying my shoelaces up, or hanging clothing up, I recall I haven't got it (the tip of his left index finger) anymore ... or when people ask me what happened”.[59] He explained that such things trigger thoughts and reminders of the incident for him. The plaintiff said that he has some phantom pain in the missing tip of his left index finger, however, based upon his responses, Dr Weissman thought that he was experiencing pain from the fingernail that was still growing from the amputation tip rather than true phantom pain.
[59] Exhibit P9, PCB 98.
43The plaintiff said he “sometimes, occasionally”[60] still experiences bad dreams about the finger injury.
[60] Exhibit P9, PCB 98.
44In his third report dated 14 December 2022, Dr Weissman reported that the plaintiff said of his back injury that he continues to experience, constant lower back pain, sometimes right hip pain and sometimes right knee pain.
45As to his left finger, the plaintiff said that he “experiences pain, ache, soreness and discomfort with hypersensitivity in his entire left index finger on the anterior aspect, radiating to the upper section of his left palm just inferior to his left index finger.”[61] Dr Weissman said the plaintiff told him that the left finger and part of his hand “goes cold”.[62]
[61] Exhibit P9, PCB 114.
[62] Exhibit P9, PCB 114.
46When asked about his leisure activities and hobbies, the plaintiff told Dr Weissman that he had played darts every Tuesday and Wednesday, however he had to stop because of his work commitments (driving night shift). He said he had not been on a boat or river cruise, because of the Mildura floods and had not been able to fish. He said that he no longer attends barbecues and he doesn’t socialise much anymore, mainly because he has lost interest in these activities. He sees his father most days for a coffee.
47As to the plaintiff’s capacity to perform personal activities of daily living, he told Dr Weissman that the hardest thing for him is eating with a fork in his left hand and that he is unable to push his left index finger down onto the back of a fork when eating. As well, he was experiencing problems lifting and carrying shopping bags in his left hand around his left index finger. Tying shoelaces, buttoning clothing and using zippers are difficult to navigate. He gave an example that recently he had to remove some of his wife’s jewellery and it took him a long time to be able to so and he became frustrated which is an emotion he said that he was experiencing generally because of his physical limitations and restrictions. He avoids using his left index finger wherever possible. He drives an automatic car and a manual truck at work which is sometimes difficult because gear changes cause vibration and hypersensitivity. Otherwise he remained able to shower and dress independently and is able to cook, clean and launder at home.
48He said he that he tends to avoid blades and sharp objects, which make him nervous and anxious, and unsettled, with hypervigilance and hyperarousal. He is cautious and apprehensive about shutting and closing doors. When he does any of the above activities, or when he talks about the work injury, or when he thinks about it, he develops sweaty palms bilaterally. He has occasional flashbacks of the incident, sometimes when he closes his eyes and other times triggered by trying to use his left index finger unsuccessfully.
49He has sleep disturbance with middle insomnia. He is now a light sleeper. He sometimes experiences initial insomnia due to his lower back pain as well as an ache in his left index finger, particularly during cold weather. Occasionally his sleep is disrupted by bad dreams. If a dog barks he wakes up and then has difficulty returning to sleep again.
Dr Elder
50Dr Elder is a consultant in occupational and environmental medicine who provided two independent medical examination reports to the insurer. In his first report dated 24 July 2020,[63] he noted that the plaintiff took paracetamol and had been able, with care, to return to fishing and camping and was independent in care and for matters such as laces, zips and buttons used his third finger in opposition for such tasks.[64] Dr Elder recommended the plaintiff have surgery to address the appearance of the nail matrix through the terminal pulp.[65]
[63] Exhibit P, PCB 124-131.
[64] Exhibit P10, PCB 126.
[65] Exhibit P10, PCB 126.
51In his second report, dated 20 May 2022,[66] Dr Elder largely repeated the matters addressed in his first report and noted that the nail matrix remained an issue for the plaintiff.[67]
[66] Exhibit P10, PCB 132-143.
[67] Exhibit P10, PCB 133.
Professor Bittar
52Professor Bittar, neurosurgeon, in a medico-legal report dated 22 November 2019[68] obtained by the defendant, addressed the plaintiff’s lower spine injury suffered in the truck accident on 6 October 2017. He explained that the accident occurred whilst the plaintiff was working as a dump truck driver and the “driver of another dump truck fell asleep and collided almost head on with his dump truck.”[69] Professor Bittar outlined the plaintiff’s past medical history, current symptoms and social history.
[68] Exhibit D1.
[69] Exhibit D1, DCB 222.
53Professor Bittar referred to the plaintiff’s left index finger injury and how he had “found another position that he was able to undertake; however, his back pain deteriorated significantly in that role, and notwithstanding that he ceased work largely due to his finger injury, it is extremely unlikely that he would have been able to continue in his most recent role in a reliable and consistent manner.”[70]
[70] Exhibit D1, DCB 225.
54Professor Bittar reported that the plaintiff’s “back pain is exacerbated by sitting or standing for more than one to one-and-a-half hours, bending, twisting, forceful pushing or pulling, or heavy lifting. It improves with recumbency and frequent change of posture.”[71] He went on to say that the plaintiff “socialises less due to his back pain and associated sitting and standing intolerance. His recreational activities are limited, including his ability to play with his children. His domestic activities are also limited. He requires assistance from his partner for most household cleaning tasks. Ultimately his quality of life is significantly diminished.”[72]
[71] Exhibit D1, DCB 222.
[72] Exhibit D1, DCB 222-223.
55Professor Bittar said that the plaintiff “has sustained an injury to his lumbar spine. The differential diagnosis would include aggravation of lumbar spondylosis as well as a soft tissue injury with the development of a chronic pain condition.”[73] He thought that the plaintiff’s “prognosis is guarded. He is likely to continue to suffer from significant pain and disability into the foreseeable future.”[74]
[73] Exhibit D1, DCB 223.
[74] Exhibit D1, DCB 225.
The Plaintiff Cross-Examined
56The plaintiff was not challenged by Mr Scanlon on his credit. Indeed, Mr Scanlon in final address, acknowledged that it was not a plank of the defence to the grant of the application that the plaintiff was other than a witness of truth. Rather, the purport of the cross-examination was directed towards the attainment of a finding by the Court, that the plaintiff’s evidence was insufficient to conclude that he had discharged his burden of proof that the finger injury was a serious injury under either paragraph (a) or (b) of the definition.
57Mr Scanlon directed the plaintiff to the reporting by Dr Weissman, who in his report dated 14 December 2022,[75] said that the plaintiff related to him constant low back pain, occasional right hip and right knee pain, and discomfort and some tightness in the neck.[76] The plaintiff said he did not recall this, and when it was put to him that Dr Weissman had said in the same report that the plaintiff told him he had pain in his lower back, the plaintiff said, “Like I said, like, it's been - over the years, it's, um, improved[77]” and that “It comes and goes”[78].
[75] Exhibit P9, PCB 106-123.
[76] Exhibit P9, PCB 114.
[77] T36, L29-30.
[78] T36, L31 – T37, L1.
58In pursuit of the contention that the plaintiff’s back injury comprises an operative reason that has affected his capacity to play football or cricket, Mr Scanlon suggested to him that clearly he was not going to be in a position where he could play either game with the condition of his back. The plaintiff agreed. When Mr Scanlon pressed the point and suggested to the plaintiff that the giving up of football and of cricket occurred as a result of the back injury, regardless of what happened to his finger, the plaintiff disagreed, and said that this was so in October 2017, but that, “I can’t play the football and the cricket because of my injury of my finger.”[79] In re-examination the plaintiff was asked by Mr Anderson if the state of his back that had prevented him playing football and cricket in May 2022 and coinciding with when he saw Dr Weissman was still operative, and he said it was not, and when asked to assess the current condition of his back, he said, “It's just gotten, I think – well, like, doing more exercises and I think it's strengthened up me muscles so it doesn't hurt.”[80]
[79] T33, L7-9.
[80] T46, L3-5.
59The plaintiff agreed with Mr Scanlon that after he injured his back in October 2017, he was prevented from engaging in a lot of physical activity and that he had told Dr Weissman that in the period of time that elapsed between the back injury and his attendance, that his weight had increased from just over 100 kilograms to 113 kilograms.
60Mr Scanlon questioned the plaintiff about his pursuit of eight ball. The plaintiff agreed that prior to the Covid restrictions and the prohibition on freedom of movement imposed by the Victorian Government, he had socialised and played eight ball with friends on a Tuesday night. He also agreed that from the time of the injury to his finger and up until the introduction of Covid restrictions he had played eight ball and socialised with friends.
61In addition to his own pursuit of darts, he coaches and mentors his daughter in the game, and as well, he agreed with Mr Scanlon that he provides some mechanical assistance to his brother who is involved in go-karting[81].
[81] T40, L26-31.
62When re-examined by Mr Anderson, the plaintiff explained that he had to adapt how he plays eight ball and said, “So, I'm left handed, so I gotta hold my cue in my left hand, which, of course, my hand is – my index finger is sticking out. But when I hit the white ball with my cue, it, like, does a jarring. So, that's why I, yeah, don't play that sport, because it…”[82] Perhaps the plaintiff meant that the cue was held with his right hand but that the end of the cue was cupped in his left hand, or in fact, that he does prefer to hold the cue in his left hand, because although the plaintiff did not depose in his affidavits to being left hand dominant or right hand dominant, his comment that he is left handed is at odds with such of the medical reporting that in reference to the matter refers to him as right hand dominant.[83]
[82] T45, L17-21.
[83] Mr Stapleton report dated 16 December 2022, Exhibit P8, PCB 63; Each of Dr Weismann’s reports dated 25 May 2020, 2 February 2021 and 14 December 2022. Exhibit P9, PCB 80, 95, 112.
63The plaintiff denied that his back condition interferes in any way with his ability to play eight ball.
Defendant’s Submissions paragraph (a)
64Mr Scanlon submitted that the plaintiff has adapted well to his injury, and this is much to his credit. Mr Scanlon pointed to limited evidence of a restriction in the performance of household and family duties and of any particular adaptations required by him in order for them to be performed.
65Mr Scanlon also referred to the fact that after he injured his back in October 2017 the plaintiff was prevented from engaging in a lot of physical activity and as a result had gained weight.
66Mr Scanlon submitted that the functional effects on the plaintiff’s ability to participate in sporting and recreational activities has been impacted by the back injury sustained in the truck accident. In support of his submission, Mr Scanlon referred to the reporting by Dr Weissman, that the effect of the dump truck accident had a significant effect upon the plaintiff’s ability to engage in numerous activities such as cricket and football and that as far as general activities out and about the house was concerned, including assisting his mother on one occasion with a removal of trees, his back had played merry havoc with him.
67Mr Scanlon submitted that fortunately the plaintiff has found good and safe employment, although he accepted that by dint of the finger injury, any future employment that the plaintiff might need to find, would need to be limited to duties that protect his finger.
68In the course of final address, Mr Scanlon referred to the decision of the Court of Appeal in TTB SMS Pty Ltd v Reading,[84] that involved a finger injury. The Court of Appeal concluded that the facts as found by the trial judge did not reach the requisite level to justify a finding of a serious injury under paragraph (a) of the definition. In addition to Reading, Mr Scanlon relied on decisions of mine in this Court in Bustos v VWA[85] and Dobbin v VWA[86]. In both of these, the plaintiffs pursued their applications by reliance on paragraph (a) and (b) of the definition of serious injury. In each of these cases, the parties undertook, in part, a comparison between the applicant’s injuries and consequences with those that had had presented in Reading. In both decisions, and in the course of argument in this application, I was at pains to point out that the determination of a serious injury application cannot be resolved by a checklist of factors and the toting up of a ledger such that if the sum total is more or less one way or the other, so too goes the disposition of the application. To do as much, would I think, amount to error. As I said in the two decisions of mine to which reference was made, the Court of Appeal in Reading, did not suggest that it was enunciating any new principle of law. The value of the decision, however, is undoubtedly in the judgement brought to bear in assessing seriousness against a set of facts, and the guidance that decision of the Court of Appeal can offer in like cases as to whether the narrative test for serious injury is satisfied. I empathise the word, “guidance” because the facts of each application must be assessed according to their own strengths and weaknesses. With these cautionary observations in mind, nonetheless, Mr Scanlon emphasised in part the differences between the plaintiff’s presentation in comparison with the plaintiffs in Reading, Bustos and Dobbin, each of whom were ultimately unsuccessful in their applications for the grant of a serious injury certificate. The fact of each of the workers failing either at first instance or on appeal cannot bind me in this application, because as I have said, the facts and circumstances of each case must be assessed in their own light but informed by established principles of law.
[84] [2020] VSCA 203 (‘Reading’).
[85] [2021] VCC 1531 (‘Bustos’).
[86] [2022] VCC 2173 (‘Dobbin’).
Age
69In Reading, the plaintiff was 38 years of age at the time of injury. Mr Bustos was 64 and Mr Dobbin was aged 33. Mr Williams was 29. It is relevant to have some regard to the potentially long years of suffering a young plaintiff will likely encounter with a serious impairment.[87] On the other hand, an older plaintiff should not be penalised. However, there is every reason to suppose that Mr Williams will experience pain in consequence of his finger injury for the foreseeable future.
[87] Hawkins v DHL Express [2013] VSCA 26.
Fingers affected
70In Reading, the plaintiff had three fingers affected, namely a middle finger that was dislocated, with the ring finger and the little finger surgically repaired with metalware permanently inserted. In Bustos, the applicant had one finger affected being the right index finger with the tip amputated. In Dobbin, Mr Dobbin had his right index finger affected by way of a surgical amputation. Mr Williams has had his left middle finger affected with a surgical amputation and a terminalisation.
Effect on work/employment
71Following his injury, Mr Reading was off work for four days and returned to work on modified duties. He had difficulty with some manual aspects of work. He ceased work after six months due to a company re-structure and subsequently commenced new employment at a ten-pin bowling centre where he became a full-time facilities manager for about seven years, and then returned to spray painting and supervisory work. He could paint for short periods with his right hand. A couple of years later he commenced another spray painting job as a leading hand. Mr Bustos was off work for 11 days after the injury. By October 2017, he was certified fit for normal duties. He returned to work on normal duties, but with some modifications. By November 2017, he returned to full-time normal duties. He had a second surgery and returned to light duties and then resumed normal duties. He uses his thumb and middle finger rather than thumb and index finger for some aspects of the job, such as picking up screws, adjusting bolts, turning dials etc. Mr Dobbin was off work for approximately three weeks and returned to light duties for four weeks before resuming normal duties. Mr Williams was off work for approximately three weeks and returned to light duties for four weeks before resuming normal duties. He found the yard work difficult and attendant with pain, and he has found less problematic work with full time driving.
72Mr Scanlon pointed to the fact that somewhat perversely because of his injury, and a need to give up manual yard work, the plaintiff has been able to concentrate exclusively on truck driving which the plaintiff accepted had always been his preference. Mr Scanlon submitted that “fortuitously and fortunately he’s in good, safe employment.”[88]
[88] T58, L21-22.
Pain/other effects
73Mr Reading, experienced intermittent pain and cramping in the right hand, mainly in the little and ring fingers.[89] There was numbness, spasms, pins and needles in the affected fingers.[90] There was permanent curling of the affected fingers along with an inability to move them properly. There was no movement in the little finger. There was significant clawing and constructive shortening. There was reduced fine movement and strength in the right hand.[91]
[89] Reading [2020] VSCA 203, [13].
[90] Ibid [9].
[91] Ibid [15].
74Mr Williams testified to a constant sensation and a throbbing when his hand is engaged in any way such as walking. He experiences pain when any pressure is applied to the tip and a loss of sensation to altered temperature. He has reduced flexion in the finger that contributes to reduced overall functionality to the left hand.
Current treatment
75Mr Reading was not receiving treatment. Mr Bustos was not undertaking treatment. Mr Dobbin was not undertaking treatment which was explicable because of the consensus of medical opinion that he had achieved maximum recovery. Mr Williams is not undertaking treatment.
Medication
76Mr Reading was not in receipt of prescription medication and was taking over-the-counter medication once or twice weekly. Mr Bustos had no recourse to medication including painkillers. Mr Dobbin was not in receipt of prescribed pain medication but was taking up to 16 Panadol a week. Mr Williams is not in receipt of prescribed pain medication and takes Panadol as required or perhaps every two days.[92] He said that he avoided strong medication because of a concern over his employment of driving.
[92] Exhibit P1, PCB 15.
Personal care
77Mr Reading’s personal care was unaffected. Mr Dobbins personal care was affected by difficulties associated with toileting. Mr Bustos had difficulty toileting and it was awkward for him to hold a toothbrush. Mr Williams personal care is unaffected.
Dressing/self-grooming
78Mr Reading experienced difficulties with writing, tying shoelaces, holding cutlery, putting things in a pocket or a drawer. Some problems of a like nature are encountered by Mr Williams.
Sporting/recreational
79Mr Reading lost his ability to play golf and water-ski. He remained able to fish but did so less frequently. Mr Dobbins did not depose to reactional or sporting pursuits prior to his accident that he lost, other than rock climbing. His pursuit of ten pin bowling had not been evidently affected, although he was compelled to use a larger and heavier ball to compensate for the effects of the injury. Mr Bustos did not depose to any reactional or sporting pursuits prior to the accident that he had lost. Mr Williams is able to fish as before, but does so less frequently. He said that the holding of a rod in his left hand can be difficult. He is unable to play to the same standard of eight ball and he said that he can no longer play football or cricket. He has been able to take up darts and the explanation for him playing less frequently is his busy life and not as a consequence of his finger injury.
80In sum total therefore, I think that fairly characterised, the defendant’s submission is, that on the available evidence, despite the plaintiff’s injury not being trivial, and it being permanent, it is not “serious”, with the implication that it would be erroneous for the Court to consider it “at least very considerable” and “more than merely significant or marked”.
Plaintiff’s submissions paragraph (a)
81Mr Anderson submitted that if I accepted the plaintiff’s evidence and bearing in mind that his credit was not challenged by the defendant, then the attendant features associated with the remainder of the finger, with its tip being tender, painful if bumped, and sensitive to the cold are characteristics which may be considered when determining the seriousness of the amputation. The alterations required in order for the plaintiff to give effect to those things he mentioned in his evidence, together with pain that is to some degree a constant companion in his life, should be assessed as sufficient to warrant the grant of a serious injury certificate pursuant to paragraph (a).
82Mr Anderson referred to the decision in Nguyen v Natures’ Gift Australia Pty Ltd,[93] in which the injury involved an amputation to the plaintiff’s finger and in which the central issue was “range”. The plaintiff had pressed his application on both paragraph (a) and (b) of the definition of serious injury. His Honour Judge Bowman found that:
(a) the injury was to the plaintiff’s dominant hand;
(b) the absence of the finger affected all aspects of the plaintiff’s everyday life including social, domestic, and recreational activities;
(c) simple tasks were impacted, such as gripping small objects, using pens and pencils, or a knife;
(d) ongoing pain was felt in the injured finger, particularly when the tip of the finger came into contact with objects;
(e) three surgical procedures had been endured by the plaintiff;
(f) the plaintiff was truthful and stoic; and
(g) the plaintiff’s everyday work activities were impacted by pain and physical restriction, and certain occupations were no longer open to him.
[93] [2018] VCC 1960 (‘Nguyen’).
83Mr Anderson’s overall submission in support of the claim under paragraph (a), was that the plaintiff has been denied a basic human function with which he was born namely, the meaningful and effective use of his index finger of his hand, together with pain and sensitivity and numbness, the tingling, the loss of movement, and of grip strength, and the impairment of recreation and of unfettered employment.
Defendant’s submissions paragraph (b)
84On the claim that the plaintiff has suffered a serious injury in the form of disfigurement, Mr Scanlon submitted that the plaintiff’s finger did not warrant such a characterisation when assessed according to both the consequences to him and when judged objectively and comparatively to that range of disfigurement injuries.
Plaintiff’s submissions paragraph (b)
85Mr Anderson in his closing address submitted that the amputation to the finger is observable and is a serious injury without anything more. Mr Anderson developed his argument in part in response to a question that I posed of him which was whether it was his submission that an amputation to a finger on either a dominant or non dominant hand of itself is a serious injury for the purposes of paragraph (b). It struck me that such a submission would come close to an argument that one is to assess seriousness according to the disfigurement injury and not its consequences. Mr Anderson clarified that this was not his submission, because he accepted that it may be that if an amputation was, for example, to the very tip of the finger it would not be treated as a serious injury. However, he said that “the bigger the loss, as in the longer the amputation the more it lends itself towards visual disfigurement and the further away you can see it and the more noticeable it is.”[94] Nonetheless, Mr Anderson’s submission was that on the facts of this application, that by reason of the observable extent of the loss of the length of the plaintiff’s finger, he has suffered a serious injury by way of a disfigurement.
[94] T74, L14-17. Transcript final address
86However, and in the event, I was not persuaded by this submission, Mr Anderson sought to buttress the paragraph (b) claim by reliance on the tenderness of the disfigured stump and the sensitivity to touch deposed to by the plaintiff and corroborated by the report of Dr Stapleton. Mr Anderson also pointed to the plaintiff’s evidence of the disgust he has when he sees the condition of the finger he has been left with, and his distaste of the fact that it excites conversation and questions by people with whom he comes in contact, and that the look of the finger, is a constant reminder of the accident.
Relevant legal principles
87There are a number of settled legal principles that inform the question of a grant of leave in serious injury applications. I need to only address them briefly. The Court must not give leave unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury”.[95] In order to establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by him arose out of or due to the nature of his employment with the employer on or after 1 July 2014;[96]
“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[97]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[98]
[95] Section 335(5)(a) of the WIRCA.
[96] Section 5(1) of the WIRCA.
[97] Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33, [33].
[98] Section 325(2)(b) and (c) of the WIRCA.
88The requirement to satisfy the elements mentioned above is sometimes referred to as the “narrative test”.
89Furthermore, in assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
90In addition, in determining the application:
the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise;[99]
the Court must assess whether “the injury” is a “serious injury” as at the time the application is heard;[100]
the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[101]
In assessing the seriousness of the claimed impairment consequences, the Court is required to consider both the effects of the impairment and those aspects of the body function that remain unaffected.[102]
The question of whether an injury satisfies the narrative test is largely one of impression or value judgment.[103]
[99] Section 325(2)(h) of the WIRCA.
[100] Section 325(2)(j) of the WIRCA.
[101]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
[102] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 181.
[103]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; see also Sabo v George Weston Foods [2009] VSCA 242, [67].
91The “consequences” to the plaintiff of any impairment or loss of body function in relation to paragraph (a) or disfigurement in relation to paragraph (b) of the definition of serious injury must be “serious”. This is expressed in s325(2) and, in particular, paragraphs (b) and (c), which state:
“(b) 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, … as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, … respectively;
(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of section 335(2) unless -
(i) the pain and suffering consequence …
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;”
Impairment or disfigurement methodology of comparison
92For a claim for disfigurement under paragraph (b), the WIRCA requires that seriousness of the same is determined by reference to the consequences to the worker of the impairment and/or disfigurement with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments and/or disfigurements, and that when such exercise has been undertaken it may fairly be described as being more than significant or marked and as being at least very considerable. In Ingram v Ingram[104] at 438, Callaway JA observed in respect of s93(17)(b) of the Transport Accident Act 1986 that:
“…it is important not to read para (b) in isolation. ‘Permanent serious disfigurement’ within the intendment of the statute must be such disfigurement as bears comparison with such injuries as serious long term impairment of a body function, severe long term mental illness and loss of an unborn child.”
[104][1996] 2 VR 435.
93Whether the statement in Ingram should be applied in workplace injury proceedings as opposed to transport accidents has not been definitely answered as far as I am aware. The words “as the case may be” in s325(2), perhaps suggests that the requisite comparison is to be confined to comparison within the class of injuries relevant to the particular application, and not by reference to injuries in other classes. In any event, the point was not developed in the course of the hearing of this application, and irrespective of the potential differences in approach by way of the comparison, my decision would not have been different.
Analysis and Findings paragraph (a)
94In Reading, the Court of Appeal observed that the respondent worker “…has no residual symptoms in his middle finger. He has mild curling of his ring finger and more to his little finger. At rest, they are not painful, but ache and cramp if used too much. They make his dominant right hand slightly clumsy”[105]. On the balance of evidence, I accept that Mr Williams experiences some pain each day including if trying to stretch the remainder of the affected left index finger or, for example, when engaged in the benign activity of walking.
[105] Reading [2020] VSCA 203, [31].
95The lack of recourse to specialist medical care by Mr Williams in recent times is explicable in light of the absence of evidence that there is any further management or intervention required.
96Mr Williams pain relief is limited to Panadol.
97Unlike the Court of Appeal who judged Mr Reading to only have experienced a “mild impact on his recreational activities,”[106] I have assessed the impact on the plaintiff’s recreational activities as moderate, and in making this finding, and in assessing the seriousness of the claimed impairment consequences, I have considered both the effects of the impairment and those aspects of the affected body function which remain unaffected. I accept that Mr Williams has lost a fully the unimpeded capacity to play eight ball, however, he can still play the game when he chooses. I accept that he has lost cricket and football. In making this finding, I accept that there is some force in Mr Scanlon’s submission that the back injury, and the finger injury, have operated at times together to impede the capacity to participate in and enjoy them, but I am required to determine the application at today’s date and, when that is the prism through which the matter is assessed, I am satisfied that the predominant reason the plaintiff cannot play cricket and football now, and into the foreseeable future, is in consequence of the compensable injury to the left finger. Of course, the plaintiff has taken up darts. He appears to play some role in assisting his brother with go-karts.
[106] Ibid.
98In Haden Engineering Pty Ltd v McKinnon,[107] Maxwell P set out various principles to which recourse is invariably had in serious injury applications in an effort to assist in evaluating the “pain and suffering consequences” in a given set of circumstances. In particular, at paragraphs [14]-[15] under the heading “The disabling effect of pain”, the learned President said:
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained’.[108]
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.[109] 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]’.[110]
[107] (2010) 31 VR 1 (‘Haden’).
[108] Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [27].
[109] Reference was made to Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [47].
[110]Reference was again made to Dwyer v Calco Timbers Pty Ltd(No 2) [2008] VSCA 260, [25].
99Also in In Haden, Maxwell P, identified a list of ordinary activities which may be affected by a “very considerable” injury:
·sleep;
·mobility;
·cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
·capacity for self-care and self-management;
·performance of household and family duties;
·recreational activities;
·social activities;
·sexual life; and
·enjoyment of life.
100In addressing Haden, and the indicia therein discussed, the plaintiff does not rely on most of those identified in Haden, including mobility, cognitive functioning, capacity for self-care and self-management. I am not satisfied that the extent of disturbed sleep to which responsibility is attributable to the finger injury is serious.
101When assessing what has been lost and what has been retained, Mr Williams has fortunately retained a great deal. He is able to work full time and without the apparent need to have modified his driving of trucks due to his impairment injury. He is able to fish, although he referred to some uncomfortableness when the rod is in his left hand, and he is able to play eight ball, despite his account that the holding of the cue can cause some jarring sensation. I am satisfied that these recreational pursuits are still well within his capacity to pursue when his work and family commitments permit. The same may be said for darts. He is independent in his activities of daily living. The treatment he required has come and gone. There is no prescribed medication, no ongoing hand therapy, and no ongoing attendances for treatment from his general practitioner for his injury.
102I accept that Mr Williams experiences pain at the variable levels he has described and that the pain is amplified and more frequent in winter.
103I accept that the loss of the portion of his left index finger to his hand and the diminution in flexion of the remainder of it, together with its hypersensitivity and pain, comprises an injury that is more than trivial and is significant and that it was sustained at a relatively young age and that there will a probable future need for any employment pursuits to take account of the limits on some duties that would require execution with the unencumbered use of the fingers of two hands. I accept that the injury impacts on the deft use of a fork and doing fine or “fiddly” tasks, some of which, such as buttoning and unbuttoning he is confronted with on a daily basis. I accept that this is annoying and frustrating and with inadvertence may cause some painful contact with the fingertip.
104I note that in the decision of MacDougall v VWA,[111] to which I referred the parties, the applicant had suffered a severe injury by way of laceration of the pulp in the volar and medial aspects of his right dominant index finger. Her Honour Judge Clayton, when comparing the consequences of the plaintiff’s injury, to the range of possible consequences, and comparing what had been lost with what had been retained, was not satisfied that the consequences for the plaintiff were more than significant or marked or at least very considerable. Her Honour referred to among a number of authorities, the decision of the Court of Appeal in Reading.
[111] MacDougal v VWA [2021] VCC 1292.
Conclusion on paragraph (a)
105Having compared the consequences of this injury, to the range of possible consequences, and comparing what has been lost by Mr Williams with what has been retained, I am not satisfied that the consequences for him are more than significant or marked or at least very considerable. The following reasoning from the Court of Appeal in Reading resonates:
“Whilst these impairments are certainly not trivial, in our view, they cannot be fairly described as ‘at least very considerable’. 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”.
106Mr Williams has retained his ability to work full time in his preferred occupation of driving. It is both coincidental and fortunate that in part because of the finger injury that the truck driving that he has always enjoyed and is engaged in full time has become his career. He retains a full capacity to care for himself and live independently. He has no cognitive defect, his sleep such as may be affected because of his finger injury is not significant, and he requires no prescription medication and he is able to continue to participate in some leisure and recreational pursuits.
107For the reasons expressed, I am not satisfied that the plaintiff has satisfied the claim under paragraph (a).
Analysis and findings paragraph (b)
108I am not satisfied the plaintiff has discharged the burden of proof in establishing a serious injury under paragraph (b) of the definition. I am not satisfied that the plaintiff has established, as a matter of probability, satisfaction of the narrative test when the disfigurement is assessed as called for. Whilst undoubtedly there is a disfigurement, it must of course, also satisfy the requirement of being “serious” within the meaning of the Act. I have assessed the plaintiff’s disfigurement by having regard to the objective characteristics of the finger, my observations of it, and having considered all the evidence before me.[112] I note that in TAC vGarcia,[113] the Court of Appeal said that in relation to the nature of a claim under (b), a set of written reasons would not necessarily dilate upon the matter at length or in detail and to the extent perhaps more likely warranted in a standard paragraph (a) case. However, that is not to say that cogent and explicable reasons are not required and, to that end, I have reached my conclusion for the following reasons.
[112] See Judge KL Bourke in Naguib v VWA [2017] VCC 1710, [138].
[113] [2015] VSCA 225.
109I have had regard to the surgical and medical attention and attendances the plaintiff’s injury has called for. I have had regard to the disfigurement’s location. The amputation is apparent and in an area that is obvious whether observed at close quarters or at middle or long distance such as when the left hand is raised as was demonstrated by the plaintiff in Court. If the plaintiff’s left hand is held by his side and not extended or projected forward, it would likely not be as evident. However, that the plaintiff might be thought to remain largely in such a regimented position is unrealistic.
110I have had regard to the loss of length. It is an evident loss when viewed alongside his adjacent digits and from some distance.
111Putting aside the loss in length, the finger’s appearance is otherwise relatively smooth and unremarkable. Perhaps this may more often be the case as a result of a surgical amputation as opposed to the ongoing appearance of a scarring disfigurement. I am conscious that in Garcia v TAC,[114] at first instance, his Honour, Judge Misso addressed a claim made under paragraph (b) of the definition of serious injury under the Transport Accident Act 1986[115] in the guise of a scar that presented some 15 cm in length on the applicant’s left upper arm. His Honour Judge Misso described its presentation in vivid terms, but Mr Scanlon submitted this was not a comparable picture that applied to Mr Williams. In Garcia v TAC, his Honour said:
“I was invited to view the scarring during the plaintiff’s evidence-in-chief. What I observed was a scar running from just under the shoulder joint and extending down the front of the plaintiff’s left bicep. The scar is very obvious. It was 3 or 4 millimetres wide, as best I could estimate. The scar was reddish in colour.”[116]
[114] [2015] VCC 140.
[115] For present purposes the definition of serious injury for a disfigurement claim under the Transport Accident Act 1986 is no different than is contained in the WIRCA.
[116] Garcia v TAC [2015] VCC 140, [8].
112The unsightliness of a scar such as presented in Garcia, and the myriad visual appearances a scar may take on, is perhaps, although not necessarily, more confronting and difficult for the sufferer to adjust to, than is a part of a finger that has been surgically amputated. However, I recognise that the sufferer of the scar on a leg or arm, for example, may be able to clothe it, whereas the amputee, and in particular Mr Williams, suffering a finger loss, is less able to do so.
113I accept that, as a matter of law, the plaintiff’s emotional reaction to his finger and that I have earlier described above, is a permissible consideration and adds an element of seriousness to the disfigurement, as was explained by the Court of Appeal in TAC v Garcia.[117] Psychiatric consequences must be ignored, and have been ignored by me.
[117] [2015] VSCA 225 at [27].
114I find that in consequence of the amputation the plaintiff has lost dexterity with fine manipulation and in the everyday use of a fork and that the managing of small objects is difficult which has adversely impacted the plaintiff’s abilities in performing some handyman like tasks around the home.
115In Nguyen, mentioned earlier, Judge Bowman found that the injury had produced pain and suffering consequences which satisfied limb (a) of the definition statutory test and in consequence of that finding, and as his Honour observed, he did not need to make a finding on whether the injury satisfied paragraph (b) of the definition of serious injury but, by way of obiter, his Honour, said that had it called for a decision, he would have made such a finding, and he adumbrated the following matters as important in reaching such a conclusion:
(a) the loss of the finger was “quite evident”, upon viewing the plaintiff’s injury;
(b) embarrassment was felt by the plaintiff;
(c) the plaintiff was self-conscious about his finger; and this is something which the plaintiff will have to live with for the rest of his life, in social situations and as his children grow up… .”.
116Here, of course, there are features that are distinguishable from those which Judge Bowman was presented with in Nguyen. The injury to Mr Williams has affected his left non-dominant index finger whereas in Nguyen the finger affected was the right middle finger to the dominant hand and was described as the major, longest and dominant finger, on the hand that the plaintiff utilised most frequently. Judge Bowman placed great emphasis on the loss of the joint (just above the distal interphalangeal joint) on that particular finger. On inspection of the finger, the loss was evident and able to be seen from middle distance. I accept Mr Anderson’s submission that the extent of loss of length is greater and the observable disfigurement attendant Mr Williams can be seen from further than middle distance.
117Due to the consequences of his injury, Mr Nguyen ceased playing basketball with his children and was limited to playing badminton with them. He could no longer maintain his garden, with mowing lawns being a problem for him. He was no longer able use chopsticks, which Judge Bowman regarded as a culturally important and adverse consequence, because this had been his traditional manner of eating. As I have hopefully already explained, the breadth of impact on Mr Williams is not of a comparable level.
118For the reasons expressed, I am not satisfied that the plaintiff has a permanent serious disfigurement under paragraph (b). I have reached this conclusion having regard to the objective characteristics of the disfigurement, the observations I made of it, and the plaintiff’s description of it, together with his subjective account of pain and difficulties associated with it. There is of course, in my process of decision-making, an aspect that represents a value judgement in determining it in the range of disfigurements as is required of me under the Act. After having applied my assessment to the subjective and objective consequences of the disfigurement, the plaintiff’s application for serious injury is refused. I will hear the parties on the question of costs.
0
17
0