Yin v VWA

[2019] VCC 174

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

 Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY

Case No. CI-18-03864

DAFEI YIN	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2019
DATE OF JUDGMENT:	25 February 2019
CASE MAY BE CITED AS:	Yin v VWA
MEDIUM NEUTRAL CITATION:	[2019] VCC 174

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury – left hand – Paragraphs (a) and (b)
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:            
Judgment:                Leave granted to bring proceedings for pain and suffering damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Fitzpatrick	Slater and Gordon
For the Defendant	Mr D McWilliams	Russell Kennedy

HIS HONOUR:

1       Leave is sought under paragraph (a) for a permanent impairment of the left middle finger following a crush injury which resulted in a partial amputation of the tip. Paragraph (b) is also relied on by way of a permanent serious disfigurement.

2       On 5 October 2015 Mr Yin’s middle finger was caught in the moving parts of a machine at the factory he worked at. It is an admitted compensable injury. He was treated at the Emergency Department of the Dandenong Hospital where surgery took place. His finger was damaged down to the bone. The skin and soft tissue was amputated distal to the distal interphalangeal joint. In theatre on 7 October 2015, the left middle finger pulp was debrided and a cross finger flap was taken from his ring finger and applied to the middle finger.[1]

[1]Plaintiff’s Court Book(PCB)37

3       Hand therapy was then commenced. Conservative treatment followed but the pain, altered sensitivity and limitations remained. I accept it caused discomfort and other symptoms every day.[2] He was off work for six months. He is a very well motivated man who then commenced studies in carpentry. He eventually got into that very manual and heavy trade and still works in that field despite ongoing symptoms with respect to many of the functions involved in that employment.

[2]PCB3

4       He has to fully bandage his finger every day. He  demonstrated in court the significant bandaging of most of the finger including the very tip of it required for him to go to work each day and carry out his tasks as a carpenter.[3] Due to his persistence and keenness to keep working in spite of symptoms and the risks involved in his trade, there is no claim before me in relation to loss of earning capacity. Pain and suffering consequences are relied on including loss of his capacity to play guitar.

[3]Transcript(T)25,41

5       Ongoing symptoms led him to being referred to Mr Frank Lin a plastic surgeon who first saw him in November 2017. The surgeon reported “…he still experiences significant problems with the use of the digit. Specifically this relates to sensitivity and tenderness on tip pinch, which requires him to use a padded strapping at work. Also, he reports a tight scar at the hyponychium, or the transition point between the tip skin and the distal aspect of the nail bed. This results in pain and difficulty with nail trimming. He reports that while he is able to carry on his daily activities as well as work duties, he is distressed by the symptoms and would like to seek further revision surgery for his injury.”[4]

[4]PCB38

6       Mr Lin advised further surgery. It was undertaken at Epworth on 30 January 2018. Some improvement was noted by the surgeon and this is consistent with what the plaintiff himself said. It was an admission against interest but the plaintiff said there had been a 10% improvement in his condition following the revision operation.[5] This was consistent with an honest witness but also an accurate one.

[5]T40

7       It has often been said pain and suffering applications like this are often matters of fact, degree and impression. That applies to this case. The medical evidence describes the crushing injury and is noncontroversial. Central to the application is really what I make of the plaintiff’s evidence about the consequences of this injury by way of his symptoms and loss of one of the passions of his life. He has enjoyed music since he was about six years old. He moved in to guitar playing and continued the interest both in China and after coming to Australia in 2008.[6]

[6]PCB4,9,10-11

8       He generally played bass guitar in a band. Just the involvement in a band is an indication of his very significant interest in playing. That is also confirmed  when the practice required several times per week is also taken into account.[7] I accept his evidence, which was not really challenged, that his guitar playing together with his playing basketball were his “two “passions in life”.[8]

[7]PCB10

[8]PCB11

9       I also accept his evidence that he cannot play guitar because of the finger force required against the string and the pain involved in that. Not only is it painful for him to try and play but with his finger bandaged, which he needs to do to protect it, but this makes the finger bulky such as to contact another of the strings that he does not want contacted. That would be sufficient to cause him to be unable to play properly.[9] After seeing the bandaged hand and the size of the bandage that he needs to apply, this is no more than common sense when the strings and frets on a guitar are considered.

[9]PCB40-41

10      It is always helpful to both hear and observe a witness in serious injury applications particularly involving pain and suffering considerations. Mr Yin  significantly understates his problems. It is testament to him that he works in such a demanding  trade and does so with little complaint. There was no exaggeration on his part. He made admissions against interest including his capacity to carry out gymnasium activities as well as the improved result from the second operation. His English is not good and his affidavits were sworn with an interpreter who he required in court but he was very straight forward and quite matter of fact in his testimony.  

11      In the end I found his credit was not impeached. He was an honest, frank  and reliable witness who at all times through broken English was attempting to give honest answers. I accept what he said about his pain and constant stretching, a pulling feeling  as well as the annoying sensation and the altered sensory problems he has.[10] These are permanent problems. He is the best judge of his symptoms and when a stoical man describes such difficulties, the probabilities are they are very real.

[10]PCB11

12      The medical evidence of itself does not determine this case. The injury is obvious. I have viewed at close range the clear aftermath of it in terms of the obvious discoloured lump of pulp on the middle finger. I have also seen his scarred ring finger where the donor site is very visible. Similarly the keloid scar on his forearm is very dark in colour and raised.

13      His hand injuries are demonstrable both on the inside of his hand and the outside. On the inside the grafted pulp area is a different colour and somewhat raised but it also grows hair because it came from the back of the other finger where hair usually grows. It has to be shaved every week or so. The outside of his hand where the donor site from his ring finger is another very obvious reminder of the crash injury and the resultant treatment. Additional to the disfigurement in several parts of the hand, his forearm scar is in some ways the  most visible and troubling to him with people asking him about it.[11]

[11]PCB7

14      There is no need in this case to spend any time on the medical evidence in view of the admitted to compensable injury and the task here is really one of assessing the consequences suffered from a very obvious injury and the obvious repair treatments. Nevertheless, Dr Nam, plastic and reconstructive surgeon who saw the plaintiff for the defendant was supportive in a number of ways.

15      That surgeon said some six months after Mr Lin’s reconstructive operation in January 2018 that “His condition has stabilised and he has a permanent impairment of his left middle finger. Further surgery is available to improve the quality and durability of the skin of his skin graft on tip of his left middle finger. With respect to prognosis, however, his left middle finger has a skin covering which is not able to withstand heavy repetitive trauma as is the normal skin of a fingertip. The skin, therefore, is more subject to injury from minor trauma and abrasion.” [12]

[12]Defendant’s Court Book(DCB)6

16      This was the only report tendered by the defendant. The surgeon also pointed out how it was to Mr Yin’s credit that he was able to complete his work as a carpenter and perform his duties “…but he has to tape his finger and protect the left middle finger at all times when he is working.”[13] Mr Nam supports my conclusion that there are ongoing problems with respect to his impaired left-hand and in particular the impaired middle finger. It goes without saying the middle digit is the longest on the human hand and is clearly at risk in terms of the multitude of manual tasks, knocks, vibrations and situations he must get into daily working as he does as a full-time carpenter. A fair reading of Mr Nam’s report also supports my finding that any serious guitar playing is permanently out of the question.

[13]DCB6

17       I accept the plaintiff’s guitar playing days are over. I also accept it is not only the pain of pressing the strings at the fret end but that the bandage impedes any clear and unobstructed access to strings such as any serious player requires. I also accept this was an absolute passion for this man. Almost everyone has a passion and particularly very well motivated people like Mr Yin. He has lost his major recreational interest in life being guitar playing.

18      Both counsel very properly and responsibly confined the issues in the paragraph (a) application to a consideration of how his left hand impairment impacted on his passion for guitar playing. This case really reduces to whether his loss of guitar playing is very considerable when judged by comparison with other cases in the range of possible impairments. In other words can this loss to him, which I accept is permanent, be fairly described as being at least very considerable.

19      Dealing with these pain and suffering applications continuously in this jurisdiction I consider it can be fairly described as very considerable. Enjoyment of playing music can be experienced all one’s life. It does not depend on youth or vigour and robust health as some other  interests do. For this young man the loss of enjoyment of life in not being able to play guitar as he should be able to play, is a very considerable consequence.

20      There is clearly permanent disfigurement of two of his fingers and his forearm. However it is not necessary to go on and deal with the paragraph (b) permanent disfigurement part of the claim as “serious injury’ under paragraph (a) has been proved.

21      I grant leave to bring proceedings for pain and suffering damages.