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County Court of Victoria |
Last Updated: 18 May 2020
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Revised
Not Restricted Suitable for Publication |
Case No. CI-19-01499
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – partial amputation of the pulp of the left index finger – paragraph (a) of the definition of “serious injury” – pain and suffering only – range case
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; (2010) 31 VR 1; Humphries & Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; (2011) 31 VR 100
Judgment: Application dismissed.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Shine Lawyers
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For the Defendant
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Wisewould Mahony
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1 By way of Originating Motion, Caleb Tynan Duffus (“the plaintiff”) seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring common law proceedings to recover damages for an injury to his left index finger suffered by him during the course of his employment with Green View Scapes (“the defendant”) on 6 January 2016 (“the injury”).
2 The plaintiff seeks leave to bring proceedings in relation to the injury for “pain and suffering” damages only within the meaning of s325(1) of the Act.
3 The plaintiff was the only witness to give evidence and be cross-examined. Both parties tendered a variety of documents.[1]
Relevant legal principles
4 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” contained in s325(1) of the Act.[2]
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act, which reads:
“‘serious injury’ means—(a) permanent serious impairment or loss of a body function;
... .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the left index finger.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a) The “injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant on or after 1 July 2014;[3]
(b) The “injury” and the resulting impairment under paragraph (a) must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c) The “consequences” to the plaintiff of the injury in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of function is:
“... when judged by comparison with other cases in the range of possible impairments ... as the case may be ... [can be], fairly described as being more than significant or marked, and as being at least very considerable;... .”[5]
This is sometimes referred to as the “narrative” test.
8 In determining the application, the Court:
(a) Must not take into account psychological or psychiatric consequences of the “injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[6](b) Must make the assessment of “serious injury” at the time the application is heard;[7]
(c) Must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application;[8]
- Notes that the question of whether “an injury” satisfies the narrative test is largely a question of impression or value judgment;[9]
The issues
9 When queried as to what were the issues in the proceeding, counsel for the defendant advised the Court that the matter was a “range case”. In particular, counsel for the defendant confirmed that there was no issue that there was a compensable finger injury and that injury has resulted in a degree of impairment with consequences.
10 However, it was submitted that to the extent that there were consequences, such consequences did not satisfy the narrative test. In particular, counsel for the defendant stated:
“In our submission he doesn’t meet the threshold of a more than significant and marked, Your Honour. There is some credit material, and Your Honour hasn’t had the benefit of having the defendant’s court book for more than a few minutes, but there is a number of - there are a number of activities that the plaintiff can engage in now, as is evident by Facebook and other social media posts. So, in the defendant’s submission whilst there may be some limitations on the plaintiff in respect of following his injury, he has retained a considerable degree of function and the ability to engage in social activities and social pursuits which don’t get him over the threshold.”[10]
The evidence of the Plaintiff
11 The plaintiff relies on his two affidavits sworn, respectively, on 12 December 2019 and 8 August 2019.[11] The plaintiff gave evidence that he had read both those affidavits recorded on the day and they were accurate in all respects.[12]
12 In his first affidavit, the plaintiff deposes that he is twenty-two years of age, having been born in April 1997.
13 The plaintiff attended the Mornington Secondary College and completed Year 12 in 2014.
14 During his Year 11 at the Mornington Secondary College, the plaintiff completed, as part of the Victorian Certificate of Applied Learning, a Certificate II in Building and Construction at Chisholm TAFE in Frankston. In particular, his certificate was one of “excellence”.
15 The plaintiff notes that he enjoyed “carpentry work” and was hopeful at that time of one day acquiring a trade or carrying out “hands-on” work.
16 At the end of his schooling, and in November 2014, he commenced work as a labourer on a casual basis in the landscaping business of Nathan Ford who traded as Green View Scapes (“the defendant”). At that time, he was working approximately three to four days a week over November and December 2014.
17 At the commencement on 2015, the plaintiff then worked as a labourer at Alameda Landscapes for approximately ten months, after which he left, thinking about his work and study options. In January 2016, when still thinking about his future, he went back to work as a labourer on a casual basis with the defendant.
18 On 6 January 2016, during the course of his employment with the defendant, the bucket of an excavator being operated by Nathan Ford dropped down onto his left hand, causing his left index finger to be caught. That finger was badly cut as a result of the incident, with most of the pulp part of the end of it coming away. He was treated with ice and then driven to the Sandringham Hospital, and later to The Alfred hospital, where surgery was undertaken on his injured left index finger. He noted there was an attempted skin graft which failed to take, and the wound was left to heal of its own accord.
19 The plaintiff was off work for four or five months and then, in approximately May 2016, he carried out three weeks of roof-plumbing work for Paradigm Roofing, which mainly entailed putting galvanised sheeting on roofs.
20 In particular, the plaintiff notes that he struggled performing such work due to his injured left index finger, as he had trouble in handling screws and nuts adequately because of left index finger pain, and also because of loss of sensation at the end of that finger. Furthermore, using such tools as drills and hammers, aggravated these problems.
21 The plaintiff is left-hand dominant.
22 Later, the plaintiff performed some casual work during the weekend at the Frankston Indoor Sports Centre setting up jumping castles, and in 2017, he completed a ten-week Certificate II TAFE course in electro-technology. He passed such course, but found the practical part difficult due to similar handling problems he had with the roof-plumbing work earlier, that is to say, carrying out finer movements with small wires and the handling of small screws and nuts. Because of this, he did not pursue such work.
23 The plaintiff then commenced work carrying out a graphic design internship in Mornington with Prolific Communications. He had obtained that job through a friend of his father, whose business it was, but found the work was slow-paced, but he was able to manage it until the business closed after about six months. Some aspects of the job were more difficult due to the left index finger, such as using a keyboard.
24 The plaintiff notes that prior to his injury, he really did not have a treating doctor, but after a while he attended the Hill Medical Service in Noble Park and, in particular, saw Dr Andrea Rankin. Because of ongoing problems with his left index finger, Dr Rankin referred the plaintiff to the hand surgeon, Mr Stephen Tham, on 4 August 2017. He did not go to see Mr Tham at that time, as he had a number of “personal issues I was dealing with” and, furthermore, given the poor result of the earlier surgery, he was reluctant about having any other further surgery on his injured left index finger.
25 In October 2017, the plaintiff commenced work as a screen printer at Voyager Screen Printing in Seaford, where he worked thirty-eight hours a week and earned $750 net per week. He obtained this job through a school friend who also works there.
26 The plaintiff notes that that business mainly carries out printing on clothing, such as t-shirts. He carries out some design-related work on the computer and also manual screen-printing work. Whether such work is on the computer or manual work, he has to accommodate his left finger injury and, for example in using the computer, he does not use his left index finger, and in screen printing, he does not apply pressure to his left index finger when holding or pulling the squeegee across the screen-printing frame.
27 The plaintiff notes that although he is not sure what sort of job he would have ended up with if the left index finger injury had not occurred, he considers that the injury limits him in most areas of work that he is interested in – for example it limits him in heavy work, such as landscaping and plumbing, and also for finer work, such as electrical work.
28 The plaintiff describes the position of his left index finger injury to be that the underside of that finger, from the last knuckle joint to the tip, normally feels numb. Furthermore, when pressure is applied to the end of the finger, or it is hot, or in cooler weather, he gets pain in the finger, which is often a sharp pain.
29 As a consequence of his left finger injury, the plaintiff notes:
(a) The end of that finger gives rise to difficulty in discerning between sharp and blunt objects, or hot and cold. Furthermore, it is difficult to manipulate finger objects and also to apply pressure when lifting heavier objects. His left-hand grip is less, and this causes problems with everyday tasks, including writing, doing up buttons, unscrewing jars, cleaning his teeth, shaving and toileting. Although he can still carry out these tasks left handed, he now tries to avoid using his left index finger, with the consequence that he is now sometimes more awkward, and less efficient and confident in carrying out such tasks;
(b) The left index finger is now slightly shorter than it was before his injury and the knuckle joint on the underside is swollen and puffy. The end of it is narrow and looks ill-formed;
(c) For approximately two years prior to the injury, he and some friends would go rock climbing about twice a month at Bayside Rock Climbing in Carrum Downs, but he now finds that since the injury, he struggles to perform such activity because he cannot grip the walls with his left hand, and if the left index finger was knocked, he would get a lot of pain. These issues contributed to him feeling less safe in rock climbing and he has not done it since those occasions;
(d) He currently attends the Gateway Church in Seaford, where he is a youth leader of Year 11’s – that is, sixteen to seventeen-year-olds. In this role, he notes there is a lot of sport, such as basketball and football, played. When he sometimes joins in these games, he is constantly trying to protect and avoid his left index finger, for fear of it being knocked. He gives the example that if he catches a basketball or marks a football in a manner that causes pain to his left index finger, he experiences much pain in it;
(e) He has a two-year-old daughter, who lives with his wife, who has now separated from him. He notes that he sees his daughter regularly and finds that he is limited in being able to freely play ball games with her and he is concerned about any limitations on his activities with his daughter in the future;
(f) Prior to his injury, he had a home gym for about a year. Although he still uses the gym approximately two to three times a week, he is limited as to what he can perform – in particular, the injured left index finger makes it more awkward gripping bar bells, dumb bells, and pull-up bars;
(g) Prior to his injury, he had both an acoustic and electric guitar, and before the injury, he used to enjoy playing them approximately once or twice per week. He has not played the guitar for a long time now, because after his injury, pressing down with his left index finger in making chords caused pain, and he also found a lack of sensation in the injured finger decreased his confidence and ease in making chords.
30 In his second affidavit, the plaintiff deposes that he continues to suffer with the difficulties and restrictions in his left index finger previously referred to in his first affidavit. In particular, he notes the end of the left index finger normally feels numb, but when pressure is applied to it, or when it is hot, he experiences a sharp pain in the finger. He also gets a pulsing sensation at the end of the left index finger and notes that the pain and pulsing sensation appears to be worse in cooler weather.
31 The plaintiff confirms that he continues to have difficulty in distinguishing between sharp and blunt objects when using his left index finger. Furthermore, he finds it more difficult to manipulate finer objects, such as screws, doing up buttons with his left hand due to the left index finger, and having less grip strength in his left hand. He also confirms that he continues to have difficulty with respect to writing, unscrewing jars, cleaning his teeth, shaving and toileting.
32 Since February 2019, there has been less work at Voyager Screen Printing in Seaford and he would only work there approximately six hours a month. After such work decreased, he began working for his girlfriend’s father in his lawnmowing/gardening business – Mornington Peninsula Mowing and Garden Maintenance. He works approximately thirty hours a week in this job.
33 Aspects of this work are difficult because of the injury to the plaintiff’s left index finger. In particular, he finds Whipper-Snipping difficult in using his left index finger to hold the trigger. He now uses the Whipper Snipper in his right hand, with his right index finger using the trigger, which he finds awkward. Also, such activities involve weeding, and he tends to avoid using his left hand index finger so it is not rubbed or knocked.
34 The plaintiff also confirms that since his last affidavit, he has not been involved in any rock climbing or, indeed, resumed playing the guitar. In relation to the guitar, he notes that he had been playing a guitar for approximately three years prior to his injury, and this included approximately one year of having lessons, and he states that:
“I very much miss being able to play the guitar.”[13]
35 Although the plaintiff continues to use his home gym approximately two to three times a week, he is limited in what he can do. He confirms it is more difficult gripping bar bells and dumb bells and carrying out exercises with his left hand. He had also been a member of the Core24 Gym in Frankston South prior to his injury, but due to the restrictions he faced with his left hand as a consequence of the injury to his left index finger, he did not continue his membership with that gym after the injury.
36 The plaintiff continues to attend the Gateway Church at Seaford and remains as a youth leader. He notes that he remains restricted in the physical activities that he can carry out in that youth leader role and, in particular, has to protect his left index finger in playing ball games, with fear of it being knocked.
The affidavit of Jacob Massey-Chase
37 The plaintiff also relies on an affidavit of Jacob Massey-Chase, sworn on 2 August 2019.[14] In that affidavit, Mr Massey-Chase deposes that he is a twenty-one-year-old (born in October 1997) young man, who is employed by Voyager Screen Printing as a casual worker, and also by the Gateway Church Australia on a part-time basis.
38 Mr Massey-Chase is completing a Bachelor of Ministry course on a part-time basis during the night, although some semesters, he says, are full time. He came to know the plaintiff as a neighbour, having met him a couple of times at a youth group through the Church, and became closer friends in approximately 2013-2014.
39 In early 2014, he describes that he and the plaintiff would spend almost every night together and they still have a close relationship.
40 Both he and the plaintiff were youth leaders for two years, and as such were involved in rough-and-tough games organised through the Church, and used to hang out after school playing X-box and games, skateboarding, rock climbing occasionally, and did a couple of hands-on jobs before.
41 He then deposes:
(a) that he and the plaintiff, prior to the injury, worked out together at the plaintiff’s home gym and Core 24 but the plaintiff “does not do the same gym exercises any more as he cannot hold the weights”;[15]
(b) that he and the plaintiff used to go rock climbing approximately once per month but the plaintiff cannot do any rock climbing anymore because of the finger injury. (The deponent notes that the plaintiff may have attempted to go rock climbing after the injury but could not do it);
(c) following the injury, the plaintiff was unable to do “a lot of the things that he could do prior to the injury”. The deponent refers to things like playing videogames which he was not able to do now as he was unable to use the triggers; however, he notes that the plaintiff is able to use his other fingers to play videogames and uses his hand differently. Furthermore, he has had to change the way the plaintiff ate and hold things for sports, how he played the drums and how long he stays in pools and how involved he was at games;
(d) after the injury, the plaintiff was not able to eat things, such as a burger, with his fingers and he would have to use a fork. In particular, he describes the plaintiff now eating a burger with his left index finger poking out, and notes that the plaintiff “always has the finger poking out”;[16]
(e) the plaintiff has tried on a few occasions to do more labour jobs but on most occasions has had to give up because of the pain caused by his finger;
(f) the deponent got the plaintiff the job at the screen printers and notes that the plaintiff is unable to work on the screen printing tools as it involves pushing ink through and he cannot do this due to his finger. He also notes that the plaintiff has tried to do the other part of the job, which is graphic designing, and although he gives it “a crack”, he cannot do a lot and the plaintiff’s finger would get tired;
(g) the plaintiff’s typing is also slower. He also, from his observation, cleans with his finger pointed up or uses his non-dominant hand. He has tried a few times to use the hand press machine but is unable to do anything as he cannot apply pressure to his finger.
42 Mr Massey-Chase concludes his affidavit by stating:
“Caleb is a positive guy and does not complain. However he does open up to me and says that it is very frustrating. At the beginning of his injury, Caleb was sad for about a year and a half. However, his injury caused him to dive into his faith a little more, which helped him to feel a sense of worth that was taken away from him after the accident.”[17]
The medical evidence relied on by the Plaintiff
43 The plaintiff relies on a plain x-ray of his left finger performed on 6 January 2016.[18] The radiologist reports her findings to be a soft tissue injury to the pulp of the tip of the left index finger, with no acute bone or joint abnormalities. The plaintiff also relies on a report from The Alfred hospital setting out details of the surgery undertaken on 6 January 2016, referred to as a “left index finger pulp amputation”.
44 The plaintiff also relies on medical reports from general practitioners situated at Hill Medical Services.
45 Initially, I refer to the report of Dr A Rankin dated 4 August 2017[19] wherein she notes that the plaintiff first consulted with her on 8 March 2017 seeking a WorkCover certificate of capacity. The plaintiff had given a history of sustaining injury to his left index finger resulting in pulp amputation while at work as a landscaper on 6 January 2017. In particular, the plaintiff reported that an excavator bucket dropped onto his left index finger, resulting in the injury.
46 Dr Rankin notes that the plaintiff was managed at The Alfred hospital following his injury, and underwent surgery to his left index finger, and that since then, the plaintiff has undergone one session with a hand therapist. At the date of her report, Dr Rankin considered the condition of the plaintiff to have remained “stable” and notes that the plaintiff reports loss of sensation and loss of function of the left index finger distal to the distal interphalangeal joint. Dr Rankin notes that the plaintiff also reported pain on applying pressure to his left index finger and a marked loss of function of his dominant index finger.
47 On 4 August 2017, Dr Rankin referred the plaintiff to the hand specialist, Mr Stephen Tam.[20] As I have already recorded, the plaintiff has given evidence that he did not attend the appointment with Mr Tam due to personal problems he was having at that time.
48 The plaintiff also relies on two reports from Dr Carmen Yau, respectively, dated 5 March 2018 and 2 July 2019.[21]
49 Dr Yau reports that the plaintiff was her patient between 9 June 2017 to 29 June 2018 inclusive. She notes that she obtained the history from his early attendances – no doubt with Dr Rankin on 13 May 2016 and 8 March 2017.
50 In particular, Dr Yau, when queried as to the plaintiff’s ongoing pain impairment and disability, stated:
“Caleb is left hand dominant. Following the injury, he reported that he had loss of sensation and function of the left index finger distal to his distal interphalangeal joint. He also reported pain on applying pressure to his left index finger. He reports that he had to modify his way of writing so not to apply pressure on his left index finger. Mr Duffus also reports that he had learnt to modify his way of gripping and grasping objects in his left hand without using his left index finger. This would be consistent with the injury that was sustained by Mr Duffus on 6 January 2016.”[22]
51 When queried as to whether or not any impairment suffered by the plaintiff was “permanent and stable”, Dr Yau reported that the impairment was “stable”. She also noted that a plastic surgeon opinion would be warranted to determine whether this would be permanent as this is outside her area of expertise. She also notes there was a referral to a plastic surgeon on 4 August 2017 (that being Dr Tham) but the plaintiff did not go ahead with such examination.
52 Again, when queried about pain and suffering and or anxiety experienced, Dr Yau stated:
“Mr Duffus reports that he ... only experiences pain in his index finger when pressure is applied to that particular area or when it is knocked. He has good left hand strength and grip. He reported on a few occasions that while he was frustrated about the injury, he was coping mentally and emotionally with it and had found ways of doing and adapting tasks that would not cause pain on his finger. He started work at a screen printing company in November 2017 and was able to do work required with some modifications that did not involve the use of his left index finger. ... .”[23]
53 Dr Yau does note that she cannot comment on his level of impairment and or disability from June 2018 as she has not seen him since that date.
54 Further, Dr Yau considered it was likely that the plaintiff would need restrictions and terms of activities of employment that would require the use of his left index finger. In particular, he considered he was able to do work that would normally require the use of the left index finger if he was able to find ways to adapt to it.
55 Again, when queried about any consequences in relation to his social, domestic and or recreational activities, Dr Yau stated:
“In my opinion, I believe that Mr Duffus would be able to participate in social, domestic and/or recreational activities (in particular, fishing, indoor rock climbing, writing and typing) but may need to modify it in a way that would not aggravate any pain if he were still experiencing. I do not believe it would restrict him in doing these activities as such. He has demonstrated that he has been able to find a way to write and type without using his left index finger.... .”[24]
Medico-legal material relied on by the Plaintiff
56 The plaintiff relies on a report from the plastic and reconstructive surgeon, Mr Damon Thomas, who examined the plaintiff on 31 July 2019.[25]
57 At the time of the examination, the plaintiff complained of chronic pain in his left index finger, exacerbated by any activity or direct touch or pressure, hypersensitivity, reduced range of motion, difficulty manipulating objects, cold intolerance and the appearance of the finger. The plaintiff also informed Mr Thomas that although he did not return to work as a landscaper following the injury, he was now performing (that is, at the date of the examination) screen printing as a casual worker. The plaintiff asserted he undertakes what he considers to be full duties but has limitations due to his finger. He denies any past medical history to the finger and is on no medication.
58 The plaintiff also informed Mr Thomas that he does undertake gym work in particular, and has a reduced ability to use weights because of his finger, he used to be a keen rock climber but is unable to do this completely anymore and that he is a youth leader and has limitations with his capacity to undertake physical tasks during such work. He also complained of being limited in regard to domestic duties at home where he lives with his father.
59 Mr Thomas records that:
“Examination today reveals a scarred atrophic left index finger pulp with a degree of partial amputation due to loss of length. The pulp scar measures 20 x 15 mm. The scar is pale, firm and adherent to the underlying bone and there is some underlying nail deformity....
Sensory examination reveals absent two-point discrimination on the ulnar border over 40% of the terminal digit length and partial loss over the radial border 40% of the terminal length.”[26]
60 Dr Thomas thought that the amputation level to be at 5 per cent of the finger.
61 Ultimately, Dr Thomas diagnosed that the plaintiff has suffered a traumatic left index finger pulp amputation with attempted reattachment not being successful. The plaintiff has gone on to develop post-traumatic sequelae to the left index finger, with a partial amputation of the terminal segment, a scarred and atrophic pulp with loss of sensation, loss of dexterity and chronic pain and cold intolerance. Mr Thomas considered all these consequences to be as a result of the compensable injury. Ultimately, Mr Thomas stated that the impairment suffered by the plaintiff was permanent. In particular, he went on to state:
“Mr Duffus has chronic pain exacerbated by using the finger with a degree of hypersensitivity. He has globally reduced function of the left index finger and thereby hand which affects all aspects of his life with regards to limitations with employment, sports, hobbies and pastimes. He is concerned about the appearance of his finger but denies any psychological or anxiety-related issues....
Mr Duffus likes to go to the gym particularly to do weights. He has limitations with regards to this. He used to be a keen rock climber but he is unable to do this. He has reduced ability to undertake youth leading. Domestic tasks are limited due to the finger. With regards to work, he has reduced ability to write. He cannot type with the left index finger and he has reduced dexterity with the left hand. Social activities are in part affected by his reduced ability to undertake recreational tasks that he would like to, limiting his ability to participate in group activities.”[27]
62 The plaintiff also relies on a report from the rheumatologist, Dr John Findeisen, who examined the plaintiff on behalf of the defendant on 13 January 2017.[28]
63 Dr Findeisen obtained a history, in part, that the plaintiff had regained full movement of his left index finger but his pain had not resolved and symptoms have plateaued. In particular, the plaintiff described pain in the tip of his left index finger with any pressure to the area and as such, he avoids using his index finger. As an example, he now has to use a pen without using that finger. Any pressure to the digit produced a throbbing discomfort which lasts for several minutes afterwards.
64 Dr Findeisen also obtained a history the plaintiff takes no regular medication. Furthermore, Dr Findeisen obtained a history that the plaintiff had trialled an alternative trade – roof plumbing – but found this too difficult as he could not hold things properly due to his left index finger. At the time of the examination, he was working casually on weekends setting up jumping castles and was looking for permanent work during the week. Dr Findeisen also noted that the plaintiff liked to go to a gym but found it difficult holding weights in his left hand because of the left index finger. In normal day-to-day activity, he avoids using his index finger to hold anything.
65 Dr Findeisen records that examination revealed a well-healed small scar on the dorsal surface of the left hand 2 centimetres distal to the wrist. The left index finger was deformed distally, with significant pulp loss over the distal phalanx, and there was marked tenderness extending from the distal interphalangeal joint distally to the top of his finger. There was marked loss of pinprick sensation over the ulnar side of the left index finger on the flexor surface from the distal interphalangeal joint distally.
66 Ultimately, Dr Findeisen stated:
“Mr Duffus has sustained a significant injury to his left index finger, with, amputation of part of the distal phalanx which was repaired surgically. He has been left with chronic pain in the distal part of his index finger and as a result left hand function, which is his dominant hand, is significantly impaired.”[29]
67 It is also convenient to refer to the medico-legal material relied on by the defendant. Those acting for the defendant arranged for the plaintiff to be examined by the following:
(a) The plastic surgeon, Mr Thomas Robbins, on 12 February 2018;[30]
(b) The plastic and hand surgeon, Mr Murray J Stapleton, who examined the plaintiff on 1 March 2018.[31]
68 When examined by Mr Robbins, the plaintiff had just recently started part-time work, performing screen printing one day per week. When queried as to why he had not returned to work prior to that, the plaintiff noted there was no suitable employment for him, as he could not return to landscape gardening because pinching the tip of the index finger is painful.
69 The plaintiff confirmed that he was capable of carrying out activities of daily living and capable of driving. In particular, he informed Mr Robbins that he takes no medications – and in particular, no pain relievers, because he does not require them.
70 Examination of the left hand revealed that there was scouring at the distal pulp of the index finger consistent with the stated cause and stated time of occurrence. There was a diminished pulp which was not tender to touch or pressure when the patient is distracted. Mr Robbins noted that the plaintiff complained that he has no sensation over the scarred area. The plaintiff also complained of diminished sensation over the radial side of the distal phalanx for which, according to Mr Robbins, there was no evidence of any direct injury. There was a small one-centimetre scar on the dorsum of his left hand which, according to Mr Robbins, was not associated with any functional loss.
71 Mr Robbins was of the opinion that the plaintiff did have residual scarring and diminished pulp of his left dominant index finger associated with some loss of sensation on the ulnar side of his distal phalanx. He considered the injury was stabilised.
72 Mr Robbins also considered that the plaintiff’s current symptoms are partially due to the scarring and diminished pulp of the distal phalanx of the index finger but also there was a psychological overlay, allowing him to exaggerate his difficulties. Mr Robbins did not consider that the worker’s physical injury materially contributed to an incapacity for work, and he was not convinced there was any significant tenderness in the distal pulp of his index finger which, apart from some pulp loss, was otherwise normal, with a full range of flexion and extension.
73 Mr Robbins was of the view that the plaintiff was “perfectly capable” of returning to his pre-injury duties and hours, notwithstanding that he does have some functional impairment of that hand.
74 Mr Stapleton, who examined the plaintiff some seventeen days after Mr Robbins, also obtained the history that the plaintiff was now working as a screen printer and that most of the things he is “required to do at work he can manage”. In this respect, the plaintiff confirmed that there are a few things that he has learnt to do modifying, what would normally be the way that he performs the duties that are in front of him.
75 In particular, the plaintiff gave a history that there is no pain at rest with his left hand, but the pulp and tip of the finger is “tender”. The plaintiff has lost a slight amount of digital length, and the finger now is slightly parrot-beaked, which is very awkward for him when he puts the tip of the finger onto a flat surface.
76 The plaintiff has, according to him, no appreciable sensation across the pulp of his left index finger which makes it awkward to manipulate small objects. Given that this is his dominant hand, a small object now has to be gripped between the pulp of the thumb and pulp of his left middle finger. He tends to keep his left index finger away from any trauma when he grips an object, which explains why the power of his grip is slightly reduced because of the accident.
77 Mr Stapleton recorded that examination revealed a loss of the length of the left index finger of 0.5 centimetres. In particular, as noted, there is a slight parrot-beaking of the fingernail of his left finger and there is a 2-centimetre of total transverse sensory loss, in that he is unable to discern the difference between sharp and blunt, hot and cold, rough and smooth over the pulp of what remains of his left index finger. He has not lost any joint movement of his left index finger.
78 Mr Stapleton was of the opinion that the plaintiff had reached a maximum medical improvement and the only option is if the tenderness of the pulp of the left index finger remained or became an increasing problem, was to perform amputation at and including the distal interphalangeal joint.
79 Mr Stapleton considered that the plaintiff would experience intermittent symptoms, but there was no need for medication. In particular, Mr Stapleton was of the opinion the plaintiff should not suffer injury or harm by engaging now in occupational and daily living activities.
The cross-examination of the Plaintiff
80 Under examination, the plaintiff gave evidence that he has a home gymnasium which comprises of dumb bells, bar bells and a bench press, all of which were acquired at the end of 2014.
81 The plaintiff also confirmed that he was a member of Core 24 Gym from about the end of 2014 until the commencement of 2016, but has not been back to that gymnasium since the recovery from his surgery on his left index finger.
82 When queried by the Court why he has not gone back, the plaintiff stated:
A: “Because it was too painful for me to go to that gym and do that, so I figured I only had - I had my own equipment at home, so I might as well just trying using that, instead of spend money on a gym membership when I may - the chances are I won’t be able to use it that much.Q: When you say ‘too painful’ are you talking about something physically, you’re not talking about an emotional response?---
A: Yeah, no, physically, yep.
Q: Right, so just tell me what you mean by that?---
A: So when I use the equipment, when I’m gripping on with my hands, this finger (indicating), any pressure gets really painful, like it feels like a bee sting pain that I get. So as I grip and grab on to the equipment, I feel a lot of pain in that finger. So I try to push past that pain in order to workout. But I find that I can’t do as much at the gym because of it and my grip - my level of grip is - is a lot more difficult because of it.”[32]
83 The plaintiff confirmed that he “roughly” uses his own gym two to three times a week, and this involves lifting dumb bells in the range of 15 to 20 kilograms and about 40 to 50 kilograms on a barbell.
84 The plaintiff confirmed that he lifts the same weights in both hands but less repetitions with his left hand – about 8 to 10 in his right hand and about 6 in his left hand.
85 He would also bench press 40 to 50 kilograms, with six to ten repetitions. The plaintiff asserted that he lifts slightly less weights now than prior to the injury but accepted that he is capable of lifting 50 kilograms on a bench press, and the most he could lift prior to the injury was 60 kilograms.
86 Under cross-examination, the plaintiff confirmed that he gave up rock climbing after the occurrence of his injury and he believes that was ended in or about June or July 2016.
87 The plaintiff also confirmed that he had not sought any treatment from a doctor since June or July 2018 and, in particular, the plaintiff was taken to a reference from Dr Yau dated 29 June 2018 wherein it is recorded:
“Follows surgery consultation. Came for a WorkCover certificate. Doing fulltime work at screening place, enjoying it, plus finger not being affected much. Gets some pain during the cold, but otherwise okay. Always has it during wintertime. Manages okay. Doesn’t wear gloves.”[33]
88 The plaintiff accepted that he believed he told Dr Yau that at that time.
89 When it was put to the plaintiff that between 2017 and 2018, there had been an improvement in respect of the use of his left index finger, the plaintiff responded: “Not really”.[34]
90 When queried by the Court as to “why”, the following evidence was given:
“Because I still experience the same pain in that finger as I did back then, but for me I’ve decided to push past that pain and just tyring (sic) to focus on getting further in life and not seeing it as a burden as much as just focusing on the things that I can do, if that makes sense, Your Honour.”[35]
91 When it was put to the plaintiff that he was back at work doing landscaping work, the plaintiff responded “Just gardening”,[36] but accepted that that involves the use of a lawnmower, Whipper Snipper, digging, weeding and general gardening maintenance, and occasionally the lifting of bags of compost and soil. The plaintiff accepted that he was able to undertake these activities for the last six months or so.[37]
92 The plaintiff also gave evidence that he continues to maintain the screen printing job and which he occasionally undertakes. The reduction in work in the screen printing business was due to a “downturn” and his inability to do any screen printing as efficiently as Jacob Massey-Chase, with whom he has a partnership referred to as “Syion” which sells t-shirts. That business was commenced in 2017.
93 The plaintiff accepted that both prior to and after the accident, he has been involved with the Gateway Church, where he underwent a leadership course as part of his activities with the church. Such course involved him meeting with others on one Saturday per month, learning how to develop as a youth leader and how to be a good leader in the church environment and the home group environment.
94 The plaintiff’s role as a youth leader involves mentoring and team leading a group of young people which may involve attending camps such as Camp No Fear which involved his attendance in January 2019.
95 The plaintiff explained that he was a youth leader or cabin leader at the camp and led a group of Year 11 children for three days, and the activities involved lots of sports and messy fun games, together with a worship program at night.
96 The plaintiff was generally cross-examined whether he had a Facebook page – to which he has – and generally uses the Facebook Messenger rather than the Facebook “app”. He accepted that he had deleted some items at the beginning of 2019 relating to a past relationship.
97 The plaintiff gave evidence that as at January 2016, he was in a relationship, but such relationship ended in around April 2016.
98 In particular, the plaintiff gave evidence that that relationship produced a daughter, born in August 2016. After her birth, up until April 2019, the plaintiff had access to his daughter – not including overnight sleepovers – but for a few hours of any particular day. He accepted that such access visits commenced when she was a baby, which would have involved changing nappies, playing with her, attending to her needs, feeding and making her bottles et cetera, and generally maintaining her.
99 In about April 2019, his former partner and his daughter moved to Sydney. The plaintiff confirmed that he lived with his former partner up until April 2016, when they separated, which was, of course, prior to the birth of his daughter.
100 The plaintiff confirmed that he is left handed and that he had in his possession an acoustic guitar and an electric guitar, which are both for right-hand use, as he has always played guitar with his right hand.
101 The plaintiff informed the Court that he had made no effort to sell the guitars since his injury, although he held out no hope that he would be able to replay the guitars at some stage.
102 The plaintiff described how the actual strumming of a guitar is done with his right hand, and the left hand is used on the neck of the guitar. In particular, the following evidence was given:
Q: “All right, just tell me what the left hand has to do on the neck of the guitar?---A: Push down with you[r] fingers on the chords.
Q: When you say ‘push down’ would that normally involve using your damaged finger?---
A: Yes.
Q: And does it involve generally all you fingers?---
A: Yes.
Q: Okay. So, when you’re playing something - anything, I suppose, is if your right hand is strumming cords is your left hand being actively used at the same time?---
A: Yes.
Q: Or are there periods where the left hand’s not used at all?---
A: The majority of the time the left hand is on the cords.”[38]
103 The plaintiff gave evidence that the guitar lessons which he was undertaking ended in 2013, and between 2013 and the date of injury on 6 January 2016, he would play his guitar two to three times a week. Since the injury, he has attempted to play the guitar on these occasions: around May 2016 and six months later, in late 2016 and, on the last occasion, around mid 2018.
104 In answer to a question from the Court, the plaintiff said he had guitar lessons for about a year and on about a once-a-week basis. The plaintiff confirmed that when he did play the guitar leading up to his injury, it was for recreational use and he was never part of a band, nor was the guitar involved in church-related activities. It was just for his enjoyment.
105 The plaintiff confirmed that since his injury he has become involved with other musical instruments, including what he referred to as a “box drum”. The plaintiff described such instrument as follows:
A: “So it’s a little box which has got a - it’s a plywood box and you hit the front of it, and it make a (sic) acoustic drum noise.”HIS HONOUR:
Q: “Hit it with what?---
A: Your hands.
Q: Hand or hands?---
A: Hands.
Q: So, when you hit it with your left hand how’s that go?---
A: I avoid using this finger.
Q: What, so it’s like that?---
A: So yeah, so it’s awkward like that.
Q: What would happen if you used your left with that finger on it?---
A: I get that sharp pain in my finger and - and then it gets really numb and - and can end up aching for hours.”[39]
106 Counsel for the defendant put a series of still photographs taken off a Facebook page involving the plaintiff.[40] These include:
Q: “And you’re at the front of the band so to speak?---A: Yes, so to speak.
Q: And you’re leaning over, not a very clear picture, but you’re hitting the drug with both hands, aren’t you?---
A: Yes.”
HIS HONOUR:
Q: “You say you hit it with both hands, don’t you, what you assert is the left finger is - the index finger is kept out of the way?---
A: Yes.”[43]
107 The plaintiff gave evidence that the band is a young adult worship band which performs about once every three months.
108 When queried more about him attending camps, the plaintiff accepted, although not expressly being involved in sporting activities, there would have been outdoor activities like throwing a Frisbee around and potentially throwing a basketball around “and that sort of thing”. The plaintiff confirmed that there was a camp in 2018 as well as 2019, both of which he attended.
109 The plaintiff was also further referred to the following Facebook photographs:
• A photograph of the plaintiff lifting his daughter.[44] The plaintiff accepted that it was possible that the plaintiff was gripping his daughter in part with his left arm, which was under the armpit of his daughter.
• A photograph at Wilsons Promontory with a group of friends.[45] The plaintiff described the group going to Wilson’s Promontory for about two nights, during which time tents were pitched, for which he had the assistance of others. The plaintiff confirmed that he has also been camping since at Noojee, which involved tents.
• A photograph depicting a group which had been walking on a beach track.[46]
110 The plaintiff also accepted that his church activities involve pancake and movie nights – with the former held about once a year on Christmas Eve, whereas the movie nights and similar social activities may be once a week, and he attends such nights as much as he can.
111 Again, reference was made to various Facebook photographs:
• Two photographs involving the camping trip to Wilson’s Promontory, one of which involves playing cards inside a tent, and the second being on a hike.[47]
• A photograph depicting the plaintiff, his current partner and the plaintiff’s daughter on a slide and a playground.[48]
112 The plaintiff was cross-examined in relation to his friend, Mr Jacob Massey-Chase, and the plaintiff gave evidence that he sees him quite frequently – about two to three times a week – and that could involve going out to have a meal with him. In particular, the following evidence was given:
Q: “And so he’s observed you eating a burger?---A: Yes.
Q: And how would you describe eating a burger now?---
A: Just sort of try to avoid as best I can using that finger to grip the bun.
Q: And what about using your mobile phone, how would you say you use your mobile phone?---
A: I’m - I always hold it in my right hand.
Q: And what about your left hand, do you use your left hand with your phone?---
A: Yes, to steady it.
Q: And I suggest that you would use your left index finger to steady your phone?---
A: I - I use this finger instead.
Q: I see.”
HIS HONOUR:
Q: “When you do - you send texting and this type of thing, you say you hold your phone with your left hand and - - - ?---
A: Yeah.
Q: - - - rather than your index, you just - this, the middle finger, is it?---
A: Yes.
Q: And then your right hand, do you use the fingers there to do the texting?---
A: Yes, and the thumb of my left hand.”[49]
113 The plaintiff was shown about 28 minutes of video film encompassing various periods – on 2, 20 and 21 March 2018. The DVD of such video was tendered (exhibit “A”) and the surveillance report was also tendered.[50]
114 After the completion of the film, the following evidence was given:
MS TSIKARIS:Q: “Thanks, Mr Duffus, did you see yourself on that DVD?---
A: Yes.
Q: And did you see yourself grab you[r] rucksack with you[r] left, using your left index finger on 2 March 2018 at about 6.16?---
A: Yes.
Q: And I suggest that you didn’t have your left index finger extended but you used that finger to grab the rucksack, would you agree?---
A: Yes.
Q: Then on that same day you went to the church and after that you went to the McDonald’s, did you see yourself at the McDonald’s?---
A: Yes.
Q: And there was the self-serve screen that you’ve used, correct?---
A: Yep, yes.
Q: And did you see yourself use both you left hand and your right hand to place your order?---
A: Yes.
Q: And did you then see yourself seated eating your chips and you[r] burger?---
A: Yes.
Q: You certainly didn’t use a knife and fork to eat your burger, did you?---
A: No.
Q: And you were using your left hand to eat the chips?---
A: Yes.
Q: And at times you were also using your left index finger?---
A: Not for the chips, no.
Q: At times you used your left index finger to eat chips, I suggest to you?---
A: Potentially, I guess, yes.
Q: Not all of the time but at times, would you agree with me there, Mr Duffus, I beg your pardon?---
A: I’m - potentially, yes.”
HIS HONOUR:
Q: “I think it’s being put more than potentially, watching the film and you said it’s you - - -?---
A: Yeah.
Q: - - - and you saw, as we all saw you eating McDonald’s chips, do you say you used your left index finger when eating the chips, not all of the time but some of the times?---
A: Yes.”
MS TSIKARIS:
Q: “And when you grabbed the hamburger you grabbed it with both hands didn’t you, Mr Duffus?---
A: Yeah.
Q: And when you grabbed it with you left hand you used your left index finger to hold the burger, didn’t you?---
A: Yeah.
Q: And when you were holding you[r] phone you were using your left index finger to support the top left-hand corner of your phone whilst you were texting with your thumbs; that’s right, wasn’t it?---
A: Yes. Yeah.
Q: And there are times when you pinched your nose with your left index finger; correct?---
A: Yes, briefly, yes.
Q: Yes, and you rubbed your upper lip with your left index finger, didn’t you?---
A: Yes.
Q: Now, on 21 March 2018 you were holding your keys with your left hand, weren’t you?---
A: Yeah.
Q: And you still keep your keys in your left pocket, don’t you?---
A: I do.
Q: On that same day you were observed using your phone and holding your phone with both hands and using your left index finger to support the corner of the phone, weren’t you?---
A: Yes.
Q: And at one point you were eating with your right hand and had the phone in your left hand; correct?---
A: Yeah.
Q: And using your phone with your left hand; correct?---
A: Yeah, to sort of just rest it, yeah.
Q: Yes. You were able to eat with one hand and use the phone with the other hand; correct?---
A: Yeah.
Q: And there were times when you grabbed your role with both hands using your left index finger; correct?---
A: Yes.
Q: There were also times when you were holding you roll with your left index finger extended, but you were observed and you agree with that, Mr Duffus, that you were in fact holding the roll with your left index finger; correct?---
A: Yes.
Q: And you also, when you were driving with the steering wheel you were gripping the steering wheel with your left hand, including your left index finger; correct?---
A: Yes.”[51]
115 The plaintiff was also questioned, that when attending the medico-legal plastic surgeon, Mr Damon Thomas, the plaintiff gave no history to Mr Thomas that he was working as a gardener for thirty hours per week. The following evidence was given:
Q: “Did you tell him that at that stage you were also working as a gardener for 30 hours per week?---A: No.
Q: Why not?---
A: I’m not sure. It was a very quick visit.
Q: You did though tell him, and you agree you told him that you were doing full duties as a screen printer?---
A: Yes.
Q: But you gave no information about other activities which included the gardening activities to that doctor?---
A: No.”[52]
The re-examination of the Plaintiff
116 The plaintiff gave evidence that his partnership with Mr Jacob Massey-Chase, in respect of the screen-printing business called Syion, was a business carried on at home, and over the last year and a half, about twenty t-shirts had been sold.
117 When queried how many times the plaintiff had played the box drums at concerts, the plaintiff gave evidence “about 10 times”.[53] Furthermore, when queried about when at the No Fear Camp, he threw a Frisbee, and when queried with which hand he threw the Frisbee with, the plaintiff replied “My left hand”.[54] The plaintiff did state that if he was throwing a Frisbee with his left hand, he was holding his left index finger in the air.
118 When queried about the film showing him holding chips with his left hand, he was asked whether the left index finger was required to apply any pressure, to which the plaintiff stated “No”. [55]
119 The Court queried the plaintiff about the pain that he asserts he experiences. The following evidence was given:
HIS HONOUR:Q: “Just tell me, I just want you to explain to me, when as you say you apply pressure to that pulp of that finger what do you actually experience, and for how long?---
A: It’s a tingly sensation with a bit of - of a fair sharp pain. And so it depends on the pressure, but if it was a - a fair bit, then it can essentially last half an hour to an hour. So, if it was knocked or whacked or squeezed, quite intensely. But if it was like a - a short period of time, it depends on how much pressure. It could be like five to 10 minutes of that sharp pain.
Q: Now, the other thing I just want to be clear about. In the times that - or as you - sorry, I’ll start again. You’ve made it plain in your evidence that you attempt to avoid situations where the pulp is brought into contact with a surface. In the times when the pulp is not brought into contact with a surface are you experiencing any pain in the finger?---
A: Just a gentle throbbing pain.
Q: Is that there for what - frequent, how often?---
A: This whole time, so constantly.
Q: Okay. Now, the other thing I wanted to ask is this. As counsel - as you’ve admitted under cross-examination, you - and I think clearly enough, you were holding the hamburger with your left hand and part of your finger. That type of activity where there’s contact with a surface, leaving aside putting pressure, does that cause difficulties?---
A: Yes.
Q: In what way?---
A: Just more clumsy the way I - I hold things. Sorry, did you say besides the pain?
Q: No, just where it’s - the hamburger situation - - -?---
A: Yep.
Q: - - - you’ve made the point to you counsel, yes, my finger did touch the hamburger but there wasn’t any pressure. Touching the hamburger itself, I don’t - I’m just using the hamburger - - -?---
A: Yeah, yeah, yeah.
Q: What if anything does that cause?---
A: Just - just an awkward sensation in my - in my finger. So I’ll generally feel that.”[56]
120 The Court also enquired of the plaintiff in relation to his guitar use. When queried how he would describe his liking of guitar playing prior to ceasing it, the plaintiff stated “I love - loved playing guitar, I - yeah, I would get really into it and would practice as much as I could to get better with that”.[57]
121 Counsel for the plaintiff further questioned the plaintiff, and the following evidence was given:
Q: “We will just on that, I think in one of the photographs there there was someone in the band playing the guitar?---A: Yep.
Q: Is that something you would have liked to have done in the future?---
A: Absolutely, yes.
Q: And I think your evidence was you’d practice the guitar two to three times a week?---
A: Yep.
Q: How often do you practice the drum box?---
A: Usually when we had rehearsals for those bands, so - - -.”[58]
122 The plaintiff was also re-examined in relation to the film depicting him at the McDonald’s restaurant. It was suggested to him that he was using some type of implement in his right hand – something like a fork or spoon, to which the plaintiff answered “I think it was a spoon for my cappuccino”.[59]
123 When he was asked whether or not he would normally have used his dominant left hand, he answered “Yes”.[60]
Findings made in relation to the evidence
124 There is no issue that the plaintiff suffered an injury to the index finger of his left dominant hand during the course of his employment with the defendant on 6 January 2016. The nature of the injury was a partial amputation of the pulp of his left index finger.
125 Furthermore, the defendant, no doubt based on the available medical evidence, does not dispute that there is some permanent impairment and, indeed, some organic consequences of such impairment.
126 The critical issue is whether the plaintiff has discharged his onus to establish that, as a matter of probability, such finger injury is a “serious injury” within the meaning of the Act – that is to say, whether there has been a satisfaction of the “narrative test”.
127 Before making any findings of fact in relation to the consequences, I refer to the following principles enunciated in various Court of Appeal decisions, which are of some assistance in determining whether the injury is a “serious injury” within the meaning of the Act:
(a) as stated by the Court of Appeal (consisting of Osborn and Beach JJA) in Ellis Management Services Pty Ltd v Taylor:[61]
“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.[62]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.
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. Indeed the case for the appellant was opened to his Honour on this very basis, namely that this was ‘very much a range case’.”
(b) also, the Court of Appeal in Ellis, stated, at paragraph [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.”
(c) I also refer to the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[63] where Maxwell P set out various principles in evaluating the “pain and suffering consequences”. I take account of all those principles. In particular, I refer to paragraphs [14]-[15] under the heading “The disabling effect of pain”, wherein Maxwell P states:
“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.’[64]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].”[65]
128 Counsel for the defendant referred me to the Court of Appeal decision of Aburrow v Network Personnel Pty Ltd and WorkSafe Victoria,[66] which involved an appeal by a worker who was refused leave to bring common law proceedings for pain and suffering damages in respect to a crush injury to the tip of his right index finger, which required reconstructive surgery. Although I appreciate that the circumstances of that case have some similarities to the circumstances of the subject matter, obviously enough, each case turns on its own facts subject to relevant legal principles.
129 However, the Court of Appeal (consisting of Maxwell P and Tate JA), in Aburrow, on dismissing the appeal, stated:
“As is typically the case in serious injury proceedings, the judge was required to evaluate a large body of evidence, almost all of it in documentary form. In this case, the evidence comprised: multiple affidavits sworn by Mr Aburrow himself; his oral evidence under cross-examination; affidavits from his partner, his sister-in-law, a work colleague and a friend; and a large number of medical reports from practitioners engaged by the respective solicitors.”As Maxwell P suggested in Haden Engineering Pty Ltd v McKinnon[67] ... it is of assistance in reviewing a body of evidence like this — for the purpose of evaluating the ‘pain and suffering consequence’ of an injury — to distinguish between:
These are not, of course, rigidly separated categories. For example, evidence about the disabling effect of the pain may enable inferences to be drawn about the intensity and frequency of the pain, and vice versa. But the distinction remains important for the purposes of the pain and suffering assessment, as this appeal shows.The experience of pain as such
We deal first with Mr Aburrow’s experience of pain as such. The approach suggested in Haden,[68] and subsequently endorsed in Sutton v Laminex Group Pty Ltd,[69] was as follows
The experience of pain
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
...
As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.”[70]
(Footnote omitted).
130 Also in Aburrow, the Court of Appeal makes reference again to reinforce what was stated by Ashley JA in Dwyer v Calco Timbers Pty Ltd (No 2),[71] that:
“... impairment 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.”
131 Before making any findings of fact in relation to consequences suffered by the plaintiff in determining the critical issue as to whether or not he has suffered a “serious injury”, it is apposite to make findings on the credibility and reliability of the plaintiff.
132 Counsel for the defendant submitted that the credit of the plaintiff should be in issue. In particular, it was submitted that an inference could be drawn as to the lack of credit by essentially three matters:
• the way the plaintiff responded to questions during cross-examination either by not being forthcoming, particularly when shown the surveillance of him, and generally, taking a long time to answer questions about various activities;
• the plaintiff framed his affidavit in an unduly favourable way to support his case;
• that the histories given to various doctors were frequently inconsistent and indeed, on occasion, inconsistent with the evidence given by the plaintiff during the proceeding.
133 Reference was made to one particular history or indeed, lack of history given to the medico-legal specialist plastic and reconstructive surgeon, Mr Damon Thomas, who examined the plaintiff on 31 July 2019. As at that date, the plaintiff was also working approximately thirty hours per week as a gardener in the business of the father of his then girlfriend – that business being Mornington Peninsula Mowing and Garden Maintenance. Under cross-examination, the plaintiff agreed that such work involved using a lawnmower, a Whipper Snipper, digging and weeding and general garden maintenance and occasionally the lifting of bags of compost and soil.[72] The plaintiff agreed that he did not tell Mr Thomas about his work as a gardener, notwithstanding that he understood that his solicitors had sent him to Mr Thomas in preparation for this case.
134 Counsel for the plaintiff submitted, essentially, the plaintiff was a reliable witness and the Court should proceed and act on the basis of his sworn evidence.
135 After having the advantage of observing the plaintiff give his evidence, reading his affidavits and noting the various histories he gave to medical practitioners, I have come to the view that I doubt that the plaintiff set out to tell any lies during the course of his evidence. However, I have formed the view that he is overly focused on his finger injury, which causes him to exaggerate various aspects of his condition compared to what he has said in the past to doctors and what was viewed in the video material.
136 For example I refer to the history given to the reconstructive and plastic surgeon, Mr Murray Stapleton, who examined the plaintiff on 1 March 2018 on behalf of the defendant. He recorded that the plaintiff gave a history that there was no pain at rest with his left hand but the pulp and the tip of the finger is “tender”. Because of the pulp and tenderness at the tip of his finger, Mr Stapleton was of the view the plaintiff had no appreciable sensation across the pulp of his left index finger which makes it awkward to manipulate small objects.
137 That history is different to the history given to the Court when the plaintiff was queried by the Court that when the pulp is not brought into contact with a surface, is there any experience of pain, to which the plaintiff described having a constant gentle throbbing pain.
138 I make the following findings of fact:
Personal details of the Plaintiff
(a) The plaintiff is a twenty-two-year-old, born in April 1997, single man who attended Mornington Secondary College and completed Year 12 in 2014. The plaintiff is naturally left handed;
(b) The plaintiff was in a relationship until April 2016 and that relationship produced a daughter, born in August 2016. After her birth and up until April 2019, the plaintiff had access to his daughter (not including overnight access) but for a few hours each day, which did involve changing nappies, playing with her, attending to her needs, feeding and making her bottles and generally maintaining her. In April 2019, his former partner and daughter moved to Sydney. The plaintiff is in a new current relationship;
(c) In Year 11 at the Mornington Secondary College, he completed a Certificate II in Building and Construction at the Chisholm TAFE in Frankston and at that time, he enjoyed “carpentry work” and was hopeful of one day acquiring a trade and working out “hands on” work;
(d) At the end of the end of his schooling and in November 2014, he commenced work on a casual basis with the defendant and was working approximately three or four days a week over November and December 2014. At the commencement of 2015, he then worked as a labourer at Alameda Landscapes for approximately ten months and then returned to work with the defendant as a labourer on a casual basis “thinking about his future”. At the time of the injury, the plaintiff was not settled in any favoured or long-term employment.
(a) I find that on 6 January 2016, during the course of his employment with the defendant, a bucket of an excavator being offloaded by Nathan Ford dropped down onto his left hand, causing his left index finger to be caught. That finger was badly cut as a result of the incident, with most of the pulp part at the end of the finger coming away. He was treated with ice and then driven to Sandringham Hospital, and later, The Alfred hospital, where surgery was undertaken on his injured left index finger. There was an attempted skin graft which failed to take and the wound was left to heal of its own accord;
(b) The hospital described the injury to be a “soft tissue injury” to the pulp of the tip of the left index finger with no acute bone or joint abnormalities;[73]
(c) The plaintiff consulted Dr A Rankin on 8 March 2017 seeking a WorkCover certificate of capacity in respect to his left index finger, on 6 January 2017. Prior to that time, the plaintiff had been managed at The Alfred hospital for a month or so after his surgery and had undergone at least one session with a hand therapist;
(d) Dr Rankin sought an opinion from Mr Stephen Tham, a hand specialist, and a referral was prepared, dated 4 August 2017. The plaintiff never attended Mr Tham – because of “personal difficulties” (perhaps the break up with his partner) – and never sought any further referral;
(e) Dr Yau took over the treatment of the plaintiff in June 2017 and ceased such treatment in June 2018. She notes that the plaintiff has not re-attended since 29 June 2018;
(f) The plaintiff confirmed that he has not sought treatment from any doctor since June 2018, takes no type of medication in relation to the left hand injury and in particular, has not taken any medication for any purported pain symptoms over the last eighteen months or so.
The nature and extent of the injury
(a) I do find, consistent with the aforementioned hospital report, that the plaintiff suffered a soft tissue injury to the pulp of the tip of his left index finger. Furthermore, I also accept the contents of that report, that there were no acute bone or joint abnormalities;[74]
(b) I also find that based on the measurements undertaken by the plastic surgeon, Mr Damon Thomas, who examined the plaintiff on 31 July 2019, the pulp scar measures 20 x 15 millimetres and is pale, firm and adherent to the underlying bone and there is some underlying nail deformity. Furthermore, Mr Thomas confirms that there has been a partial amputation due to loss of length and in this respect, I also find, based on the measurement undertaken by the reconstructive and plastic surgeon, Mr Murray Stapleton, that the loss of length of the left index finger is 0.5 centimetres;
(c) As noted above, I find there are no joint abnormalities in the left index finger and in this respect, I refer again to the report of Mr Stapleton, who notes there is no loss of any joint movement in such finger and furthermore, neither the medico-legal consultant rheumatologist, Mr John Findeisen, who examined the plaintiff on 12 January 2017, nor the medico-legal hand, plastic and reconstructive surgeon, Mr Thomas Robbins, who examined the plaintiff on 12 February 2018, found any joint dysfunction;
(d) I also find, based on the consensus of medical opinion, the plaintiff has suffered a loss of sensation on the ulnar side of the distal phalanx of his left index finger. In support of such finding, I note the following:
• When examined by the medico-legal rheumatologist, Dr John Findeisen, on 12 January 2017, there was noted marked loss of pinprick sensation over the ulnar side of the left index finger on the flexor surface from the distal interphalangeal joint distally.
• When examined by the medico-legal hand, plastic and reconstructive surgeon, Mr Thomas Robbins, on 12 February 2018, he was of the opinion that the plaintiff had residual scarring and diminished pulp of his left dominant index finger associated with some loss of sensation on the ulnar side of his distal phalanx and that injury had stabilised.
It is to be noted that although the plaintiff complained of no sensation over the scarred area but also complained of diminished sensation over the radial aspect of the distal phalanx which Mr Robbins found unlikely given that there was no direct injury to that part of the finger. It is also to be noted that Mr Robbins, on examination, found that the left index finger of the plaintiff was not tender to touch or pressure when distracted.
(a) I do find that the plaintiff does suffer some degree of pain when the tip of his left index finger is struck or forcibly makes contact with some surface. Furthermore, I consider that such pain and/or discomfort would be short-lived. I also accept that because of the lack of sensation already described, he would have difficulty distinguishing between sharp and blunt objects and, hot and cold using his left index finger, and have some difficulty manipulating finer objects such as screws, and doing up buttons and similar activities;
(b) I consider the opinion of Mr Stapleton, a very experienced plastic and hand surgeon, to be apt. He states:
“He has no pain at rest with his left hand, but the pulp and the tip of the finger is tender. He has lost a slight amount of digital length and the fingernail is slightly parrot-beaked, which is very awkward for him when he puts the tip of the index finger onto a flat surface.He has no appreciable sensation across the pulp of his left index finger, which makes it awkward to manipulate small objects. It is his dominant hand and a small object now has to be gripped between the pulp of the thumb and the pulp of his left middle finger. He keeps his left index finger away from any trauma when he grips an object, which explains why the power of his grip is slightly reduced because of this accident.
He is now[75] working as a screen printer and most of the things he is required to do at work he can manage. He said there [are] a few things that he has learnt to do modifying what would normally be the way to perform the duties that are in front of him.”
Mr Stapleton considered that the plaintiff needed no medication, his symptoms are “intermittent” and he noted that his hobbies are gymnasium, rock climbing, construction drawing and designing, which he noted to be “his lifestyle interests out of the workplace”;
(c) I also refer to the evidence of his then treating general practitioner, Dr Carmen Yau, who last saw the plaintiff on 29 June 2018. In her report dated 2 July 2019, she states:
Mr Duffus reports that ... he only experiences pain in his index finger when pressure is applied to that particular area or when it is knocked. He has good left hand strength and grip. He reported on a few occasions that while he was frustrated about the injury, he was coping mentally and emotionally with it and had found ways of doing and adapting tasks that would not cause pain on his finger. He started work at a screen printing company in November 2017 and was able to do work required with some modifications that did not involve the use of his left index finger. ... .”[76]
Later in that report, Dr Yau stated:
“In my opinion, I believe that Mr Duffus would be able to participate in social, domestic and/or recreational activities (in particular, fishing, indoor rock climbing, writing and typing) but may need to modify it in a way that would not aggravate any pain if he were still experiencing. I do not believe it would restrict him in doing these activities as such. He has demonstrated that he has been able to find a way to write and type without using his left index finger.”[77]
There is inconsistency in the evidence as to whether there is any pain suffered by the plaintiff continually – that is to say, when the left index fingertip does not make contact with a surface – and also there is inconsistency about the length of any pain that the plaintiff may experience when the left index finger does get struck or hit a surface.
As I have just noted, the general practitioner obtained a history that there was no pain when the left hand was at rest. Such opinion is consistent with that recorded by Mr Stapleton, who noted that the plaintiff “has no pain at rest with his left hand”. However, Mr Damon Thomas obtained a history that the plaintiff complained of “chronic pain” in his left index finger, exacerbated with any activity or direct touch or pressure, hypersensitivity, reduced range of movement, difficulty manipulating objects, cold intolerance and the appearance of the finger.
Furthermore, as I have already recorded, the plaintiff, during re-examination, informed the Court that even when the pulp of the left index finger is not brought into contact with the surface, he does experience pain, which he described as having a “constant gentle throbbing pain”.
After a consideration of all of the evidence, I find that there is an element of exaggeration in the description of pain when the hand is not being used.
Furthermore, there is a difference in the histories as to how long any pain in his left index finger remains after the finger is struck or comes into contact with a surface. The plaintiff describes in his affidavit material the pain could last half-an-hour to an hour, or could be in the order of 5 to 10 minutes, depending on the pressure that the tip of the left finger experienced.
I refer to the report of Mr Findeisen, wherein he has recorded that the plaintiff stated:
“... Any pressure to the digit produces a throbbing discomfort which lasts for several minutes afterwards. ... .”[78]
However, in the report from Dr Yau dated 5 March 2018, it is stated:
“... He continues to have pain of his left finger tip if he applies pressure to that area, and [it] can at times last for up to a few hours. ... .”[79]
Again, taking all of the evidence into account, I consider that it is unlikely that the plaintiff would suffer pain for such a period of time – at least not on a regular basis – and not have at least over-the-counter medication to relieve such pain. On balance, I tend to the view this would be an exaggeration.
The effect of the injury on his employment pursuits
(a) I find that the plaintiff was off work for about four or five months after the occurrence of the injury and then, in approximately May 2016, he carried out three weeks of roof plumbing work for Paradigm Roofing, which mainly entailed putting on galvanised sheeting on rooves. The evidence of the plaintiff is that he ceased that work as a result of his injured left index finger which caused him trouble when handling screws and also using tools at that time. Furthermore, I find that in 2017, the plaintiff completed a ten-week Certificate II TAFE course in electrotechnology, and although passing such course, he found the practical part difficult due to handling nuts and bolts and tools;
(b) I also found that he then commenced work carrying out a graphic design internship in Mornington with Prolific Communications – a job he had obtained through a friend of his father. He was able to manage such work until the business closed about six months later and in October 2017, he commenced work as a screen printer at Voyager Screen Printing in Seaford where he worked 38 hours a week, during which time he earned $750 net per week, and he remained there until February of this year, when he commenced doing the gardening work for about 30 hours a week.
I refer to the evidence of the former treating doctor of the plaintiff, Dr Yau, who states, in a report dated 29 June 2018 in respect of an examination on that day, that he was doing full-time work screening and enjoying it, and his finger was not being affected much. When this was put to the plaintiff during cross-examination, he accepted that he believed that is what he told Dr Yau at that time.
Furthermore, since commencing work as a gardener in February 2019, he has been required to use a lawnmower, Whipper Snipper, perform digging, weeding and general gardening maintenance, and on occasion, lift bags of compost and soil. The plaintiff, under cross-examination, also accepted that he was able to undertake those activities subject to some modifications such as he finds using the Whipper Snipper difficult in using his left index finger to hold the trigger, and tends to use the Whipper Snipper in his right hand, and as to weeding, he tends to avoid using his left index finger so that it is not rubbed or knocked;
(c) I also find that the plaintiff is able to write with his left hand, making adjustment for his left index finger and can attend to finer work now using his thumb and little finger and can operate a computer and play video games, again, making adjustment for his left index finger.
The injury and the sporting, recreational and leisure activities of the Plaintiff
(a) In his affidavit material, the plaintiff asserts that as a result of his left index finger injury, he has been unable to play a guitar, feels unsafe when he has attempted to resume rock climbing, and has reduced his gym activity and his involvement in general sporting activities for fear that his left index finger would be knocked.
The plaintiff gave evidence that he owns an acoustic and an electric guitar, both of which he still has. He explained that the strumming of the guitar is actually done with his right hand, and the left hand is used on the neck of the guitar, with fingers pushing down on the chords. He gave evidence that he undertook guitar lessons for about a year once a week, ending in 2013, and thereafter, up to the date of injury, he would play his guitar two to three times a week. I accept that it is probable that there would be some difficulty playing the guitar;
(b) In relation to the rock climbing, this was done less frequently prior to his injury and although he has attempted to rock climb (up walls), he has felt uncomfortable given the state of his left index finger – although it is to be noted that both his general practitioner and Mr Stapleton considered him capable of doing such activity;
(c) In relation to the home gym, the plaintiff gave evidence that prior to the injury, he was a member of a commercial gym and also had a home gym. Since the injury, he has given up the membership of the commercial gym but has a home gym which he attends a few times each week and performs largely the same sort of activities with weights as he did prior to injury but with less repetitions.
It must also be borne in mind that the plaintiff, both before and after his injury, has been involved with the Gateway Church in Seaford, where he is currently a youth leader. As he notes, such activities involve a lot of sports such as basketball and football, which he sometimes involves himself in, although he notes that he is very protective of his left index finger. Furthermore, he notes that he plays other games, throwing Frisbees with his left hand;
(d) Also, the plaintiff has taken up playing what is referred to as a box drum, and indeed, plays in a band infrequently. The playing of the drum involves the use of both hands, and when queried as to how he goes about that, the plaintiff commented he avoids using the left index finger.
The effect of the injury and the Plaintiff’s loss of enjoyment of life
(a) The plaintiff made reference to difficulties he may have with the daughter from the broken relationship who now lives with her mother in Sydney. After the separation between the plaintiff and that partner, he accepted that he had the baby frequently for hours during a day (not overnight) and this involved changing nappies, preparing bottles and all general maintenance in relation to a baby;
(b) The Court was shown a large number of photographs from a Facebook page involving the plaintiff, taken after the advent of his injury. Such photographs involved camping activities, walking activities, mixing with friends, and involvement in a variety of activities, concerts and the like in his role as a youth leader with the church;
(c) In the context of his presentation, the video surveillance had some significance. Although appreciating that there seemingly were large periods of time where surveillance was sought to be undertaken, the video, largely showed the plaintiff and a number of friends driving to different places, and in particular, going to a restaurant where hamburgers were eaten and the plaintiff using his mobile phone.
(d) Curiously, in his affidavit sworn on 2 August 2019, Jacob Massey-Chase deposes, amongst other things, that when the plaintiff was eating a burger, he would use a fork and “always has the finger poking out”.
Following the viewing of such video, the plaintiff agreed with the following propositions when cross-examined:
• Grabbing his rucksack with his left hand using his index finger on 2 March 2018
• That his left index finger was not extended but rather was used to grab the rucksack
• When he went to a McDonalds, there was a self-serve screen which was used and that he used both his left and right hands to place the order
• He grabbed the hamburger with both hands and in particular, used his left index finger to hold the burger. He did not use a knife or fork.
• When he was holding his phone, he was using his left index finger to support the top left-hand corner of the phone while he was texting with his thumbs
• At times, he pinched his nose with his left index finger and rubbed his upper lip with his left index finger
• On 21 March 2018, he was holding his keys in his left hand and in particular, he agreed that he keeps his keys in his left pocket
• On 21 March 2018, he agreed that he was using his phone and holding his left index finger to support the corner of the phone
• At times, he grabbed his roll with both hands using his left index finger (there were also times when he was holding the roll with his left finger extended)
• When he was driving, he was holding the steering wheel with his left hand, including his left index finger.
139 Although acknowledging that finger injuries are difficult to assess and to make and evaluative judgment involving a synthesis of matters of fact and degree, I have come to the view based on all of the evidence and applying relevant legal principles, that the plaintiff has not discharged his onus in establishing that the injury, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being “more than significant or marked” and as being “at least very considerable”.
140 The application must be dismissed.
141 I will hear the parties on the question of costs.
- - -
1 The plaintiff tendered the following material:
– Affidavits of the plaintiff sworn on 12 December 2018 and 8 August 2019
– Affidavit of Jacob Massey-Chase sworn on 2 August 2019.
(All such material found at pages 6 to 20 of the Plaintiff’s Court Book (“PCB”)).
Exhibit 2
– X-ray of the left hand dated 6 January 2016 and operation report of same date.
(Found at pages 21 to 23 of the PCB).
Exhibit 3
– Reports of the treating general practitioner, Dr Andrea Rankin, dated 4 August 2017 (to Mr Stephen Tham) and to Shine Lawyers
– Reports of the further treating general practitioner, Dr Carmen Yau, dated 5 March 2018 and 2 July 2019.
(Such reports found at pages 24 to 30 of the PCB).
Exhibit 4
– Medico-legal report from the plastic surgeon, Mr Damon Thomas, dated 31 July 2019.
(See such report at found at pages 31 to 37 of the PCB).
Exhibit 5
– Report of the rheumatologist, Dr John Findeisen, dated 13 January 2017.
(Such report obtained by the defendant is found at pages 36 to 43 of the PCB).
(a) The defendant tendered the following material:
– DVD of surveillance footage dated 2 March, 20 March and 21 March 2018.
Exhibit “B”
– A report of the plastic surgeon, Mr Thomas Robbins, dated 15 February 2018
– A report of the plastic surgeon, Mr Murray Stapleton, dated 1 March 2018
(Such reports found at pages 8 to 25 of the Defendant’s Court Book (“DCB”).
Exhibit “C”
– Surveillance report
(Such report found at pages 26 to 52 of the DCB).
Exhibit “D”
– Standard Intelligence Report dated 4 June 2019
(Such report found at pages 53 to 90 of the DCB.
Exhibit “E”
– Facebook photographs
(Such material found at pages 91 to 126 of the DCB).
[1] Refer to exhibit “A”. See exhibit list attached to this document.
[3] See s1 of the Act and Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; (2005) 14 VR 622
[4] See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
[5] See s325(2)(b) and s325(2)(c) of the Act
[6] See s325(2)(h) of the Act
[7] See s325(2)(j) of the Act
[8] See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[36]
[10] Transcript (“T”) 6, Line (“L”) 12-24
[11] See exhibit 1 at pages 6-17 PCB
[12] See T8, L16-22
[13] See exhibit 1 at page 15 – paragraph 9
[14] See exhibit 1 at pages 18-20 PCB – During final addresses, counsel for the defendant objected to the admissibility of paragraphs [11] and [12] of the affidavit of Jacob Massey-Chase. After argument, I ruled that paragraph [12] would be struck out, as it not only expresses, effectively, an expert opinion, but also relies clearly on hearsay material.
[15] See exhibit 1 at page 19 PCB
[16] See exhibit 1 at page 19 PCB
[17] See exhibit 1 at page 20 PCB
[18] See exhibit 2 at page 21 PCB
[19] See exhibit 3 at page 26 PCB
[20] See letter – exhibit 2 at page 24 PCB
[21] See exhibit 2 at pages 27-30 PCB
[22] See exhibit 3 at page 28 PCB
[23] See exhibit 3 at page 29 PCB
[24] See exhibit 3 at page 30 PCB
[25] See exhibit 4 – his report dated 31 July 2019 – at pages 31-37 PCB
[26] See exhibit 4 at page 32 PCB
[27] See exhibit 3 at pages 33-34 PCB
[28] See report of same date – exhibit 5 – pages 38-42 PCB
[29] See exhibit 5 at page 40 PCB
[30] See report dated 15 February 2018 – exhibit “B” at pages 8-15 DCB
[31] See report of same date at pages 16-25 DCB
[32] T9, L27 – T10, L13
[33] T13, L11-16
[34] T15, L1
[35] T15, L2-7
[36] T15, L10
[37] T15, L8-18
[38] T22, L2-13
[39] T22, L19-29
[40] See exhibit “E”
[41] Exhibit “E” at page 22 PCB
[42] See exhibit “E” at page 126 PCB
[43] T23, L31 – T24, L6
[44] See exhibit “E” at page 118 DCB
[45] See exhibit “E” at page 119 DCB
[46] See exhibit “E” at page 120 DCB
[47] See exhibit “E” at page 72 DCB
[48] See exhibit “E” at page 105 DCB, a photograph situated on the central right of the page
[49] T14, L31 – T32, L1
[50] See exhibit “C” at pages 26-52 DCB
[51] T35, L22 – T37, L25
[52] T38, L14-20
[53] T58, L21
[54] T58, L24
[55] T59, L2
[56] T59, L3 – T60, L7
[57] T6 L13-15
[58] T60, L21-29
[59] T61, L20-21
[60] See generally T61, L3-23
[61] [2013] VSCA 326 at paragraphs [57]-[59]
[62] Reference was made by the Court to Humphries & Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 129
[63] [2010] VSCA 69; (2010) 31 VR 1
[64] Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [37]
[65] (Supra) at paragraph [25]
[67] (Supra)
[68] (Supra)
[70] Haden Engineering Pty Ltd v McKinnon (supra) at paragraphs [46]–[48]
[71] (Supra)
[72] T15, L8-18 generally
[73] See exhibit 2 at page 21 PCB
[74] Again, see exhibit 2, page 21 PCB
[75] That is, at the time of the examination on 1 March 2018
[76] See exhibit 3 at page 29 PCB
[77] See exhibit 3 at page 30 PCB
[78] See exhibit 5 at page 39 PCB
[79] See exhibit 3 at page 27 PCB
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