IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List		

Case No. CI-22-05266

NATHAN ZYGMUNT	Plaintiff	
		
v		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	HER HONOUR JUDGE ENGLISH	
WHERE HELD:	Melbourne	
DATE OF HEARING:	2 August 2023	
DATE OF JUDGMENT:	23 August 2023	
CASE MAY BE CITED AS:	Zygmunt v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1445  		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords:	Damages – serious injury – disfigurement – scarring – pain and suffering
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013, s327
Cases Cited:	Humphries and Anor v Poljak [1992] 2 VR 129; Transport Accident Commission v Garcia [2015] VSCA 225; Baker v Transport Accident Commission [1997] 1 VR 662; Ingram v Ingram [1996] 2 VR 435
Judgment:	Leave granted to the plaintiff to bring proceedings under subparagraph (b) for pain and suffering

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr J Valiotis with
Ms N Hanna	Slater & Gordon Ltd	
			
For the Defendant	Mr S Smith KC with
Mr D Churilov	TG Legal & Technology Pty Ltd	

HER HONOUR:

Introduction
1	On 7 February 2020, the plaintiff, Mr Nathan Zygmunt suffered an injury at work.  He was working in the hoof room on his second day at Ralphs Meat Company when he received a burn to his left shin as a result of caustic soda spilling into his gumboot. 
2	His sister-in-law, a nurse, dressed the wound, and he went to see a doctor at the Goulburn River Group Practice who recommended he go to the Northern Hospital, which he did the same day. He had suffered a full thickness burn to his shin and had skin graft surgery which involved taking skin from a donor site on his left thigh and using it to treat the burn on his left shin. He was in hospital for around five days and developed a staphylococcus infection which necessitated further time in hospital. He was off work for approximately 6 to 8 weeks. 
3	This is a serious injury application pursuant to s335(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) by the plaintiff, in which he seeks leave of the Court to commence a common law proceeding pursuant to subparagraph (b) a permanent serious disfigurement, for pain and suffering.
4	The onus of proof is on the plaintiff. In Humphries and Anor v Poljak, the question whether an injury is a “serious injury”, considers, when regard is had to the consequences, can the injury, when judged by comparison with other cases in the range of possible impairments and losses, be fairly described as “at least very considerable” and certainly more than “significant” or “marked”? 
5	The issue is whether the pain and suffering consequences of the scar meets the threshold of being at least very considerable.
6	The defendant’s counsel raised the plaintiff’s credit as a real issue in this proceeding. Counsel submitted some of his evidence was inherently implausible and infected by a desire to conceal matters and overstate other matters. A significant issue in dispute bearing on his credit was whether the scar was the reason the plaintiff had ceased his Strongman activities. 
Background
7	The plaintiff is 25 years old. He was 22 years old when the injury occurred. In 2015, he completed his VCE and since 2018, he has worked as a labourer. Following the injury on 7 February 2020, he returned to work at Ralphs Meat Company in April 2020, until May 2021 when he commenced full-time employment with Sims Metal.
8	The plaintiff filed three affidavits, affirmed on 19 August 2022 (first affidavit), 11 April 2023 (second affidavit) and 21 July 2023 (third affidavit).
9	After the plaintiff was affirmed in the witness box, I viewed the scarring to the plaintiff’s left lower leg, together with counsel. I did not view the scar on his upper left thigh. The photos at pages 44 to 46 of the Plaintiff’s Court Book accurately represent his scar on the left shin as I saw it.
The plaintiff’s evidence
Appearance of the scar
10	In the plaintiff’s first affidavit he states:
 “The burn on my left shin and the donor site on my left thigh have both fully healed now. I have been left with an oval shaped scar on the front of my shin which is around 6cm at its widest point. It is discoloured and dented in from the surrounding skin, and is very obvious, even from a fair distance away.
 I am self-conscious about the way that the scarring looks, to the point that I avoid wearing shorts because I do not want people to see it. Some people, such as my grandmother, still do not know that I suffered the injury at all because I avoid wearing clothes around her that would make it obvious. I know that it would upset her.
 The scar on my thigh is somewhat fainter. It is square shaped and roughly 7cm across.”
11	In his third affidavit he states:
 “In particular, I continue to have two large scars on my left leg as a result of a work accident on 7 February 2020: one on my left shin (caused by the chemical burn), and one on my left thigh (which was the donor site).
 I hate the way the scars look, particularly the one on my left shin, which is especially obvious.
 In the past, when I used to wear shorts, strangers - particularly children – sometimes came up to me and asked what happened. This made me uncomfortable and self-conscious. I therefore rarely wear shorts nowadays, other than around the house and in the garden.
 The scar on my left shin is otherwise painless. Indeed, the whole area is numb, as the nerve endings were burned off by the chemicals.”
12	In re-examination, the plaintiff stated he hates the look of the scar, finds it disgusting, and stated, “I really, really hate looking at it.” 
Impact of the scar on Strongman activities
13	Strongman is a strength sport.
14	In his first affidavit the plaintiff stated:
 “Before the accident, I was a professional strongman. I trained four to five days per week, often for several hours, at the gym and at home where I also had a gym setup. I would train after work. I competed regularly, including in the statewide championship. On one occasion I was flown to China, all expenses paid, to compete in a competition there, which I won. 
 A lot of what you do as a strongman, both in training and competitions, involves lifting heavy items up off the floor, including weighted barbells. There is often contact with the front of your legs as you lift them.
 After the accident, I found that I could no longer do a deadlift without either scratching the scar on my shin, or being afraid of doing so. I had been warned by my treaters that I had to be very careful not to injure the burn site because I would not be able to feel any infection until it had become very severe. The area is generally numb, though I do get some itching and tingling from time to time.
The area bleeds easily, as I have found on a number of occasions when I have knocked it on something just walking around the house. I am very concerned about injuring the area further. 
There is no way to modify strongman activities to remove the risk of injuring the leg further. As such, I have had to give up on strongman competition, and I had to modify my training so much that it stopped being worthwhile and I eventually stopped doing it. 
 I started training and competing as a strongman in around 2015. It was my main recreational activity and source of fitness for years after that, until I suffered the injury. The loss of it is something that I regret deeply. I have not really been able to find anything to replace it, and I have become unfit and deconditioned as a result.”
15	In his second affidavit he refuted he had ceased his Strongman activities due to his back injury. He stated:
 “Back pain is pretty much part and parcel of being a professional strongman, where the weights lifted in competition are in excess of 200 kg.
 In order to be able to compete, I would have to train intensively four to five  days a week and would often experience back pain whilst doing so. Although part of my training was focused on building core strength, it was inevitable that lifting such heavy weights was tough on the body and, in particular, the back.
 Because back pain whilst weightlifting was so common, it didn’t occur to me to mention it in my first Affidavit.
 I would seek treatment from time to time for back pain, from my GP and from an osteopath in Broadford, and would do also do exercises and stretches recommended to me by both my osteopath and my coach. Occasionally, I would also have to take time out from training to give my back a rest.”
16	The plaintiff stated it was November 2020 when he strained his back. 
17	He stated:
 “I recall that in or about November 2020, when I was still trying to persevere with weight training, I strained my back. The pain was quite bad on that occasion and I had to take time off from training. I also recall undergoing an x-ray and a CT Scan of my back, although I don’t recall the dates of those investigations.
 My GP discussed the results of those scans with me and whilst I don’t recall the details as to what the scans showed, I certainly don’t recall my GP telling me I had to stop my strongman training because of the results obtained. I believe had my GP done so, I would have a clear recollection of that advice. 
 From memory, I managed that episode of pain by taking time off from weightlifting, seeing the osteopath, and doing exercises and stretches. Following a period of rest, I returned to training, gradually adding in movements and building up the weights again.
 Eventually however, despite my best efforts to continue with my training, I decided it was too risky to keep going due to my work related injury, for the reasons as set out at paragraphs 26 to 28 of my first Affidavit.
 I tried a number of things in an attempt to manage the burn site on my leg whilst training, including wearing a neoprene sleeve on my leg and modifying my lifting technique.
 However, nothing really worked and, in the end, I thought it safer to give up my strongman training altogether.”
18	In his third affidavit the plaintiff stated:
 “As I have noted in my previous affidavits, the scar on my left shin has also resulted in me giving up training for and competing in strongman competitions, something that was my primary recreational activity at the time of the accident.
 The problem was that the scar of my left shin effectively prevented from doing deadlifts which is probably the most important exercise you can do as a strongman. In particular, deadlifts require you to scrape a loaded – and usually dirty - barbell along your shins in order to lift it off the ground; and whilst I did not find this painful, because I had suffered from a serious MRSA infection during my initial recovery I became absolutely paranoid about reinjuring the scar site and getting a further infection. I understand that such an infection would likely be severe by the time it was discovered, given that the area is numb.
 I do not believe I have competed in a strongman competition since about November 2019.
 I do not believe I have trained with heavy weights since about May 2021.
 Since I ceased my strongman training, I believe I have lost 70% or so of my strength and muscle mass.
 I was contacted in June this year by Sean, the team leader that arranged competitors for the China strongman competition I competed in. Sean asked me to join and compete in China between 7 to 13 July 2023 of this year. I declined Sean’s invitation because I am no longer able to perform strongman training because of my work injury. This is a significant loss to me.”
19	The plaintiff was robustly cross-examined, and his credit was in issue.
20	Firstly, the defendant’s counsel put to the plaintiff his first report of feeling self-conscious about his scar was only mentioned in his third affidavit and therefore was not of importance to him. The plaintiff denied this.
21	Secondly, Counsel cross-examined the plaintiff about how often he wore shorts. In his third affidavit the plaintiff stated, “I therefore rarely wear shorts nowadays, other than around the house and in the garden.” The plaintiff conceded wearing shorts on 28 January 2023 on a 12-minute trip to the supermarket, although stated he would try not to wear shorts. Counsel submitted the plaintiff was not self-conscious or embarrassed about the scar because if he was, he would seek to conceal the deficit on any occasion he could. 
22	Thirdly, the plaintiff was extensively cross-examined about his Strongman activities. 
23	It was put to the plaintiff there was no medical evidence that scraping a barbell across his shin could lead to infection. The plaintiff agreed, noting he had contracted a multi-resistance bacterium in hospital and that a barbell is quite dirty.
24	He was also asked why he was pursing Jujutsu when it is an activity that includes a lot of holds and grapples with the legs. The plaintiff noted he did not proceed to the contact stage with the sport.
25	Further it was put to the plaintiff, who agreed, that he was applying to be a police officer which would also potentially involve body contact.
26	When asked about injuring his scar the plaintiff stated, “So during Strongman and coming back from the operation, everything was tapered off, and I was slowly building back up. I was slowly reintroducing the dead lift, and that’s when I started realising that it was scraping, and issues were happening.”  He said he started to do the ‘dead lift’ when he got clearance from the Northern Hospital in April 2020 to go back to work on light duties. When he went back into training, he slowly ramped up his weights and used a different technique called a sumo stance. This means the bar drags on the inside rather than the outside of the shin. He agreed he also increased incrementally the weights he was lifting. The plaintiff was then shown a photo from Instagram dated 14 April 2020, which shows him poised to deadlift 230kg, not using the sumo stance. The plaintiff explained, “I tested my one-rep max…that’s what that is, to further work out my program for the next following month.” He stated he also wanted to see how much strength he had lost following his hospitalisation. He stated he would have lifted that weight multiple times “because I was eager to try to lift more – heavier weight and heavier weight.”
27	The plaintiff stated in April 2020 when he tried the dead lift, the scar would have been 90% healed. He did Strongman training for a few months and then weight training until November 2020 when he had a significant back injury which a CT scan showed was a bulge making contact with nerve roots in his back. The medical advice was not to continue lifting weights or gym activities. The plaintiff’s evidence was his back continued to trouble him for a little while, and his back was good until he re-injured it moving house in December 2021. 
28	In re-examination, the plaintiff stated he stopped Strongman training in June or July 2020 because he could not dead lift anymore because of the skin graft. He stated, “It was scratching my skin graft, scraping my skin graft, and it was causing bleeding and obviously I was very concerned about getting a[n] infection that I wouldn’t feel.” He agreed he abandoned Strongman before his back injury. He also noted the scar was easily scratched in activities such as gardening.
Plaintiff’s medical evidence  
29	Dr Geetha Venkatram, the plaintiff’s General Practitioner prepared a report dated 15 March 2022. Dr Venkatram noted in terms of prognosis, the plaintiff has recovered reasonably well, but has permanent scarring and sensory loss on the burnt site. Dr Venkatram, notes no future treatment is required, unless infection occurs.
30	A medical certificate by physiotherapist, James Quijano certifies that as of 21 July 2023 the plaintiff has been functionally assessed and fits the requirements for operational police duty.
31	Dr Murray Stapleton, Plastic and Hand Surgeon, prepared a medico-legal report dated 29 September 2022. In terms of current status, Dr Stapleton stated:
 “The area of the skin graft over the front of his left leg has no superficial sensation and that is always a problem for him as it is in a very vulnerable position. There is slight tethering of the skin graft when he moves his ankle into hyperextension. Clearly the skin graft is obvious when viewed from across a room.
 Prior to the accident Nathan was a strongman competitor, but the skin-grafted area, which is tender, has encouraged him not to pursue that interest.
 The donor site from where the split skin was shaven is positioned on the upper inner aspect of his left thigh. That has settled. It is slightly more pigmented, but not a problem for him.
 His disfigurement is now stabilised.”
32	Dr Stapleton described the scar and donor site as follows:
 “The skin-grafted area is almost circular; it is 60 x 65 mm in dimension. The area on the inner aspect of his left thigh, from where the skin was shaven, extends over 70 x 75 mm; that area is slightly more pigmented.”
33	Dr Stapleton confirmed his diagnosis that the plaintiff has a full thickness burn from caustic soda on his left leg, consistent with his employment where the injury took place. In terms of consequences, he stated:
 “Nathan now keeps his left leg away from exposure to sunlight and, together with the tenderness of the area, his recreational activities have been affected and that should be regarded as a permanent problem.”
Defendant’s medical evidence
34	Mr Damon Thomas, Plastic and Reconstructive Surgeon prepared a medico-legal report dated 30 November 2021. 
35	Mr Thomas diagnosed the plaintiff as follows:
 “The overriding diagnosis here is that of a left pretibial chemical burn from caustic soda resulting in a full thickness burn of the skin measuring 60 x 65 mm in dimensions. This has required excision and split skin grafting. He has post burn issues with loss of sensation, a depressed scar with a degree of tethering present and loss of ability to undertake certain physical tasks and concerns about the appearance of the area and getting it reinjured.
 The prognosis moving forward is that I would expect his burn to be stable with no improvement or deterioration.
 Occupational role has some impact with regards to having to have the area protected and avoiding any direct contact. Any hot workplaces or potential for chemical contact on to the skin would be precluded.”
36	In describing the scar, Mr Thomas stated: 
 “There is absent hair growth in the skin graft. There is absent sweat gland function. There is variegated pigmentation…Overall, I would classify this as a class 1 Impairment. There are some direct effects on his activities of daily living, minimal treatment is required. I would attribute 8% whole person impairment score due to skin and scarring.”
37	The Medical Panel concluded the plaintiff suffered a class 1 impairment pursuant to table 2 and assessed a 7% whole person impairment “as although the scarring effects the performance of some activities of daily living, there is no treatment or intermittent treatment required.”
38	Mr Thomas Robbins, Hand, Plastic and Reconstructive Surgeon, prepared a medico-legal report dated 15 March 2023.
39	Mr Robbins described the scar and donor site as follows:
“On the upper and lateral part of his left leg he has a skin graft about 6 cm in diameter. The graft is slightly pigmented compared to the surrounding skin but it is stable and moves freely on the underlying soft tissues so that it gives way on tangential force (to an extent). He has an area on the lateral part of his left thigh of superficial scarring representing the skin graft donor site. This has faded to some extent and should continue to fade.” 
40	Mr Robbins’ opinion was that:
 “The skin graft donor site should fade to be virtually invisible. The graft on his lower leg is stable and mobile. There was a slightly increased vulnerability to trauma to the skin graft.”
41	Dr Armin Drnda, neurosurgeon, prepared a medico-legal report dated 14 May 2023.
42	From review of the CT scan on the plaintiff’s lumbar spine on 24 December 2020, Dr Drnda noted:
“The central disc prolapse, indenting theca and contacting S1 nerve roots was an acute event, which likely happened on 12 November 2020 (as per GP’s notes). This has further clinically progressed to at least nerve root irritation with consequential leg pain, as recorded by Dr Ayache on 4 July 2022. The radiological changes on the lumbosacral spine were much more pronounced that one would expect for a 23-year-old person.”
43	Dr Drnda went on to opine:
 “Mr Zygmunt stated that he stopped weightlifting because of interference with the grafted skin on his left shin. This may well be the case, but a much more likely reason for quitting is the degree of spinal damage at L5/S1 and probably to a lesser degree at levels above. In July 2022, he aggravated his condition by doing household work, which, one would assume, should be much easier than heavy weightlifting.”
Defendant’s submissions
44	Counsel for the defendant submitted the scar is in an area typically concealed from view, so is to be contrasted with a facial scar or hand scar which cannot be concealed. Further, the appearance of the scar and its position on the body mean it does not meet the threshold of being at least very considerable and more than significant or marked.
45	In terms of credit, counsel submitted some of the plaintiff’s evidence was inherently implausible. He concealed matters and overstated matters, for example, his description of his return to Strongman activities was belied by the Instagram photographs.
46	The plaintiff’s evidence about being self-conscious and suffering embarrassment is a “throwaway line in the third affidavit.” As to him wearing trousers, there is video footage of him wearing shorts when he visited the supermarket for 12 minutes, therefore his evidence of self-consciousness or embarrassment should be disregarded.
47	The Strongman activities are at the heart of the plaintiff’s case and following his surgery, in April 2020 he is deadlifting 230 kg. Counsel submitted it made no sense for the plaintiff to give Strongman activities away nine months later when the scar is more healed. It was submitted the only explanation that makes sense is in November 2020 he experienced a significant back injury, “It’s from that point that his engagement in weightlifting and Strongman activities diminishes.” Counsel submitted the irrefutable conclusion is that the scar did not inhibit his Strongman activities which he continued until his significant back injury.
48	There is no medical evidence to support the plaintiff’s purported fear and anxiety that he could scrape his scar and develop some infection and this fear is belied by him taking up Jujutsu, which is a physical contact sport.
49	If the impairment of the Strongman activities is not referrable to the scar, then the plaintiff’s case falls away as there is no real identifiable consequence to meet the serious injury test.
The plaintiff’s credit
50	The defendant’s counsel submitted the plaintiff’s report of self-consciousness and embarrassment was inconsequential as it was a “throwaway line in his third affidavit.” This is incorrect.  In the plaintiff’s first affidavit he stated: 
 “I am self-conscious about the way the scarring looks, to the point that I avoid wearing shorts because I do not want people to see it.”
51	The plaintiff’s credit was also questioned because he was filmed wearing shorts when he went to the supermarket. In his first affidavit he states he “avoid[s]” wearing shorts. In his third affidavit he states he “rarely” wears shorts other than around the house and in the garden. When asked why he wore shorts to the supermarket he stated he might have been on the way to visit his family, but that he tries to avoid it. On that occasion it was a short trip to the local Aldi with his partner. I am not of the view the visit in the middle of summer to a local Aldi by the plaintiff wearing shorts is inconsistent with his affidavits that he avoids or rarely wears shorts and I do not find his credit impugned.
52	Counsel for the defendant submitted the plaintiff was far from frank, honest and straightforward, and his evidence about his return to Strongman activities after his injury was belied by the Instagram photos showing him doing deadlifts of 230 kilograms.
53	The plaintiff disagreed with the proposition of dishonesty and that he was creating a false impression about restrictions in his ability to engage in Strongman.
54	I found the plaintiff to be a credible witness.  His answers were calm and consistent in the face of robust cross-examination. He came across as intelligent and genuine and did not seek to embellish or exaggerate his evidence. I accept his evidence and the contents of his affidavits.
55	I accept the plaintiff enthusiastically returned to Strongman training after his surgery which the Instagram photograph dated 14 April 2020 reflects. I accept the plaintiff’s evidence he ceased his Strongman activities after a few months because of his concern about injuring his scar by scratching or scraping it. 
56	I accept the plaintiff’s evidence the scar prevented him from doing dead lifts which required him to scrape the loaded barbell along his shins to lift it. In the context of having contracted a staphylococcus infection in hospital, l find his concern about reinjuring the site and getting a further infection was logical and justified. In his first affidavit he referred to being warned by his treaters to be very careful not to injure the burn site. Part of the reason being, that because the area is numb, he would not be able to feel any infection until it became severe. 
57	His evidence was he continued with weight training and in November 2020 he sustained his back injury. Whilst that might have contributed to the end of any hopes of Strongman activities, it is a coincidence of timing rather than a primary causal factor. The plaintiff was pictured on Instagram still doing weight training after sustaining his back injury.
58	The plaintiff’s evidence is prior to his work injury he was a professional Strongman and trained at the gym four to five days a week for several hours. He had a gym set up at home where he would train, and he competed regularly. I note Dr Stapleton stated that the plaintiff’s recreational activities have been affected by the scar and that will be a permanent problem. Mr Thomas noted the plaintiff has lost the ability to undertake certain physical tasks and stated the plaintiff had concerns about the appearance of the scar and getting it re-injured. The Medical Panel opinion also noted the scarring affects the performance of some activities of daily living. 
Evidence regarding disfigurement
59	Dr Venkatram noted no future treatment for the scar is required unless infection occurs, which goes some way to confirming the plaintiff’s concerns about injuring the site.
60	Dr Stapleton noted the scar has no superficial sensation and this is a problem as “it is in a very vulnerable position.” Dr Stapleton also noted the skin graft is almost circular 60 x 65 mm in dimension and “clearly the skin graft is obvious when viewed form across a room.”
61	Mr Thomas described the scar site as depressed with a degree of tethering. He also noted the absence of hair growth and sweat gland function and variegated pigmentation. 
62	Mr Robbins noted the graft site is “stable and mobile”, and that there is a slightly increased vulnerability to trauma to the skin graft.
63	In his first affidavit the plaintiff described himself as self-conscious about the way the scarring looks, and he avoids wearing shorts. In his third affidavit he states he “hate[s]” the way the scars look, particularly the one on his left shin which is especially obvious. 
Does the scar meet the test of being a permanent serious disfigurement?
64	Medical evidence has been led about the physical appearance and status of the scar, as well as the consequences of the scar on the plaintiff’s recreational activities and how the plaintiff feels about the scar, such as being self-conscious and hating it.
65	In Ingram v Ingram [1996] 2 VR 435 Charles J.A stated, “…whether a disfigurement amounts to “serious injury” requires consideration of the impact of such disfigurement upon the particular person” and that  “in every case other than a clear case of “serious injury” – plainly a subjective element is involved in the assessment.” In the same case Callaway J.A stated “…it would be an unusual case where it was appropriate to lead evidence of subjective response to disfigurement. I speak of “subjective response” to avoid the impression that the psychological dimension is irrelevant to the matter.”
66	In Baker v Transport Accident Commission & Anor [1997] 1 VR 662 Brooking JA held if he accepted the respondent’s submission that in considering whether the disfigurement was serious the court was confined to the physical characteristics of the scars, the age and possibly the sex of the applicant, the disfigurement was a ‘serious injury’ within the meaning of s 93(17) of the Transport Accident Act 1986 “having regard to the number of scars, their location, their size and their degree of obviousness.”
67	In Transport Accident Commission v Garcia [2015] VSCA 225 the Supreme Court of Appeal held “…a psychological consequence of permanent disfigurement may also be taken into account when assessing seriousness in a paragraph (b) case.”
68	The subjective evidence is the plaintiff described the scar as “disgusting” and that he hates it, and hates looking at it. I note section 325(2)(h) of the Act states that the psychological or psychiatric consequences of a physical injury may only be taken into account for paragraph (c) claims. That would appear to exclude consequences such as a concern about appearance or fear of risk of infection for a paragraph (b) claim. 
69	I note in Ingram v Ingram [1996] 2 VR 435 Charles J.A stated that in determining if scarring is serious, the tribunal must have proper regard to the consequences to the plaintiff of the disfigurement, and that in all but clear cases of serious injury there is a subjective element involved in the assessment.  
70	I have viewed the scar on the plaintiff’s left shin and refer to the plaintiff’s affidavits and his description of the consequences of scarring. 
71	The objective evidence is that the plaintiff has two scars, however the scar from the donor site on his left thigh, though large, is not very noticeable. That said, the two disfigurements can be put together.
72	The location of the scar on his lower left leg is that it is large and in a very prominent position on the front face of his shin just above the midpoint between his knee and ankle. The size of the scar is 60 x 65 mm. The scar is obvious, the regular ovoid shape makes its appearance very distinctive. Although the colour is similar to his leg skin tone, it is of a variegated pigment, which does not reduce its visual prominence. The scar is also indented giving the area a sunken appearance. 
73	Other objective evidence is that the scar is sensitive to the sun, and the plaintiff has to be careful to apply sunscreen. In his first affidavit he stated it bleeds easily and on a number of occasions he has knocked it on something just walking around the house. In evidence he stated he scraped it two or three months ago when gardening. This evidence suggests he will have to be forever vigilant about the site, and its vulnerability was confirmed in the medical evidence. 
74	In my view, the scar on his left shin is particularly obvious and prominent due to its position on the lower leg, size and distinctive ovoid shape. Dr Stapleton stated it was clearly obvious when viewed across a room and having viewed the scar I am of the view it would be obvious at an even greater distance.
75	Dr Stapleton stated it had reached the point of maximum medical improvement. There is no prospect for any type of surgical revision so the plaintiff will have this scar in its current form for the rest of his life. It is permanent and he is a very young man.
76	In my view this is a clear case of serious injury and I accept counsel for the plaintiff’s submission it is a gross disfigurement.
77	In light of this finding, I do not need to further consider subjective elements and other consequences particular to the plaintiff such as him avoiding wearing shorts and that his main recreational activity has been curtailed.
78	In my view, on the balance of probabilities, having seen the scar, taking into account the plaintiff’s evidence and the medical evidence, I find the scar is a permanent serious disfigurement and when judged by comparison with other cases in the range of possible impairments and losses, can be fairly described as at least very considerable and certainly more than significant or marked. 
79	I grant leave for the plaintiff to bring proceedings under subparagraph (b) for pain and suffering.
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