IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION 
SERIOUS INJURY LIST	Revised
Not Restricted
Suitable for Publication	
		
Case No. CI-22-04182

Jaxson Mahy	Plaintiff	
		
v		
		
Victorian Workcover Authority	Defendant	

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JUDGE:	Her Honour Judge Davis	
WHERE HELD:	Melbourne	
DATE OF HEARING:	7 September 2023	
DATE OF JUDGMENT:	26 October 2023	
CASE MAY BE CITED AS:	Mahy v VWA	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1629 		

REASONS FOR JUDGMENT
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Subject:	WORKPLACE ACCIDENT COMPENSATION
Catchwords: 	Serious injury – right hand injury – course of employment – pain and suffering
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
Cases Cited:	Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, Sutton v Laminex Group Pty Ltd [2011] VSCA 52, TTB SMS Pty Ltd v Reading [2020] VSCA 203, Bustos v Victorian WorkCover Authority [2021] VCC 1531, Jiwani v 7 Chefs Pty Ltd [2023] VCC 1127, Kaos v XL Premix Pty Ltd [2023] VCC 1229, Cardamone v Victorian WorkCover Authority [2023] VCC 1191, Sabo v George Weston Foods [2009] VSCA 242.
Judgment:	Leave granted to the plaintiff

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr G Coldwell
Mr G Smith	Maurice Blackburn	
			
For the Defendant	Ms V Katotas	IDP Lawyers	

HER HONOUR:

1	Mr Mahy applies under s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) for leave to issue common law proceedings for damages for pain and suffering only in respect of an injury to the right hand sustained on or about 13 August 2018 in the course of his employment with Construction Contract Labour Pty Ltd, a labour-hire company. He says that the pain and suffering consequences of that injury satisfies the narrative test for serious injury.  
2	The defendant says that in his affidavits, Mr Mahy has exaggerated the consequences of his impairment and that, in light of what has been retained by him (the capacity to work full time in a job he enjoys, albeit not as a carpenter; the capacity to train at the gym four to five times per week and lift weights and to pick up his children; the support of his wife in carrying out domestic duties; and the absence of further need for treatment), the pain and suffering sequelae of the permanent impairment of the right hand do not meet the narrative test for serious injury.  
3	Mr Mahy and his wife, Kellie Mahy, each gave evidence at the hearing. No further witnesses were called. The parties each tendered a court book and made oral submissions. I note that the defendant did not tender any expert reports nor take issue with the medical reports relied on by the plaintiff. In determining this application, I have had regard to all the evidence as well as the oral submissions of counsel and the cases referred to me.
4	Mr Mahy is 27 years old and right-handed. He is married with two children, one aged 3 years and one aged 9 months. From the age of 12, he played AFL football, and he continued to play occasionally in the senior reserves team up until his injury. From around the age of 16, he competed in body building. He began playing gridiron at State level at around the age of 18. He completed Year 12 and, from about 2013, began work as a labourer. He continued playing gridiron and AFL football. 
5	From about 2014 to 2017, he completed his carpentry apprenticeship with Taylor Made Carpentry. He loved being a carpenter, and in around 2017 when he was approximately 21 years old, he started his own carpentry business and worked under his own ABN. Later in 2017, worked as an employee carpenter for another company.
6	At the age of 20, he became involved in mixed martial arts (a combination of karate and ju-jitsu) and by 2017 he was competing in various amateur competitions. He intended to turn professional, but planned to keep working as a carpenter as his income from mixed martial arts would not be sufficient to support him. A year or two prior to his injury, he moved to acting as a sparring partner with professional mixed martial arts competitors. Mr Mahy trained five to seven days per week, on top of working as a carpenter. He was extremely fit and muscular, and weighed between 98 and 102 kgs. 
7	On or about 10 July 2018, he commenced employment as a carpenter with another business, working about 46 hours per week. In August 2018, he was assigned to work for on a construction site in Toorak. His job involved stripping formwork from the ceiling with co-workers. The sheets of ply would be permitted to fall to the ground, resulting in damage to pipes on the ground.  
8	On or about 13 August 2018, having been instructed to be careful not to break the pipes on the ground, he was pulling down a sheet of ply and held onto it to prevent it falling directly on the pipes. The sheet bounced off the ground and the reverberation caused Mr Mahy to sustain fractures to the fourth and fifth fingers of his right hand and dislocation of his right ring finger. Mr Mahy drove himself to hospital, and had x-rays confirming the fractures and the need for surgery. 
9	On 27 August 2018 he had surgery (open reduction and internal fixation of each of the fractured fingers using plate and screws). He returned to work but manual work aggravated his injury and so he was redeployed as an occupational health and safety officer. He attempted to resume mixed martial arts training but found that it aggravated his fingers. He underwent a further x-ray on 1 November 2018. He had hand therapy but continued to suffer symptoms of pain and restriction in those fingers, and had the plates and screws removed in further surgery on 29 August 2019.  In 2020, he again tried to return to mixed martial arts training for competition but was unable to continue fighting due to his hand injury. Further hand therapy was recommended to address soft tissue irritation.
10	His symptoms persisted and he was diagnosed with synovitis of the little finger after an ultrasound on 18 December 2019, and he was prescribed anti-inflammatories. He ceased hand therapy around late 2019 after his hand therapist advised him that that his fingers would not improve any further.
11	From 2021, he has worked with the CFMEU as a union official, visiting sites, inspecting safety practices, and taking notes. 
12	As a result of ceasing mixed martial arts training, he lost conditioning and put on approximately 35 kgs. He had bariatric surgery in December 2022 and has since lost approximately 33 kgs. Dr Adam Boyt, general and bariatric surgeon, provided a medico-legal report on 11 May 2023 to the effect that the need for the surgery was caused by the impact that the hand injury had on Mr Mahy’s level of activity, and that it is possible that he may require further bariatric surgery in future.
13	On 6 January 2022, Dr Doig assessed Mr Mahy as having suffered a whole person impairment of the right hand of 13%. On 13 January 2022, WorkCover accepted liability for Mr Mahy’s right hand injury and awarded an impairment benefit of $30,080 in respect of that injury. 
14	Dr Clayton Thomas and Mr Chehata both noted that in spite of a full range of movement in the affected fingers, Mr Mahy has suffered a permanent decrease in grip strength and fine motor skills, as well as ongoing tenderness of the two fingers. He suffers pain particularly in the cold and when he hits his hand against anything. Mr Chehata considered that his restrictions are permanent and that he has a guarded prognosis.  
15	Mr Mahy said that his wife is very supportive which has enabled him to resume doing general gym work at least a few times per week. However, he continues to suffer pain and restriction in the two affected fingers. Twice per day, up to six days per week, he takes two Panadol and two Nurofen tablets, and occasionally he takes Panadeine Forte. He has exhausted all treatment options. He loved both the social and sporting aspects of mixed martial arts but can no longer participate as a trainer, sparring partner or competitor, as each role involves hands-on fighting which aggravates his right-hand pain. In his oral evidence, he stated that writing, which he does most days at work, causes him pain and cramping in the right hand. He said that he avoids activities like lifting with his right hand. At the gym, he rarely lifts more than 10 kgs and focuses on working on his legs, upper body and cardio activities. At home, he cannot do cooking or mopping because these activities aggravate his right- hand pain.
16	At the hearing, he said that writing, which he does most days at work, causes him pain and cramping in the right hand. He said that he avoids activities like lifting with his right hand. 
17	He said that he loved working as a carpenter but agreed that he likes his current position and is able to keep fit by doing regular gym work. 
18	Mrs Mahy stated that if not for his hand injury, she would have continued to support Mr Mahy competing in mixed martial arts. 
Findings and reasons
19	I have considered the cases referred to me by counsel, and note that each case turns on its own particular facts. 
20	I found Mr Mahy to be a straightforward and understated witness. His evidence was consistent with the evidence of Mrs Mahy and the histories and findings of his treating and examining doctors. The weight of the medical evidence, which is uncontradicted, is to the effect that he will permanently suffer pain and disability in his right hand, being his dominant hand, with reduced grip strength. I accept his evidence as to the pain and suffering consequences of his permanent right-hand impairment. I accept that he has had to give up his career as a carpenter which he loved, and that he continues to suffer pain and restrictions on a daily basis at his new job because his hand pain is aggravated by writing, which he is required to do. I accept that due to the right-hand injury he has also had to give up his professional aspirations in his newfound passion for mixed martial arts, including competing himself and/or training other professionals to compete. I accept his evidence as to the amount of analgesic and anti-inflammatory medication (a total of 8 tablets per day) he takes almost daily. I accept his evidence that he tries to avoid lifting his dominant right hand, and has limited capacity to perform domestic tasks. I take particular note of his age and that fact that he will permanently suffer pain, restriction, loss of grip-strength and may require long-term use of analgesic and over the counter anti-inflammatory medication. 
21	Whilst I accept that he has retained the ability to maintain full-time, alternative employment, albeit with restrictions, on the authorities, this fact is not determinative against him in establishing the pain and suffering consequences of his injury in circumstances where he has had to give up his former occupation as a carpenter, which he greatly enjoyed. Similarly, in a relatively young man, the fact that he has been able to return to the gym does not diminish the loss of enjoyment of life resulting from his inability to further his competitive or training sporting aspirations in mixed martial arts. Finally, the length of time he will have to endure the painful consequences of the injury to his dominant hand, including the sensitivity to touch and cold, as an active father of young children, is a relevant consideration.
22	In all of the circumstances of this case, I consider that the pain and suffering consequences of his permanent right-hand impairment are more than considerable when compared with other cases in the range of permanent impairments.
Conclusion
23	Leave is granted to Mr Mahy to issue common law proceedings for the recovery of damages for pain and suffering only in respect of the injury to the right hand sustained on 13 August 2018 during the course of his employment with the defendant.
24	I reserve the question of costs.