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

Case No. CI-23-06375

JOHN CURNOW	Plaintiff	
		
V		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	HER HONOUR JUDGE BOURKE 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	24 September 2024	
DATE OF JUDGMENT:	2 October 2024	
CASE MAY BE CITED AS:	Curnow v VWA	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1516		

REASONS FOR JUDGMENT 
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Subject:		ACCIDENT COMPENSATION
Catchwords: 	Serious injury application – impairment to the right hand/ middle, ring, and little fingers – pain and suffering only 
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)  
Cases Cited:	Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Dordev v Cowan & Ors [2006] VSCA 254
Judgment:		Leave granted to bring proceedings for damages for pain and suffering

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr A Saunders	Slater & Gordon	
			
For the Defendant	Ms C Kusiak	MinterEllison	

HER HONOUR:

1	This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff whilst working for Total Automotive Lilydale Pty Ltd (“the employer”) on 18 November 2019 (“the said date”).
2	The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3	The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act.  There, “serious injury” is defined relevantly as meaning:
“(a)	permanent serious impairment or loss of a body function.”
4	The body function relied upon in this case is the right hand/fingers.
5	Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6	The impairment of the body function must be permanent.
7	The plaintiff bears an overall burden of proof upon the balance of probabilities.
8	By s325(1)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9	Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.  
10	I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11	I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak and Haden Engineering Pty Ltd v McKinnon in reaching my conclusions.
12	The plaintiff relied upon three affidavits and was cross-examined.  In addition, he relied on affidavits sworn by his mother Heather Curnow and his partner Chloe Dajnko on 19 August 2024.  Both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.
13	The issues from the defendant’s perspective were range and credit.
14	The defendant accepted this is a young plaintiff who clearly has some symptoms in the middle and ring fingers of his dominant hand.  He is most likely precluded from dirt bike riding, and his ability to engage in water skiing and wakeboarding to the same level as prior to the incident is diminished.  However, it was submitted whilst his impairments are certainly not trivial, they cannot be described as at least very considerable once a comparison is made, not just of other impairments of the hand, but also types of physical impairment people suffered, including the brain, spine and large joints.
15	The plaintiff’s case was that he satisfies the statutory test, certainly having regard to the loss of his chief hobbies, the reduction in flexibility in the labour market, and also the daily pain he experiences.  
The plaintiff’s evidence   
16	The plaintiff is nearly 28, having been born in October 1997.  He currently lives with his partner, Chloe, and their 14-month-old daughter Harper.  He also has a three-year-old daughter, Maddison, from a previous relationship.  
17	After completing Year 10, he undertook a carpentry apprenticeship for a couple years, which he did not complete.  He then spent the next few years working as a construction and demolition labourer for various employers and agencies. 
18	On or about 1 July 2019, he commenced work with the employer, a business operated by Andrew Thompson.  At that stage, the plaintiff was already in a relationship with Mr Thompson’s daughter Chloe, and had earlier been doing some unpaid work for him. 
19	The plaintiff was employed full-time and mainly worked on demolitions, although he also did some rubbish removal work. 
20	On the said date, the plaintiff’s injury occurred while he was taking a load of TVs to the tip in the back of a small tip truck.  He understood the TVs had been loaded into the truck with a bobcat, but at the tip they had to be unloaded by hand. 
21	The first TV he attempted to lift off the back of the truck was very old, large, and heavy.  He wrapped his arms around it and dragged it towards him.  He was surprised by its weight, and as he attempted to lift it off the back of the truck, it struck something which caused the glass screen to shatter, causing lacerations to his middle, ring and little fingers on his right hand (“the incident”). 
Post incident treatment 
22	Following the incident, the plaintiff attended Maroondah Hospital where he was cleared of any fractures.  Later that day, he had surgery performed by Mr Raminder Dhillon at the Vermont Private Hospital, which involved: 
(a)	Debridement, washout, and closure of the little finger laceration; 
(b)	Repair of the middle finger radial digital nerve, ulnar digital nerve, radial digital artery, flexor digitorum superficialis tendon, and flexor profundus tendon; 
(c)	Repair of the ring finger radial digital nerve, ulnar digital nerve, radial digital artery, ulnar digital artery, flexor digitorum superficialis tendon, and flexor profundus tendon. 
23	He was discharged from hospital the following day and commenced hand therapy with Ms Diana Francis soon thereafter. 
24	The plaintiff first saw his current GP at Everybody Clinic at Chirnside Park on 3 December 2019.  Before then, he was seeing a GP in Mount Evelyn, but stopped going there because the doctor was too busy.  
25	The plaintiff was also sent to Dr Barry Slon, pain specialist, for pain management.
26	On or about 26 October 2020, the plaintiff had an ultrasound of his right middle finger, which he understood revealed thickening and tethering of the flexor superficialis tendon. 
27	Mr Dhillon operated again on 19 November 2020.  The plaintiff understood this procedure to have been a tenolysis and neurolysis of his right middle finger.  He subsequently had some further hand therapy with Ms Francis, last seeing her in August 2021. 
28	The next few months following the injury were stressful for the plaintiff, and he started to struggle with his mental health.  He was in pain and frustrated with being unable to work.  He was also unable to provide much assistance when his daughter Maddison was born in January 2020. 
29	He was having difficulty sleeping and was prescribed Melatonin. 
30	He was very distressed when his relationship with Chloe ended in or about February 2021.  After a suicide attempt the following month, he was hospitalised for a few days and was subsequently reviewed by the Crisis Assessment and Treatment Team. 
31	The plaintiff attempted suicide again in late March 2021 by driving his car into a pole.  His right hand was injured in the crash.  He was taken to Maroondah Hospital where he was cleared of any significant trauma, including to his right hand.  He did not disclose the crash as being deliberate as he did not want to be hospitalised again. 
32	Things remained acrimonious with Chloe, who obtained an intervention order against him. 
Pain and subsequent treatment 
33	As at June 2023, the plaintiff had constant pain and discomfort in his right middle and ring fingers.  There was widespread numbness in those fingers, which were also tight and stiff and difficult to move. 
34	These symptoms were aggravated by activity including prolonged gripping and repetitive tasks.  Such activity caused the plaintiff’s fingers to claw and the pain to worsen into a throbbing sensation.  He also developed tingling in the tips of his middle and ring fingers. 
35	He took Panadol or Nurofen to try and control these symptoms.  He was not otherwise having any active hand treatment. 
36	His sleep was okay but was occasionally broken if he rolled onto his right hand, so he tried to sleep with his right hand tucked in against his chest. 
37	He had become fearful of televisions and glass, and avoided handling either.
38	His mental health had otherwise been good since he had been back in sustained work.  He was no longer having any other treatment or taking any medication for his mental health. 
39	There has been no significant improvement in his symptoms in the past year.
40	As at August 2024, his fingers remain constantly painful, the pain fluctuating according to the weather and his level of activity. At its worst, the pain is excruciating and as bad a pain as he has ever experienced.  The pain is usually of a throbbing or aching sensation but as it escalates, the throb felt more like stabbing. This is also when his fingers start to claw.  Knocking or bumping the fingers can cause an excruciating increase in pain.
41	When the pain escalates it can take hours to settle and on occasion, such an escalation has lasted for up to about a week. 
42	There is also numbness and reduced sensation in the fingers and grip is reduced.
43	He still trues to control the pain with Panadol and Nurofen about every second or third day.  He usually takes two tablets of each at a time and might do so two to three times in a day when needed.  Two to three times a month, the pain gets so bad he needs to take stronger prescription medication which he has left over.  He has not had any active physical treatment or therapies for some time as he understands there is nothing further will be of any benefit.    
44	While the records from Everybody Clinic indicate the last time he saw a GP for his hand was 29 July 2021, he had seen his GP Dr Hoffman three months ago because he needed pain medication.  He was prescribed something stronger than Panadol or Nurofen, but he did not fill the prescription; he does not like taking medication because of his fear of addiction. He went to the doctor because he was in a lot of pain and he thought that medication would help, and then he “second-guessed” himself.
Work
45	In or about February 2020, the plaintiff returned to work with the employer on light duties and reduced hours.  He was eventually able to increase to full-time hours. However, his right hand remained painful, and he continued to have difficulty with lifting, gripping, and fine motor tasks like cutting.  There were days when he needed to leave work early.  He also continued to feel depressed and angry at his situation. 
46	He remained off work after the November 2020 operation.  He was advised that he might not be able to return to unrestricted labouring work and was looking for alternative employment. 
47	His mental health slowly improved and by May 2021 he was able to commence work as a truck driver, employed by Zoom Recruitment to drive for WM Waste Management.  He did casual work at WM Waste Management for a few months, thirty to forty hours a week.  However, this role involved manually handling bins which aggravated his right hand pain, and he continued to look for more suitable work.  
48	In or about August 2021, he obtained employment with Civall Solutions, performing civil earthworks work which involved labouring, truck driving and welding.  He worked 40 to 50 hours a week, about 40 per cent of which was labouring, including excavation work he had done casually before the incident.
49	He stuck with it for as long as possible, but by December 2022, he was unable to go on any longer because of the right-hand pain caused by the work.
50	He did not see his doctor about his hand when stopping work at the end of December 2022, “Because I was told pain management would be what I have to do and where it would go from here”.  Pain management involved Panadol and Nurofen.  He would get his partner to massage his hand after work and just rest it as much as he could when he was in pain.  There was no point, therefore, in seeing a doctor if he had pain.
51	He confirmed he left this job because of his hand.  He denied he left the job because of back pain.  
52	Straight after leaving Civall Solutions, he did some truck driving for Burdett’s for a few months before doing a short stint of truck and excavator driving for another employer.  He was probably working 40 to 50 hours a week on average.
53	In about April 2023, he commenced work as a foreman with a civil plumbing company, Triple Eight Plumbing.  He worked 40 hours a week, mainly on an excavating machine and occasional labouring.
54	As at June 2023, he was working in this role and earning more than he was prior to his injury.  Most of his time was spent sitting in a machine or supervising other workers, although he did some occasional labouring work such as pushing pipes.  When doing this task, he felt like a knife was being jammed into his fingers, following which they would throb painfully for up to the rest of the day. 
55	He missed working fulltime with his hands.  He liked working outside for long hours, and he would much rather be on the ground with the boys than sitting up in machine. 
56	Albeit most of his work was now off the tools and less enjoyable for him, he was worried about not being able to sustain it long-term into the future.  He was not sure what other work he could do as he did not finish school, he had no qualifications, and his work experience was mainly limited to labouring. 
57	His mental health was also badly affected by being out of work, and it scared him to think about what might happen if he could no longer find work because of his right-hand condition. 
58	He was trying to get on with things as best as he could, but there was no escaping the toll his injury had had on him.  It had taken some of his favourite activities away from him, and made every day of work a struggle. 
Current work capacity 
59	Because of the pain and dysfunction in his right middle and ring fingers, he is no longer capable of unrestricted labouring work.  
60	He is not able to cope with holding and using tools for breaking or digging due to the increased pain that prolonged gripping and repeated forceful impacts causes him.  He is also unable to use those fingers to repeatedly lift, grip, and carry heavy materials or other objects.  
61	For this reason, he is limited to work that is primarily machine operation and does not require him to do much in the way of labouring.  This limits his job options substantially, as a lot of machine operation roles require the operator to also do labouring tasks.  Furthermore, it means that when machine operation work is scarce, he is not able to go out and get a labouring or demolition job in the meantime to continue earning enough money to support his family. 
62	His work situation has therefore remained unstable.  He continued working for Triple Eight Plumbing until about November 2023, when he was told that they no longer had any machine operator work available for him.  He then worked for Anytrain Excavation until about March 2024, when he left because he was not receiving enough machine operator work. 
63	Since that time, he has been back working for Civall Solutions as a fulltime excavator operator.  Most of his time is spent operating the excavator, although he occasionally assists with laying pipes and shovelling.  He tries to modify how he lifts the pipes and holds the tools so that there is as little gripping as possible. However, these are strenuous tasks, and after about 10 minutes or so his right middle and ring fingers are usually in agony. 
64	After days on which he has had to do some labouring, the pain in his fingers is such that he is not able to provide much assistance at home.  The best he can do is take some medication and hope that the pain settles down overnight so that he can get up the next day and get through another day of work. 
65	He is not aware of any job as limited as the one he is currently doing from which he could earn enough money to support his family, so will therefore keep doing it for as long as he can.  However, he is concerned that he might be worn down by his pain and not able to go on with this work.  He is also worried about not being offered work on account of his limited labour capacity.  It scares him to think of what might become of him if he can no longer get work of this type.  He also misses being able to work physically and enjoy the experience of hard work without being in pain.
66	He agreed he had been pretty much consistently employed since May 2021, mostly full time.
Lifestyle consequences as at June 2023
67	As a result of his injury, the plaintiff had difficulty with tasks that involved lifting, gripping, pushing, and pulling.  He also had difficulty with fine motor tasks and anything repetitive. 
68	These functional limitations were a significant impediment, especially as he is right-hand dominant.  They significantly impacted his domestic and recreational activities. 
69	Peeling and chopping vegetables was now difficult and painful for him.  He also had difficulty lifting shopping bags in his right hand and with hauling his wheelie bins upstairs. 
70	He had purchased a woodchipper because he had difficulty chopping wood. 
71	He also had difficulty using garden tools such as the whipper snipper, pressure hose chainsaw.  He found it hard to grip garden tools for prolonged periods and to use their triggers, and for this reason, he did not do as much work in the garden as he used to.  When he worked in the garden, he had to break up the jobs rather than doing them all at once.  
72	Recreationally, his main interests pre-injury were riding motor bikes and water sports including water skiing, wakeboarding, and jet skiing.  He owned a dirt bike and jet ski and did these activities on a regular basis at his family’s holiday house at Bonnie Doon.  He also enjoyed dirt bike riding when away camping with friends. 
73	However, because of his right finger injuries, he no longer went dirt bike riding.  He tried once in 2022 and could not grip the handlebar properly with his right hand. He was unable to handle the bike safely and was afraid of having an accident. 
74	His difficulty with prolonged and forceful gripping had also prevented him from returning to water skiing and wakeboarding.  He sold his jet ski for the same reason. 
75	Since leaving school, he had lived by the mantra of “work hard and play hard”.  Dirt bike riding and water sports were what made a hard week’s work worthwhile, and it upset him greatly that he was no longer able to enjoy these activities the way he used to. 
76	He was also worried that he would not be able to do these things and to participate in sports and other physical activities with his daughter Maddison as she got older. For example, he would have liked to kick the footy with her, but catching a ball was now too painful for him.  Because of his injury, he missed out on picking her up when she was born, and it distressed him to think of all the activities he will miss doing with her in the future. 
Current lifestyle consequences
77	His sleep is still disrupted, and his lifestyle also remains impaired.  He has not ridden a dirt bike, or been jet skiing, water skiing, or wakeboarding. He still goes camping on the Murray River with Chloe and with friends, but spends most of his time sitting by the fire.  Setting up camp takes longer now, which he finds a bit embarrassing.  He tries to use his left hand to winch open the camper, but there have been a few occasions when he has asked Chloe to help him with it.  He also collects a bit of firewood, but generally needs his friends to gather the larger logs.
78	He has sat in a boat and sometimes does a bit of fishing.  However, this usually just involves sitting on the bank and holding a reel with a hook in the water.  He does this mainly so that he and Harper can have the experience of fishing together. 
79	In his third affidavit sworn on 24 September 2024, the plaintiff updated the situation regarding his hobbies.
80	Before the incident, he rode his dirt bike every second weekend or so in the colder months, either at Bonnie Doon or when camping.  Ordinarily, he would ride all day, both days, even in the wet.  He spent as much time on the bike as possible. 
81	He has not been able to ride since the incident.  He tried using a ‘fatter’ grip to see how he would go with his pain, but it did not work.  He lasted probably five minutes, probably a year ago.
82	He agreed he would not be doing as much dirt bike riding now, because he has to look after Harper. 
83	Before his injury, he went up to Bonnie Doon most weekends in the warmer months, and for at least two weeks over Christmas and New Year's.  He would spend most of nearly every day on the water waterskiing, wakeboarding, and jet skiing.  Again, however, he has not been able to do those activities since the incident.
84	Having been shown the film taken on 24 January 2021 (approximately 24 seconds in duration), the plaintiff described what was shown as ‘attempting water sports’ doing wakeboarding.  This involved standing on a little board and being towed behind a boat. 
85	Since the incident, he thought he had attempted wakeboarding once or twice.  He used a modified grip Diana Francis had recommended, trying to see if he could still do any wakeboarding or water sports.  However, he still struggled and was in a lot of pain after doing so.
86	On the occasion when filmed, he had one go, came off, and then got back on the board and went back to where he started.  Until he saw the film, he did not remember having attempted wakeboarding since the incident.  
87	Wakeboarding is much easier for hm than water skiing, because he can use a lot more of his left hand than his right.  He can hook the grip into his left hand, avoiding his bad hand.
88	He used to go wakeboarding with just family and friends.  He could not remember that day.  Even in the film, he was struggling to hold on: “you can see me constantly letting going”.  He agreed he was shown maintaining a grip with his right hand.  The film showed he was struggling because “I’m trying to grip it like all hell – sorry, wrong way, trying to grip on and try my hardest.  But you can see I’m struggling”.  He was not strong enough to hold on with just his left, but when asked why at one time he was holding the grip just with his right, he was “not too sure.”
89	He maintained he was “attempting,” and this was an unsuccessful attempt at water sports.  A successful attempt would be “Jumping, doing all the stuff I used to do, going across the whole wake”.  He used to be able to jump on the board from side to side.  He could not remember if he did so that day, but there was a possibility he tried.  
90	He is certain he has not been out on the board since that day.  Before his injury, he was able to do jumps, flips, going from one side to the other doing ‘360s’ and other vigorous activities on the board. Before the incident, he was able to spend much longer on the water wake boarding.
91	Since the incident, he had also tried to ride a road bike, but could not manage that either.  He rode a road bike at Calder Park about five months ago.  He went to see if he could ride and paid a day fee of $550.  He had to stop after an hour because of hand pain.
92	Since the incident, he has also done some four-wheel driving, but finds it hard and painful to grip the steering wheel while driving over rough or rocky ground.  Therefore, he does less four-wheel driving than he would like, and is limited to tracks that are relatively smooth.
93	He still likes getting away, but it is hard watching his friends have fun riding dirt bikes and getting out on the water when he is not able to do so with them.  He misses doing those activities which were a big part of his life and identity.  He is also disappointed that he is not going to be able to share these activities with Chloe and his daughters. 
94	He also misses working on cars which he did a lot prior to his injury and enjoyed immensely.  Mechanical work has always been pretty easy for him, and he liked being able to make something work or go better. He liked working on his cars and his friends’ cars, and found satisfaction in the small jobs as much as he did from an engine rebuild.  He also enjoyed car culture, and liked attending car meets and races.  
95	However, he no longer works on cars as much as he used to, because of his difficulty holding tools and using his right hand for tasks such as tightening and loosening nuts and bolts.  He also wishes to avoid knocking his fingers when doing mechanic work, either when a tool slips or when working in a confined space, because of the strong pain it causes.  Additionally, he now has difficulty lifting the heavier car parts. 
96	In order to save some money, he still does some servicing and maintenance on his cars.  However, this is far more basic than what he used to be able to do and invariably causes a worsening of his pain.  At times, he has asked a friend to assist him with some work, which is not something he would have done before his injuries. 
97	His injuries are also impairing his ability to care for and interact with Harper.  He wants to be able to change her, dress her, and bathe her, but doing so is difficult because of the trouble he has using his right hand for fine motor tasks.  For these reasons, Chloe does most of the caring for Harper, even when he is at home, which makes him feel terrible and a bit like a dead beat.  As Harper gets bigger, even holding and carrying her for an extended time is becoming increasingly difficult for him because of his finger pain.  He also has trouble playing with Harper.  
98	He tries to assist with making dinner, but peeling and chopping vegetables is difficult and painful.  He does what he can to help, but meal preparation and domestic chores are other tasks that fall largely to Chloe.
Lower back condition
99	As well as his right hand condition, he also has a lower back condition which causes him occasional episodes of pain.  In or about September 2022, he had a lumbar MRI. 
100	He has needed medication and the occasional day off work during an episode of pain.  However, he is otherwise unlimited by his lower back condition, and does not think that it would limit him from labouring work or from enjoying activities such as dirt bike riding, water sports, or motor mechanics. It would not impact his ability to care for Harper or do domestic chores.
101	The plaintiff was cross examined about a number of attendances with his GP for back pain. 
102	It was accurate as his GP recorded on 8 September 2022, the plaintiff hurt his back moving around some heavy boxes at his parents’ place and then at work, having had a pipe placed on his shoulders.  He agreed his back pain was then so bad he could not work.  He saw a physiotherapist.  At that time, he was taking Nurofen up to six or seven times a day for his back.  He thought he would have had about two days off work at that stage.
103	He disagreed he had ongoing back pain for years.  The only other time he had a sore back was just a “once off”.  He had seen a physio in 2016.
104	The plaintiff had a phone attendance on his GP 12 September 2022 in which he complained of back pain, and she advised him to rest and not lift anything heavy. 
105	He agreed as was the case when he attended the GP in mid-2022, he made no mention of any problem with his fingers and did not see his GP for this issue in late 2022.  He was still sure the only reason he left work at the end of 2022 was his hand/fingers.  His back did not stop him working. 
106	In July 2023, he had some groin pain when lifting a winch weighing about 20kg which he was installing on his car in case his car got bogged when he went camping.  
107	He did have finger symptoms when he saw his GP in July 2023.  His description of constant pain, discomfort and restrictions deposed to in his affidavit sworn 13 days earlier was accurate.  He disagreed that his failure to mention his right hand to his doctor that day was inconsistent with the pain he had deposed to in his affidavit.  It was consistent because he was in pain.  
108	He had told his GP about his hand many times, and “it is the same thing every time.”  The GP said to deal with the pain, “Like when I speak to my doctor about pain, he will say you’ve got to just deal with the pain, pain meds, and rest it”.  He had mentioned hand pain to his GP since July 2021.  He got confused saying he had not.  His GP asks him about it every time he attends, asks him how he is doing.  
109	He then said he mentioned his fingers most of the time to the doctor.  He denied he was making it up as he gave this evidence.
110	The 24 October 2023 entry of “right flank extremely bad back pain” was just a once off.  He thought he might have gone to the GP about two or three times because of back pain and never had any time off work.
111	He then agreed he saw his GP at Mt Evelyn in September 2015 for back pain, but disagreed it was of long duration as the GP reported.
112	In re-examination, the plaintiff confirmed he fully recovered from these episodes of back pain and did not miss time off work.
113	In general terms, his back is now good.  
Lay evidence
Heather Curnow
114	The plaintiff’s mother, Heather Curnow, 56, swore an affidavit on 19 August 2024.  She is self-employed in a small payroll business. 
115	She confirmed the plaintiff was not a good student, having difficulty maintaining attention and focus, resulting in behavioural issues which she and her husband now know was because of his attention deficit hyperactivity disorder (“ADHD”). 
116	The plaintiff was good with his hands and from a very young age, she observed him enjoying tinkering with and building things.  As he got older, he was provided with his own shed. 
117	In addition to his building projects, the plaintiff became obsessed with cars, and spent a lot of time working on his and his friends’ cars.  He also got into car racing, but appeared to get the most satisfaction from having tools in his hands and his head under the bonnet. 
118	The family owned a cabin at Bonnie Doon, and of her two sons, the plaintiff was the one who appeared to most enjoy spending time there.  He spent most of his time there on the water, either fishing from a tinnie or wakeboarding and water skiing.   
119	She has seen a very considerable change in him since his injury.  Prior thereto, he was a kid who leapt at the chance to be physical, but he now presents like someone with physical limitations.  On occasions, she has asked him to help her open a jar or help with food preparation at home, and he has told her that he cannot do so because of the pain in his fingers. 
120	Rather than occupy his attention by working with his hands out in the shed or on the cars, she has seen him spending a lot of time on his phone, which is a real change for him.  
121	Following the plaintiff’s injury, he was no longer spending as much time at Bonnie Doon.  As he had been the one who got the most use out of the cabin, his lack of use was one of the reasons that she and her husband decided to sell it, and to also sell the boat. 
122	Because of his injuries and the pain in his fingers, the plaintiff is no longer able to do much in the way of manual labouring, such as shovelling.  
123	It was difficult for the plaintiff to confront these limitations at such a young age.  She worries that he will struggle to connect to and interact with his children unless he can find some form of physical activity to do with them. 
124	The plaintiff is so disappointed at not being able to do the things he used to enjoy.  It is clear to her that the plaintiff continues to suffer ongoing pain and consequences as a result of the incident.
Chloe Dajnko
125	The plaintiff’s partner, Chloe Dajnko, 24, also swore an affidavit on 19 August 2024.  She has known him for about the last decade, having gone to the same high school for a while.  Outside of school, they were in the same friendship circle and shared an interest in cars.  
126	Before the incident, she knew him to be very energetic and to always be on the go.  He was very hands on, and never missed an opportunity to get his head under the bonnet of his car or anyone else’s.  If ever anyone needed assistance with their car, herself included, the plaintiff was always the first to offer some assistance.
127	On a few occasions, she went to Bonnie Doon with the plaintiff and some other friends.  She also recalls him being very active setting up the camp site.
128	She lost touch with the plaintiff for a few years from prior to his injury.  They re-connected in 2021, and eventually started living together in about April 2022.  They have a daughter, Harper, who is now 14 months old, and who Chloe cares for fulltime. 
129	Once she started seeing the plaintiff again regularly, it became obvious to her that his injury had changed him from the person she had known previously.  He now struggled with tasks that he would have had no trouble with before, like helping her painting her room, and holding shopping bags in his right hand. 
130	The plaintiff was no longer spending much, if any, time working on cars, and he was no longer riding his dirt bike. 
131	At night, the plaintiff slept with his right hand tucked away, and she needed to be careful to not knock it because of the pain that doing so would cause him. 
132	It now takes the plaintiff a lot longer to do tasks than it used to, and afterwards she can usually tell that he is in pain.  This is the case not just with respect to working on their cars, but for other straightforward maintenance tasks or chores as well.  Sometimes he tells her that his hand is sore or that it is killing him, but even when he says nothing, she can tell it is painful from the way he guards his right hand, his heightened agitation, and his use of medication. 
133	Once his pain is elevated, he does not seem able to do much else for the rest of the day. 
134	The plaintiff tries to help her with the housework, food preparation, and caring for Harper, but he appears very limited in his ability to do so.
135	They still go away camping as a family, but when they do so, the plaintiff does not appear to be as happy or to enjoy himself as much as he used to.   He does not go dirt bike or minibike riding with his friends.  He will sometimes sit on a boat, but most of the time when people are water-skiing or jet skiing he will just sit on the shore and watch. 
136	It takes longer for the plaintiff to set up their campsite than it does for their friends, and there have been occasions when he has asked her to winch open their camper.  This is something she finds very heavy and difficult to do.
137	When he gets home from work on cold days, his right hand is often white in colour and ice cold to the touch.  He often says that his right hand is painful, and she often sees him take medication.  She sees him massaging his right hand with his left, and at times she will massage his right hand for him.
138	The plaintiff has told her that he is always in pain and that the pain never stops. He often says that it would be better if his fingers were cut off.
139	It is upsetting to see him like this and how affected he has been by his injury and his inability to do things with Harper and enjoy the things he used to.  He was such an active and energetic person, and so full of life, but now he appears to be living in fear of his pain.
Plaintiff’s medical evidence 
140	After the incident, the plaintiff initially attended Maroondah Hospital.  He was then referred to Dr Dhillon at Vermont Private, who operated on 18 November 2019 to repair the severed tendons and nerves on the right hand.
141	As Dr Dhillon reported, the plaintiff sustained the following injuries to his fingers:
(a)	right index finger laceration;
(b)	right middle finger laceration with complete division of radial and ulnar digital nerves and radial digital artery, requiring microsurgical repair.  The flexor tendons were injured (FDS radial slip and FDP tendon) both requiring repair;
(c)	right ring finger laceration with the division of the radial and ulnar digital nerves and radial and ulnar digital arteries all requiring microsurgical repair.  The FDP tendon and the A4 pulley was also lacerated, requiring repair.
142	Twelve months after the incident, in November 2020, Dr Dhillon operated again performing a flexor tenolysis to free up the flexor tendons from surrounding scar tissue to improve the plaintiff’s range of movement.  
Plaintiff’s medico legal
Mr Damon Thomas, plastic and reconstructive surgeon  
143	Mr Thomas saw the plaintiff in January 2023.
144	At that stage, issues were of right hand loss of sensation, reduced range of motion, reduction in strength and generalised pain in the hand, especially with anything physical or repetitive, cold intolerance and overall global reduction in hand function.
145	Mr Thomas noted the plaintiff had to leave his job in demolition due to difficulty using his right hand and now worked as a truck driver.  He could no longer participate in a range of sports and hobbies and found domestic tasks challenging.
146	Middle finger sensory examination revealed complete absent two-point discrimination at 15 millimetres and therefore absent sensation over the ulnar border 100 per cent of the length of the digit, partial loss of two-point discrimination of 100 per cent over the radial border in that the plaintiff had absent two-point discrimination at 5 millimetres and intact at 15 millimetres.  
147	Right finger sensory examination revealed complete absent two-point discrimination at 15 millimetres and therefore absent sensation over the ulnar border of 100 per cent of the length of the digit, partial loss of two-point discrimination of 100 per cent over the radial border and the plaintiff had absent two point discrimination at the 5 millimetres and intact at 15 millimetres.
148	The overriding diagnosis was of volar zone 2 lacerations to the right middle and ring fingers, with the division of flexor digitorum superficialis and flexor digitorum profundus to the middle and ring finger, and division of the distal nerves of the middle finger, radial and ulnar ring finger, and radial and ulnar.  
149	The plaintiff had post traumatic issues with pain, reduced range of motion due to flexor tethering, joint adhesions and sensory loss due to nerve sensory damage.
150	Mr Thomas expected the injury to be relatively stable.
151	He noted the plaintiff’s occupation was affected, in that his chosen job was that of a right hand dominant demolition worker, who had to cease work due to inability to undertake his tasks.  The plaintiff had transitioned to working as a truck driver which he could undertake, but with limitations.  
Dr Murray Stapleton, plastic and hand surgeon  
152	On examination on 24 July 2024, the plaintiff’s pain was constant, worse on cold mornings or if he attempted to grip.  The power of his grip was very much reduced, so he was now unable to comfortably hold a motorbike accelerator, and any gripping of objects was now a problem.  
153	The next problem was a lack of sensation.  To the distal half of the middle and ring fingers there was no sensation and to the proximal half the sensation was diminished.  Fine manipulative movements were a problem, such that if the plaintiff was gripping something, he has to look to see what power he has generated to hold the object in his right hand.
154	On examination, the index finger and thumb were ingrained, indicating the plaintiff was not using, nor was he able to use sufficiently, the injured fingers of his right hand.  The scars from the surgery were tender and the plaintiff was careful not to bump them. 
155	The terminal part of 50 percent of both the injured fingers had no appreciable sensation and there was very much a reduced sensation over the proximal part of both fingers.  There was restricted movement of the right and middle fingers.
156	The diagnosis was deep laceration, tendon and nerve damage to those fingers and a superficial laceration to the right little finger.
157	The plaintiff has reached maximum medical improvement.
158	Dr Stapleton thought the plaintiff’s capacity for employment had been profoundly affected for obvious reasons, given he had been a labourer all his life and the injury was to his dominant hand.  The restrictions required are those he applies to himself; that is, he is unable to perform effectively, efficiently, or repetitively fine manipulative movements.  He is now employed by a different company to the one that employed him when he was injured.
159	The plaintiff’s condition would not materially change for the rest of his life.  He would have to consider analgesics to minimise the pain.  The effect on his domestic and leisure activities would be a problem for him now permanently.  
Defendant’s medico legal
Mr Thomas Robbins, hand surgeon
160	The plaintiff was examined by Mr Robbins in March 2024.
161	The plaintiff told him that the second surgery on 19 November 2020 produced no improvement.  The plaintiff still complained of pain, but said “with the passage of time it is not so bad”.
162	The plaintiff was then taking one or two Panadol Forte in the morning, and Nurofen every second or third day.  
163	The plaintiff left his job in February 2021 when he split up with his then-partner, the daughter of the owner.  Since then, he had had a number of jobs driving trucks and operating excavators, but said there had been no change to his hand.  Since November 2020, he had eight jobs of a similar type.
164	The plaintiff advised that before the incident he went camping, wakeboarding, water skiing, jet skiing, and motorbike riding.  He claimed he could no longer pursue those hobbies because his hand hurt when attempting to pursue them, and afterwards.  He described it as throbbing pain and he had sold his motorbike.
165	The plaintiff had restricted flexion and extension of the injured fingers and pain when using them. He claimed difficulty peeling and chopping vegetables, changing nappies and when he tried to do building.  
166	The plaintiff’s hand had healed, but with functional impairment.  He had almost full extension of the injured middle and ring fingers.  The proximal interphalangeal joints of both fingers were 10 degrees short of full extension.
167	The proximal interphalangeal joint of the middle finger was 70 degrees short of full flexion.  The distal interphalangeal joint was 60 degrees short of full flexion.  The distal interphalangeal joint of the ring finger was 60 degrees short of full flexion.  
168	There was no two point discrimination and Mr Robbins doubted if there was protective sensation indicating no recovery of any nerve repair.
169	The findings were consistent with the stated cause.  The plaintiff’s hand was stable without prospect of further improvement.  He had a residual impairment. 
Film 
170	Footage taken on 24 January 2021 showed the plaintiff wakeboarding behind the back of a boat for approximately 24 seconds.  He is shown standing up on the board, holding the tether with his right hand, and then holding the tether with both hands when he hits the wake of the boat.  He then continues to wakeboard holding the tether with only his right hand. The footage ends while the plaintiff is still wakeboarding. 
Findings 
171	There is no dispute the plaintiff suffered a deep laceration and tendon and nerve damage to his right ring and middle finger, and a superficial laceration to his right little finger in the incident. These injuries have been treated surgically on two occasions. 
172	The defendant accepted there was some sensory disturbance and loss of range of motion.  Ultimately it was a question of range.  
Credit
173	As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:
“… 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.”
174	I am also mindful of what was said by Chernov JA in Dordev v Cowan & Ors, that in this type of case, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted.  It is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
175	The general thrust of the defendant’s attack on the plaintiff’s credit was that he had overstated the level and degree of his hand pain and restriction because of the lack of medical treatment and complaint and the plaintiff’s ability to continue full time manual work.
176	Further, it was submitted the plaintiff’s evidence about his pain has been inconsistent.  He changed his evidence as to whether he was complaining to his GP of hand pain when attending in 2022 and 2023 for his back, notes of which made no mention of hand complaints.  It was a matter for the Court what weight could be placed overall on the plaintiff’s complaints of pain and their chronicity.
177	There was some inconsistency with his evidence about medication, particularly his evidence that he recently went to his GP to get stronger prescription medication and did not take it.
178	The plaintiff’s credit was not seriously attacked in terms of the wakeboarding film save to say that he gave inconsistent evidence about the extent to which he had been able to resume wake boarding post injury.
179	Counsel for the plaintiff submitted the plaintiff’s credit was in no way undermined in cross-examination, including the film.
180	The plaintiff should be accepted as a witness of truth, who overall gave evidence in a frank and honest manner and without prevarication.  He made a number of declarations against interest, which ought to fortify the Court in findings as to credit, such as the number of hours he worked in various jobs and that he did not take the recently prescribed medication.  
181	Further, in critical areas, the plaintiff’s evidence was not seriously challenged.  It was not contended he was not unfit for unrestricted manual work or challenged as to the level of his preinjury recreational and social activities, which, it was submitted, was a critical aspect of the plaintiff’s application.  Nor was he, perhaps equally importantly, challenged as to his experience of daily pain at a level, which the Court may consider quite significant.
182	Further, the plaintiff’s evidence as to his level of pain and restriction was corroborated by lay witnesses.  
183	In my view, the plaintiff was a credible witness who has done his best to get on with his life after a frightening injury, continuing to work despite significant issues with his right hand pain and restricted movement. 
184	I accept his complaints of finger and hand pain, lack of sensation and restriction.  He has not sought further treatment because none has been suggested. On that basis, any failure to mention hand pain to his GP in more recent times is understandable.  
185	While he had deposed he had not gone wakeboarding since the incident, he was filmed doing so for only a very short time, over three years ago.  He was not shown doing any of the tricks he had enjoyed doing prior to injury; he was simply standing on the board behind the boat for 24 seconds.  I accept his evidence that he could not continue on the board that day because of his hand pain, despite being given a new grip by his hand therapist. 
Pain
186	In Haden Engineering v McKinnon, Maxwell P said the evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors). 
187	The plaintiff has consistently complained of constant pain in his fingers which varies according to the weather and his level of activity.  He recently deposed at its worst, the pain is excruciating and as bad a pain as he has ever experienced. It is usually of a throbbing or aching sensation but as it escalates, it feels more of a stabbing pain and his fingers start to claw.  Knocking or bumping the fingers can cause an excruciating increase in pain and he protects his hand to avoid this happening.  Escalations of pain can take up hours or up to a week to settle. There is also numbness and reduced sensation in the fingers and grip is reduced.
188	Counsel for the defendant submitted what the plaintiff said about his pain is inconsistent with what he does about it.
189	It was submitted that the intensity of the pain the plaintiff described when having a flare-up was completely at odds with his history to his GP of doing heavy lifting.  
190	The plaintiff’s description of pain is also at odds with the treatment regime, with only Panadol and Nurofen every couple of days.  
191	It was also submitted that the plaintiff’s description of pain was inconsistent with his evidence about a return to fairly consistent work, certainly of a physical nature, up to forty to fifty hours a week, without any suggestion of time off for flare-ups in his fingers.  
192	Counsel for the plaintiff submitted the plaintiff’s complaints of pain should be accepted and that he was not seriously cross-examined about his experience of pain.  
193	Given my findings as to the plaintiff’s credit, I accept he continues to suffer the level of hand pain, lack of sensation and restriction of movement in his fingers of his dominant right hand that he has consistently described in his affidavits and to medical examiners.    
Restrictions
194	While counsel for the defendant sought to downplay the importance of medical evidence, it is important in this case.
195	There is no dispute that the plaintiff has lost a degree of sensation in his right hand and also hand movement is restricted as a result of his finger injuries.  Sensory loss as a result of nerve damage and loss of range of motion were confirmed by all medico-legal examiners in this case.
196	As a result, the plaintiff has difficulty with tasks that involved lifting, gripping, pushing, and pulling.  He also has difficulty with fine motor tasks and any repetitive tasks. 
The plaintiff’s age 
197	The plaintiff is now only 28.  He is still a very young man with very significant ongoing hand pain and restrictions.
198	In Stijepic v One Force Group Aust Pty Ltd, Ashley JA and Beach AJA held that when judging the pain and suffering consequences for the appellant by comparison with other cases, they considered it relevant to look at the likely period for which those consequences would be experienced.  It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for 40 years or more might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
Treatment
199	Counsel for the defendant submitted what the plaintiff says about pain is inconsistent with what he does about it.  There has been little recent treatment, with the records indicating the plaintiff last saw his GP for his hand pain in July 2021, although it is accepted he saw his GP three months ago.
200	However, as counsel for the plaintiff submitted, the plaintiff’s explanation for not seeking treatment was plausible.
201	Dr Dhillon operated immediately after the incident.  Following that surgery, there was a period of hand therapy.  About a year later in November 2020, the plaintiff underwent further surgery performed by Dr Dhillon which provided no improvement.  Thereafter he had further hand therapy. 
202	There has been no suggestion subsequent to these surgical procedures that there is any further treatment that can be undertaken.
203	The plaintiff continues to regularly take over the counter pain medication and on occasion takes prescription medication with episodes of more significant pain.
204	As Dodds-Streeton JA said in Kelso v Tatiara Meat Company Pty Ltd:
“…the reasons for judgment fail to deal at all with the issue of, and evidence concerning, the appellant’s persistent pain, to which he deposed in three successive affidavits, and on which he was cross-examined. The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
Work  
205	Counsel for the defendant relied on Ashley AJ’s comments in Dwyer v Calco Timbers Pty Ltd (No 2) 
“… in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities.  It is true that impairment is concerned with what has been lost.  But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
206	It was acknowledged to the plaintiff’s credit, he has remained employed pretty consistently since May 2021 in almost full-time work.  While he deposed to limited employment prospects for machine operation work, there was no corroborating evidence, and in any event, he has held work for a prolonged period of time. 
207	There is no evidence of any financial disadvantage.
208	While the plaintiff has said his work is now off the tools, in cross-examination he accepted he worked onsite at Civall Solutions.  While he deposed excavation work was less enjoyable, he did this type of work before his injury and did not say he derived no enjoyment from it.  
209	Excavation work is similar to the labouring work he was doing at the time of the incident, and he still does some labouring work from time to time, although with some difficulty.  
210	In those circumstances, it was submitted it does not quite get to a level where loss of vocation is a tangible consequence for this plaintiff.
211	Counsel for the plaintiff submitted there is a loss of ability to work in unrestricted manual employment, which is a matter of some substance.  
212	All of the doctors obtain a history of the plaintiff’s inability to return to unrestricted manual work.  Dr Stapleton and Mr Thomas expressly accept this as being as a result of the injury, and Mr Robbins does so by inference.  
213	Dr Stapleton thought there was a profound effect on work capacity, and also domestic and leisure activities, will be a problem for the plaintiff permanently.
214	While the plaintiff has remained in employment, it was submitted that ignores the fact he has been forced to find work of a lighter character and lost the ability to work in unrestricted manual employment.  
215	The loss of ability to engage in a range of work is relevant to assessing pain and suffering consequences. 
216	In this application, all examiners agree the plaintiff is no longer able to engage in manual, unrestricted, or heavy physical work because of his hand condition.
217	At the time of the injury, the plaintiff had been working in a manual job in demolition but had to cease that work after the incident. While he has been able to engage in a range of other jobs since that time, on a decreasing basis they have involved heavy manual work because of the difficulties he has with his hand.
218	I accept if the plaintiff had to seek other work in the future, the jobs now open to him would be more limited than preinjury. He continues to suffer hand pain in present job and is likely to continue to do so for the foreseeable future. 
Other activities
219	Counsel for the defendant submitted while loss of recreational activities loom large in the application, particularly dirt bike riding and water sports, these activities are described by the plaintiff as “interests” and are hobbies.  It is not a situation where he was a champion water skier or participated competitively in various sports, so the Court should not put much emphasis on them.
220	It was submitted the plaintiff’s evidence about his post-injury participation in water sports was inconsistent.  He still goes out on a boat with his family and friends, and he is able to act as a driver or spotter.  He still goes fishing.  Water sports are a hobby that may have been altered or modified, but certainly not lost to him.
221	In terms of dirt bike riding, the plaintiff has said his current capacity to participate in that activity would be limited now, given his busy family life.  
222	The plaintiff still goes camping with family and that is certainly a hobby he can readily engage in.
223	The plaintiff first mentioned his interest working on cars in his second affidavit.  He was still able to install a winch on his car.  The finger injury should not prevent him from attending car meets and races.  While he says he no longer works on cars as much as he used to, he still can work on them to some extent as his mother and partner deposed.  This is a hobby that the plaintiff has had to modify but it has not been lost to him.  
224	Counsel for the plaintiff submitted pre-incident, the plaintiff was a very active young man who should be accepted as someone who, in his words, worked hard and played hard.  Because of his injury, he is now forced into what is for him a far less satisfactory and largely sedentary lifestyle, having lost his ability to engage in a number of physically demanding recreational activities which were very important to him, as he deposed.  
225	The lay witnesses confirmed the major role physically demanding recreational activities played in his life.
226	I accept that in this case, the loss of recreational activities in and of themselves go a very long way towards satisfying the “very considerable” test, particularly considering the plaintiff’s daily pain.  
227	The plaintiff’s attempt at wakeboarding was short lived and painful.  He has been unable to return to waterskiing and dirt bike riding.  Riding a road bike was extremely difficult because of difficulty gripping onto the handlebar.  While he still goes camping, he is unable to assist with setting up the camp and other related activities.  He no longer enjoys four-wheel driving on rough terrain.  He is unable to do work on his car which requires fine motor skills or heavy lifting.   
Domestic activities 
228	I accept that the plaintiff has difficulty caring for and playing with his 14-month-old daughter – a matter of real importance to him. 
229	The plaintiff is significantly limited in his ability to prepare food, including cutting and chopping vegetables or opening jars.  He is able to use gardening tools but with some difficulty and has modified chopping wood by purchasing a splitter.
230	There is some interference with sleep as his partner confirmed and he has to be careful not to roll on to his right hand.
231	The lay witnesses corroborate in some detail, the plaintiff’s pre-injury level of activity, his continuing significant hand pain and resultant restrictions. 
232	As the plaintiff’s right hand/finger pain and restrictions have continued for over five years without significant improvement despite operative and conservative treatment, I am satisfied this impairment is permanent, a view shared by all medico-legal examiners.  
233	Taking into account all the evidence, I am satisfied the plaintiff has a serious injury. His impairment has consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
234	Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.