Cross v Elsea Design & Construction Pty Ltd [2026] VCC 78

1. Mr Cross left school in 2009 and started a number of possible careers, before commencing a carpentry apprenticeship in 2019. Between 2009 and 2019 he suffered a number of injuries, mostly from playing football, including injuries to his left forearm, left hand, left shoulder and left wrist. Mr Cross also experienced episodes of work-related back pain.
2. The defendant suggested that some of these previous injuries may have contributed to Mr Cross' current symptoms. However, there is no medical evidence to support that proposition and I reject it.
3. Following his injury on 18 November 2022, Mr Cross sought treatment from his general practitioner on 21 November. She referred him for scans. The following day, an x-ray and ultrasound were carried out on his left index finger. The notes from the x-ray were as follows:[5]

There is generalised swelling of the index finger compared with the little finger. The reason for this is unclear. No radiopaque foreign bodies can be identified. No body or joint abnormality is evident.[6]

1. The reasons for the swelling were revealed by the ultrasound:

A foreign body is demonstrated within the flexor tendon sheath at the level of the middle phalanx measuring 5.2 x 0.3 x 0.3 mm. Flexor synovitis is noted. The extensor tendon is normal.

Comment: the signs would be consistent with a fibreglass fragment.

1. Experiencing increasing pain, Mr Cross was referred for surgery, and on 1 December 2022, a surgeon performed a debridement, exploration and washout of Mr Cross' left index finger. The surgeon's notes do not confirm whether or not the foreign body (presumably, a fibreglass fragment) was successfully removed.[7]
2. On 6 December 2022, Mr Cross commenced hand therapy through the Alfred Hospital. In February 2023, he started receiving hand therapy at Kingson Hand Therapy. Records from the clinic confirm that Mr Cross received therapy at the clinic until November 2023 and again between May and June 2025.[8]
3. The records reflect less, and less regular, appointments than Mr Cross claims to have had, and I accept that Mr Cross may - deliberately or by mistake - have overstated the number and frequency of his appointments. However, there is no material to contradict his testimony that he currently attends there for weekly appointments, and that these appointments are paid for by WorkCover.[9]
4. Mr Cross testified that he experiences constant pain from his injury. The pain becomes worse if he actively uses his left hand, especially his index finger. This affects his ability to use his left hand. The pain also becomes worse in cold weather and cold water. The scar is also very sensitive to touch.
5. As a result, he tries to avoid actions and activities which require significant use of his left hand. This can mean trying to do the action or activity one-handedly, or with limited or modified use of his left hand; or avoiding the action or activity altogether. Fortunately, his left hand is not the dominant hand, so he is still able to perform many of his former activities, albeit in a modified way.
6. Mr Cross testified that the hand therapy provides some relief from, and reduction in, the pain. Mr Cross also manages his pain by taking Panadol and Nurafen; but avoids taking stronger painkillers out of concern about their addictive nature.
7. On 10 June 2025, Mr Cross had an MRI scan on his left hand.[10] The report of the scan concludes "Unremarkable study. No cause for discomfort identified". There was no evidence before me as to whether an MRI would be able - like an ultrasound, but apparently unlike an x-ray - to detect a small fibreglass fragment.

1. Mr Cross reports that pain from his injury impairs him in a number of ways, including:
   1. He still works as a carpenter, but in a modified capacity where he is often assisted by an apprentice in tasks that require the use of a left hand and are either repetitive or require strength;[11]
   2. Pain has affected his ability to perform required work duties, and has caused him to lose or leave a number of previous carpentry jobs;
   3. Activities of daily living, such as showering, cooking and cleaning, take longer and are much harder to do;
   4. He is unable to help his mother on the farm with tasks such as fencing or chopping wood;
   5. He is no longer able to lift weights with his left hand so has stopped going to the gym;
   6. He was an active footballer, cricketer and golfer, and no longer plays these sports;
   7. He used to enjoy motocross, dirt bike riding and hunting, but now finds it difficult if not impossible to do these things;
   8. He cannot take his dog for a walk;
   9. He was a competent guitarist and drummer, and use to DJ professionally, but is not able to do any of these activities; and
   10. His sleep is interrupted two or three times a night, and he is sometimes unable to get back to sleep due to pain.
2. Taking Mr Cross' evidence at face value, I consider that these consequences, collectively, are at least very considerable, and therefore constitute a serious impairment. In reaching that conclusion, I have compared Mr Cross' consequences with other cases in the range of possible impairments.[12] I have also taken into account the aspects of function that Mr Cross has retained; and the fact that he is a relatively young man.
3. Mr Cross' evidence is supported by the reports of his hand therapist, David Jacobs; pain specialist and anaesthetist, Dr Symon McCallum; and plastic and reconstructive hand surgeon, Mr Damon Thomas. Those practitioners agree that Mr Cross' symptoms are unlikely to improve, such that his impairment can be regarded as permanent.[13] I agree.

1. The defendant's primary submission is that I should reject Mr Cross' evidence about his impairment as exaggerated and embellished, and reject the plaintiff's medical reports as they are largely based on his self-report.
2. The defendant submitted that Mr Cross' claims were inherently implausible, in particular his claims about the modified manner in which he works as a carpenter, including the assistance he receives from apprentices. However, the target at which the defendant took aim was an exaggerated and distorted version of what Mr Cross had said, in which Mr Cross essentially did nothing but stand around and direct apprentices.[14] Looking at what Mr Cross actually said, I do not find his claims to be inherently implausible.
3. The defendant also relied on its medical reports, including hand, plastic and reconstructive surgeon, Dr Peter Dixon; consultant occupational physician, Dr Majid Rahgozar; and consultant in rehabilitation and pain medicine, Dr Clayton Thomas.
4. Dr Dixon opined that Mr Cross demonstrated significant signs of abnormal illness behaviour and exaggeration.[15] This opinion was largely based on a supposed contrast between Mr Cross' reported inability to use his left hand at work, and the fact that his left hand was dirty and callused (suggesting it had been used for work), and that Mr Cross was able to lift his phone and glove using his left hand.
5. However, this is a false contrast. Mr Cross does not claim that he does not use his left hand at all.[16] He says that he uses it when he can do so without it causing excessive pain. The photographs Dr Dixon took of Mr Cross' hand are consistent with this: the left hand appears to be significantly less dirty and callused than the right hand.[17]
6. It is also clear that Dr Dixon had formed a negative attitude towards Mr Cross, describing him as being of "aggressive effect", and saying that "Mr Cross demonstrated disrespect for staff, which further suggests psychological factors affecting his presentation and recovery".[18] I am not sure why Dr Dixon's medical expertise qualifies him to draw that inference. Mr Cross gave his own version of what had happened during the encounter with Dr Dixon, from which it is clear that their disdain was mutual.[19] For the above reasons, I did not find Dr Dixon's conclusions persuasive.
7. Dr Rahgozar also relied on the fact that Mr Cross' left hand was callused and dirty in reaching his conclusion that "There is a likely significant, if not dominant, nonspecific pain and exaggeration of symptoms and disabilities".[20] Dr Raghozar also said that there was no evidence of wasting or dysfunction of the left upper limb.[21] Dr Thomas relied on similar observations to reach similar conclusions.[22] However, both doctors reported that the grip strength of Mr Cross' left hand was significantly lower than that of his right.[23]
8. In addition, Dr Rahgozar pointed to "a number of psychosocial risk factors which are predictive of such non-specific pain and disability". These included "a concurrent mental health condition", "a perception of a lack of care and support from the employer" and the "involvement of lawyers". It is not obvious to me how Dr Raghozar's medical expertise qualifies him to imply that the involvement of lawyers, among other things, makes it more likely that Mr Cross is exaggerating his symptoms. I am unpersuaded by Dr Raghozar's conclusions.
9. Nor am I persuaded that the absence of significant wastage of the left arm necessarily means that Mr Cross is understating what he is able to do with his left hand and arm. As already noted, Mr Cross testified that he uses his left hand and arm when he can, subject to experiencing pain. The defendant's medical reports do not, therefore, lead me to reject Mr Cross' evidence.
10. The defendant noted that Mr Cross had failed to call a number of possible witnesses to corroborate his evidence, such as his younger brother, with whom he lives, or the president of his former football club. I note that serious injury applications are gateway proceedings, usually conducted with no oral evidence other than the plaintiff. I give little weight to this criticism.
11. The defendant also submitted that Mr Cross was argumentative and evasive during cross-examination and that this weighed against his credibility.[24] I agree that Mr Cross was at times combative, and that he made no attempt to answer questions he considered to be misconceived, vague or unclear. However, I consider that his attitude was consistent with a person who genuinely believes himself to be injured, who resents any suggestion that he is making it up, and is irritated by the legal and medico-legal processes to which he is subject as a result of this application.
12. The evidence Mr Cross gave during the hearing about his pain and the impact it has on his ability to engage in various activities was also consistent with what he told the treating and assessing medical practitioners. This includes that he is able to do many things, but often in a modified fashion, and that he endures significant pain in doing so. The fact that Mr Cross was certified as fit to return to work in February 2023 is not inconsistent with that.[25]
13. Finally, the surveillance footage relied on by the defendant was more supportive of Mr Cross' testimony than not. My own examination of the footage suggests that his left index finger was bowed away from the objects being held in his left hand and was not being used to hold them.[26] The footage thus supports Mr Cross' evidence that he does not actively use his left index finger, but does use his left hand when he can.
14. I accept that Mr Cross tended to become defensive. As part of that, it is also possible that he may, at times, have slightly overstated his pain or impairment. Nevertheless, on the whole, I found him to be a credible witness. I therefore find that Mr Cross does, in the main, suffer the consequences he claims. That is sufficient, in my view, for those consequences to be at least very considerable, and to therefore constitute a serious impairment.

1. The defendant's secondary submission was that Mr Cross' impairment has a psychological, rather than organic, basis. There is no doubt that the injury has had significant psychological consequences for Mr Cross, and that he has suffered from depression and anxiety.[27] I am required to disregard these consequences for the purposes of determining whether Mr Cross has a permanent serious impairment or loss of a body function.
2. One of the defendant's experts specifically raises the possibility that there may be a non-organic component to Mr Cross' presentation and functional overlay.[28] However, the evidence in support of a functional overlay does not really go any further than that.
3. By contrast, Dr McCallum opines that Mr Cross "has signs and symptoms of a neuropathic pain".[29] Dr McCallum notes his concern "Mr Cross is at risk of further psychological deterioration due to the effect the pain has had upon his life. This would increase his distress and disability from his organic injury".[30] However, even looking at the neuropathic pain on its own, Dr McCallum opines that the prognosis is poor.[31]
4. Mr Thomas similarly attributes the reduced range of motion, pain and loss of function in Mr Cross's left index finger (and therefore left hand) to the injury (rather than to any functional overlay).[32] I prefer the opinions of Dr McCallum and Mr Thomas to those of the defendant's experts.
5. As I have already noted, the opinions of the defendant's experts are flawed in that they are significantly based on a false premise: that Mr Cross claims that he does not use his left hand or arm at all. That "claim" is contradicted by the physical state of Mr Cross' hand and arm (dirt, callusing, limited muscle wastage), which enables the experts to conclude that Mr Cross is deliberately exaggerating and embellishing his impairment, and/or that the causes of his impairment are primarily psychological.

1. Accordingly, I grant Mr Cross leave to commence a proceeding for pain and suffering damages, for injury suffered in the course of his employment on 18 November 2022. I shall hear from the parties as to consequential orders.

[1] The parties tendered the following exhibits: Plaintiff's Amended Court Book (20 August 2025, P1); Amended Court Book of the Defendant (3 February 2026, D1); surveillance footage of Mr Cross (2 February 2026, D2); Kingston Hand Therapy clinical records (D3); and bundle of letters of instruction (D4). References commencing "P" are to the plaintiff's court book; those commencing "D" are to the defendant's court book; and those commencing "T" are to the transcript of the hearing.

[2] The application is made in reliance on paragraph (a) of the definition of serious injury in s 325 of the WIRC Act; and in relation to pain and suffering only.

[4] Mr Cross swore affidavits on 30 October 2024, 18 August 2025 and 21 January 2026. Aside from issues relating to the consequences of the injury, the material in these affidavits is largely undisputed.

[6] A subsequent x-ray on 30 November 2022 also noted "No appreciable radiopaque foreign body within the soft tissue": P1, page 55.

[9] There are notices of approval of hand therapy at P34 and 38.

[11] Mr Thomas confirms that Mr Cross is capable of undertaking light tasks with the left hand: P81 [6].

[12] I was provided with, and have compared and considered, TTB SMS Pty Ltd v Reading [2020] VSCA 203 at [31] (Tate and T Forrest JJA); MacDougall v VWA [2021] VCC 1292 (Judge Clayton); Bustos v VWA [2021] VCC 1531 (Judge Ginnane); Cahun v VWA [2023] VCC 413 (Judge Purcell); and Ajang v VWA [2025] VCC 1295 (Judge Over).

[13] See Mr Jacobs, P62; Dr McCallum, P67; and Mr Thomas, P80-1.

[15] D14-15 [7]. Self-contradictingly, earlier in his report Dr Dixon states that "At no stage in the examination did Mr Cross manifest abnormal pain behaviour, nor do I consider them to have embellished or exaggerated their presentation": D11-12.

[16] None of the defendant's experts were provided with Mr Cross' affidavits: see bundle of letters of instruction, Exhibit D4.

[17] D17 and 19 (curiously, neither photo includes the injured finger). There are photos of the complete left hand including the left index finger (also showing some dirt and callusing) in Mr Thomas' report, P83-4.

[21] D125. However, Dr Raghozar had earlier reported that the circumference of the right forearm was 1cm greater than the left: see D24.

[22] D118 [14: Q1]. Dr Thomas also noted that the circumference of the right forearm was greater than the left.

[23] See D24; D118 [14:Q1]; and D124. Dr Dixon's findings on this issue were difficult to understand: see D12-14. For the 22 February 2023 findings of the hand therapist, Thomas Conway, see D28.

[26] See Exhibit D2, particularly at 47-49 seconds, and 1:00 to 1:05.

[27] No claim is made under paragraph (c) of the definition of serious injury.