Di Matteo v Victorian WorkCover Authority [2025] VCC 1645

(a) permanent serious impairment or loss of a body function; or

1. Assessing whether the injury claimed is a "serious injury" is undertaken at the time the application is heard. Here, the plaintiff says the injury the subject of the application is a serious injury because it is a permanent serious impairment or loss of a body function and so the term "serious" is satisfied by reference to the consequences to the plaintiff of any impairment or loss of body function with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of body function.[1]
2. Any impairment or loss of a body function or a disfigurement will not be serious for the purposes of s 335(2) of the Act unless, relevantly here, the pain and suffering consequence is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.[2]
3. Whether an injury is a "serious injury" within the meaning of s 325(1) of the Act is assessed by applying the "narrative test".[3] This involves a two-stage process. The first requires assessing whether the nature and symptoms of the injury and the consequences of the injury are, subjectively for the plaintiff, "serious". The second requires a determination whether the injury as so assessed is objectively "serious" or, in the case of mental or behavioural disturbance or disorder, "severe" when compared with the range or "spectrum" of comparable cases.[4] As to any physical injuries, the second stage involves a consideration whether the injury is, when compared with other possible impairments, losses of body function or disfigurements, at least 'very considerable', and more than 'significant or marked'.[5]
4. Assessing the plaintiff's "pain and suffering consequences" resulting from an injury, requires the Court to consider both the plaintiff's experience of pain in addition to the disabling effect of the pain on the plaintiff's physical capabilities and enjoyment of life.[6] It may be necessary to consider the intensity, frequency and duration of the plaintiff's pain by reference to the plaintiff's account of the pain, what he or she does about the pain (for example medication, rest, seeking medical treatment), the medical opinions on the extent and intensity of the plaintiff's pain, and what the objective evidence indicates about the disabling effect of the pain.[7] Assessing the extent or degree to which pain from a physical injury impacts the plaintiff's physical capacity and enjoyment of life includes considering the effect of pain on the plaintiff's sleep, mobility, cognitive functioning, capacity for self-care and self-management, performance of household and family duties, recreational activities, social activities, sex life, and enjoyment of life.[8] The disabling effects of pain may also be shown by considering whether the plaintiff has resumed employment and, if so, what, if any, limitations there are on the plaintiff's employment.[9]

• 8 The weight that is ascribed to the plaintiff's account of pain will in part depend on the Court's assessment of the plaintiff's credibility or reliability.[10] An assessment of credibility or reliability depends on the plaintiff's evidence and the views expressed by the examining medical practitioners' and any opinions about the reliability of the plaintiff's accounts of pain.[11]

1. The plaintiff is now 61 years old. She completed the equivalent of Year 11 at secondary school and went on to work in various retail jobs before commencing employment with Epworth Hospital as an orderly in about 2005. She lives in Reservoir with her husband and her son.[12]
2. She commenced working for Affinity as a theatre technician at Warringal Private Hospital in around July 2011. She was employed on a full-time basis; on occasion she would also work shifts at the Mercy and St Vincent's Hospitals. She also attained Certificates III and IV in Operating Theatre Technical Support whilst employed by Affinity and Epworth.[13]
3. The plaintiff said that before suffering the crush injury, her favourite hobby was tenpin bowling which she played regularly with her friends. She said she loved tenpin bowling and played in social competitions each week and had her own bowling gear. The plaintiff said that she was also a gym regular attending fitness classes and that she enjoyed long power walks. She said she also enjoyed gardening, painting and home maintenance and she considered herself as the "handyman" and took pride in keeping the house and garden neat and tidy.[14] The plaintiff said that she also enjoyed scrapbooking each month and using colouring books each week. She said that she enjoyed spending time cutting up photographs and filling up a photo album for her family and that each week she would spend a few hours drawing and colouring in books to relax after work.[15]
4. The plaintiff has had health issues and injuries before the crush injury she sustained in 2019. In about 2009, the plaintiff suffered a right middle finger injury whilst working at the Epworth Hospital. She made a WorkCover claim and subsequently underwent a right middle finger trigger release procedure. Following surgery, the plaintiff commenced hand therapy and reports that she made a good recovery and resumed her preinjury hours and duties.[16]
5. In about 2012, the plaintiff sustained a minor fracture to her "left hand fingers" whilst employed with Affinity. The fracture was said to have healed without the need for treatment. A WorkCover claim was made but the plaintiff did not require much time off work and was said to have made a full recovery thereafter.[17] The plaintiff suffered a right-hand haematoma injury whilst employed with Affinity in about 2015. She said that no treatment was required as the haematoma resolved with rest.[18]
6. Over the years, the plaintiff has also suffered from recurrent kidney stones. On occasion, she has visited hospital because of the pain.[19] In early 2025, she attended her GP because she was experiencing kidney pain. The plaintiff was referred for scans and then to a specialist and was diagnosed with kidney stones. Panadeine Forte was prescribed for pain management and the plaintiff reports that she made a full recovery.[20]

1. On about 24 January 2019, the plaintiff's right hand was crushed against a wall whilst pushing a malfunctioning operating table to the maintenance team with the assistance of a colleague.[21] After moving the table some distance, it became stuck on a door track. The plaintiff said that she was expecting her colleague to pull the table to dislodge it, but the colleague instead pushed the table causing the plaintiff's right hand to be pinned against a wall. The plaintiff said that the pain was immediate and that she was reviewed by a nurse at Warringal Private Hospital before being directed to attend the emergency department at the nearby Austin Hospital where she underwent an x-ray scan. She was diagnosed with an open fracture and haematoma of her right little finger and closed mallet injuries to her right ring and middle fingers.[22] The plaintiff was told that she would require surgery to repair the fracture injury but that the Austin Hospital was experiencing surgery delays. She was told that the surgery could be undertaken by plastic surgeon Mr Derek Neoh at St Vincent's Hospital and on about 25 January 2019, she had surgery to insert a K-wire into her right little finger and had a back-slab positioned in her ring and middle fingers.[23]
2. Following the surgery, the plaintiff was discharged and subsequently attended her GP at Coburg Family Medicine on 4 February 2019 for review. She made a WorkCover Claim in respect of the hand injury.[24] This was accepted, and she commenced receiving weekly payments for the period she was off work.[25] On 5 February 2019, she returned to see plastic surgeon Mr Derek Neoh who referred her to Ms Elaine Naughton at Melbourne Hand Therapy to commence rehabilitation. The plaintiff returned to work in March 2019 on light and modified duties.[26] She says that following the accident she struggled with her mental health. As such, she was referred to psychologist Leigh Parkin in May 2019 whom she saw on "only a few occasions".[27]
3. Despite receiving hand therapy, the plaintiff said she continued to experience ongoing right-hand pain leading her to overcompensate with her left arm resulting in left shoulder pain. She was referred for physiotherapy in July 2019 and prescribed Lyrica and Norspan patches for pain by Dr Maher Luka, her general practitioner. In October 2019, Dr Luka referred the plaintiff for a further x-ray scan of her right hand which detected an acute fracture or dislocation. She was referred to Mr Barry Slon, pain physician, for review. Mr Slon referred the plaintiff for a further surgical opinion and prescribed Venlafaxine and Nortriptyline for pain.[28]
4. In December 2019, Mr James Thomas, plastic surgeon, diagnosed the plaintiff with CRPS in her right hand and opined that she would benefit from a steroid injection. She returned to Dr Luka seeking to explore other treatment options and was referred to Mr Damon Thomas, plastic surgeon, who recommended a cortisone injection. The cortisone injection was administered in early 2020, however the plaintiff reports that she did not feel much benefit.[29]
5. On 14 April 2020, she underwent a right ring finger trigger release procedure, which she says had a reasonable result, but she continued to have right hand pain. A further steroid injection was administered by Mr Damon Thomas in July 2020.[30]
6. In June 2020, the plaintiff commenced psychology treatment with Melissa Donati and continued to see her periodically until February 2024.[31] The plaintiff suffered an unrelated laceration to "the finger" on her right hand in November 2020, which she says healed without the need for treatment.
7. Mr Damon Thomas administered a final cortisone injection in January 2021.[32] The plaintiff said that she continued to have ongoing issues with her left shoulder and right hand throughout 2020 and into 2021. She had returned to work with Affinity following the second procedure and had almost resumed working preinjury hours and duties when she accepted a full-time position as a theatre technician at North Park Hospital, leaving Affinity in late 2021 to commence the new job.[33] The plaintiff had further physiotherapy and an ultrasound in November 2021, and she undertook hand therapy treatment in early 2022. This continued until about January 2023 when the plaintiff says she was told that "there was little more that could be done" on her hand.[34] Consequently, the plaintiff says she has had little treatment on her right hand or left shoulder since 2023.[35]
8. For pain relief, the plaintiff rubs her hand regularly and uses topical ointments and Dencorub, takes Panadeine Forte, Mersyndol Forte or Maxigesic as needed when the pain flares up, uses Nurofen sparingly and wears a compression glove in colder months which she says assists with circulation and swelling.[36]

1. As earlier noted, the plaintiff worked as a full-time theatre technician at Warringal Private Hospital and on occasion, she would also work shifts at the Mercy and St Vincent's Hospitals. She was working at Warringal Private Hospital when she sustained the crush injury to her right hand. She had time off work following the injury, returning to light or modified duties in March 2019.[37]
2. The plaintiff returned to work with Affinity after her second procedure (right ring finger trigger release procedure on 14 April 2020) and had "almost" resumed her preinjury hours and duties when she was offered a position with Healthscope Operations Pty Ltd at North Park Hospital as a full-time theatre technician, which she accepted in late 2021. After several months with North Park Hospital, the plaintiff commenced a medical sales role with Device Technologies Australia Pty Ltd in March 2022 on a full-time basis. After approximately 10 months, her role was "transferred" to Steris Australia Pty Ltd, and she remained in the sales position until January 2024. The plaintiff accepted a sales position with DON Smallgoods in January 2024 resigning in about November 2024. Next, the plaintiff commenced employment with InCare Health Services as a customer service/business development manager and continued in that role until the position was made redundant and her employment ended consequently. Since August 2025, the plaintiff has been employed by Adeney Private Hospital as a full-time theatre technician, a job in which she plans to continue working for as long as she can.[38]
3. The plaintiff said she was happy in her current job, which she described as relatively light and manageable, compared to her previous theatre technician role because the place of work is a smaller facility, the surgeons are younger and more 'hands on' which made her job easier, and they are more mindful of safe work practices and use modern equipment.[39]

1. The plaintiff's evidence concerning the pain and suffering sequelae of her hand injury was to the following effect.
2. The plaintiff said that since her injury, she has experienced constant pain in her right hand. She wakes most nights and sleeps with her hand elevated whilst on the couch, and her sleeping on the couch has impacted her relationship with her husband. She has trouble with dexterous movements such as using tongs, pushing buttons and tying laces. She reports finding household tasks difficult, especially those involving repetitive movements. She says that she used to enjoy gardening, painting and home maintenance and took pride in keeping the house and garden neat and tidy. Since the injury, she relies on her husband and son for assistance in these duties.[40] During cross-examination, the plaintiff clarified that she was not suggesting that she does not engage in any of these activities any longer and that she has tried things such as house painting involving painting under her veranda and the columns of her house. She said that she remembered applying two coats and that when she was painting, she used her dominant right hand but also sometimes her left hand.[41]
3. The plaintiff also accepted that she had told her hand therapist at the Melbourne Institute of Plastic Surgery in 2021 that she had been using the hand at home cooking and painting and though the hand felt sore sometimes at the end of the big day, but it was generally better. The plaintiff accepted that on other occasions in 2021, she told the therapist that she was doing well and was using her right hand at home and at work almost as normal with no issues, although had a fairly constant ache but not flaring up with use as much as it used to; that she had a busy weekend cooking and cleaning and that her hand was coping well; and that she reported that after undertaking an orthopaedic list as a theatre technician, she thought she was able to do all of the tasks at preinjury level and that she experienced no flareups but a background ache remained.[42]
4. As earlier noted, the plaintiff says that prior to her injury, she enjoyed her hobby of tenpin bowling, playing with friends and family and in social competitions. She says that she attempted to return to tenpin bowling, but she was unable to tolerate the pain. She also used to attend gym classes and take long power walks but can no longer do so because of her injury.[43] During cross-examination, the plaintiff clarified that before suffering the crush injury, in around July 2018 she suffered pain in her left pectoralis muscle and pain in over the shoulder level movements for which she was prescribed medication and referred to physiotherapy and that she required some time off work. She agreed that she would not have gone bowling or attended the gym from about the middle of 2018 because of the pain she experienced.[44] The plaintiff said that, although not recently, she had resumed power walking to attain a level of fitness, but she would suffer pain later. She said that, although not every day, she would go for power walks of about 1.5 hours in duration but could not remember how many times per week. She said that since she began work as a technician again, she has not been for a power walk because she doesn't get home until after 6 pm.[45]
5. The injury is said by the plaintiff to have caused a decline in her mental health characterised by loss of confidence, low mood, low motivation and feeling flat. She says that she has experienced depressive thoughts and at times has been suicidal.[46] She spends less time with her family and friends and finds herself spending more time at home and isolated.[47] During cross-examination, the plaintiff appeared to accept that her work commitments, particularly coming home after 6 pm, affects her ability to see her friends but that she still sees her friends on weekends although not as much as before her injury. She said that a significant part of the reason is because of lowered mood, that she feels down and sometimes she cannot be bothered.[48]
6. The plaintiff's son, Trent Di Matteo, swore an affidavit on 4 September 2025 deposing to some of the pain and suffering consequences he says he observed in respect of the plaintiff's workplace injury. He described his mother as "active, confident and social" prior to the injury and said that she played tenpin bowling and attended the gym with him about two times a week.[49] As to household duties, Mr Di Matteo deposed that the plaintiff would take care of the household including cooking, cleaning, washing, gardening and projects around the house. He deposed that since the injury, the plaintiff leaves the house significantly less, struggles to undertake household tasks and has lost interest in her hobbies. Mr Di Matteo's affidavit, though supportive of the plaintiff, is generalised and adds little to the plaintiff's narrative already discussed.
7. The plaintiff's friend of 36 years, Anna Occhiuzzi, swore an affidavit on 5 September 2025 deposing to her observations of the plaintiff's lack of energy, difficulty engaging in social events and daily activities including home maintenance.[50] Ms Occhuizzi described the change in the plaintiff's mood as "stark", that she was "always very confident and outgoing and always busy going out and doing things" but now presents as "withdrawn and retreated".[51] Again, though supportive of the plaintiff, Ms Occhuizzi's affidavit is also very generalised and adds little to the plaintiff's narrative.
8. The plaintiff was by and large a truthful witness making appropriate concessions during cross-examination. The plaintiff struck me as stoic - by which I mean she appeared accepting of and willing to endure her fairly constant background pain (to which reference is later made) - earnest and not prone to exaggeration. Moreover, there was no attack nor criticism of the plaintiff's credit or the reliability of her evidence.

1. In his letter to Dr Maher Luka dated 13 December 2019,[52] Mr Damon Thomas stated that the plaintiff, as a result of a crush injury to the right hand sustained in the course of her employment as a theatre technician, presented with "trophic changes" around her fingers, a "reduced range of motion" and an "inability to make a full fist".[53] Despite receiving treatment, Mr Thomas considered the plaintiff's condition had been complicated by "chronic regional pain syndrome" and "triggering of the ring finger". Mr Thomas recommended a steroid injection to the ring finger flexor sheath to address the trigger.[54] Steroid injections were administered on 21 January 2020[55] and 24 July 2020.[56]
2. Mr Thomas reported on 9 April 2025[57] that the plaintiff presented on 13 December 2019 with a right-hand crush injury and his diagnosis was "right little finger fracture and nailbed laceration".[58] Mr Thomas noted the plaintiff had secondary issues which are triggering of the ring finger requiring steroid injections and operative intervention. And he opined that she also has an element of pain syndrome. Mr Thomas last saw the plaintiff on 23 April 2021 and noted that at that point she still had issues with reduced range of motion, pain and reduced grip strength.[59]

1. In her report of 1 May 2025,[60] Ms Kate Sleep stated that the plaintiff's last appointment was on 25 January 2023. She noted that on this occasion the plaintiff had reported that her pain and hand function was unchanged over the previous several months, that she experienced hand and forearm pain during heavy lifting and that she had a "fairly constant background ache".[61] Ms Sleep opined that the plaintiff had suffered "crushed right little and ring fingers involving fractured 5th metacarpal and fractured little finger" with a secondary diagnosis of complex regional pain syndrome and right ring finger trigger. Further, Ms Sleep opined that an x-ray taken in January 2023 showed arthritic changes in the right 5th MCP joint and finger interphalangeal joints. Ms Sleep administered a Disability of the Arm, Shoulder and Hand Questionnaire, the result of which "suggests a severe impairment, significantly affecting daily activities, and may necessitate adjustments to work or other functional aspects of life".[62]

1. In his report dated 1 May 2025,[63] Dr Barry Slon, a pain medicine physician, said that he saw the plaintiff on four occasions in November 2019, December 2019, January 2020 and finally in April 2020. As to diagnoses, Dr Slon considered the plaintiff had a "complex regional pain syndrome of the right hand" and "mallet finger developing in the right ring finger and trigger finger developing through other fingers in the right hand".[64]

1. Dr Maher Luka reported on 21 July 2025[65] that the plaintiff suffered a "compound fracture of the distal phalanx of the right little finger, together with damage to the nail bed and damage to the right index finger" as a result of a crush injury to her right hand in the course of her employment.[66] Dr Luka opined that her recovery has been complicated by the "development of complex regional pain syndrome", "a finger trigger" and degenerative arthritis which he considers to be moderately widespread.[67] On examination, the plaintiff exhibited "persistent stiffness and functional limitations in her right hand" and complained of a constant baseline pain rated 3/10, which intensifies to 7/10 at night depending on activity level".[68] In respect of prognosis, Dr Luka considered that the chronicity of her condition and limited response to previous treatments to indicate that the "complete resolution of symptoms is unlikely".[69]

1. In her report of 18 June 2024,[70] Dr Avanthi Mandaleson, an orthopaedic surgeon, recorded that the plaintiff complained of "constant pain in the right hand with intermittent swelling and restricted finger flexion", she rated her pain 5 out of 10 at rest, noting that it increased with activity.[71] Dr Mandaleson opined that the plaintiff's pain was likely to "remain stable and similar" given the long term duration during which she had experienced symptoms since the injury.[72] As to work capacity, Dr Mandaleson noted that the plaintiff did not describe any restrictions on her ability to work and considered that her condition will not significantly deteriorate. Dr Mandaleson noted that "nil restrictions should be placed on" the plaintiff as to her work hours or duties and that the plaintiff was able to manage her condition and work around any restricted use of the right hand. Dr Mandaleson considered that the plaintiff's prognosis was fair, that she was likely to experience ongoing mild hand dysfunction and low to moderate levels of pain that were unlikely to worsen with time.[73]

1. Dr Richard Sullivan is an interventional pain specialist and specialist anaesthetist who reported on 30 June 2025[74] that the plaintiff presented with "chronic posttraumatic pain of the right upper limb". He says that whilst there are "associated features consistent with persisting, increased sympathetic tone", the plaintiff "does not meet full diagnostic criteria for complex regional pain syndrome of the right upper limb due to the lack of hypersensitivity and allodynia".[75] Dr Sullivan opined that the "functional limitations associated with the chronic pain conditions" will impose "lifelong restrictions and limitations consequent to the injury sustained in January 2019".[76] Further, Dr Sullivan concluded that the plaintiff could continue to work with appropriate modifications avoiding sustained or repetitive use of her right upper limb.
2. Dr Sullivan considered the plaintiff's diagnosis as chronic post-traumatic pain of the right upper limb and that her prognosis was poor with the chronic pain condition expected to continue into the foreseeable future. Dr Sullivan considered that there was a clear underlying organic basis for the chronic pain presentation and there were some associated features consistent with increased sympathetic tone consequent to the injuries. Deterioration of the plaintiff's injury was unlikely.[77]

1. After consulting with the plaintiff on 11 June 2025, plastic surgeon Dr John Anstee reported on 8 July 2025,[78] that the plaintiff demonstrated a reduced range of movement of the right hand on examination, consistent with a diagnosis of a previous "compound fracture of the distal phalanx of the right little finger, together with damage to the nail bed and damage to the right index finger".[79] Dr Anstee opined that her recovery has been complicated by "complex regional pain syndrome", "a trigger finger" and "degenerative arthritis".[80] In respect of the arthritis, Dr Anstee noted that it was likely genetically determined but that it may have been aggravated by the relevant injury.[81] Noting the plaintiff was employed in a full-time capacity, Dr Anstee considered there was no reason why she should not continue to work until retirement age.[82]

1. Associate Professor Evange Romas is a consultant rheumatologist and he prepared a report dated 24 April 2024,[83] in which he opined that the plaintiff presented with no symptoms of "atrophy, oedema, hyperalgesia, allodynia, or excessive sweating, nor any other signs indicative of Complex Regional Pain Syndrome" on examination.[84] He considered a diagnosis of "post-traumatic aggravation of osteoarthritis involving right middle, ring and little fingers" and "left shoulder stiffness".[85] Associate Professor Romas considered the plaintiff's prognosis to be good, that the conditions had stabilised and he noted that the plaintiff had previously been diagnosed with CRPS a few years ago but is no longer suffering from this condition.[86]

1. Mr Peter Dixon is a plastic surgeon who reported on 12 June 2025[87] that on examination, the plaintiff demonstrates a "propensity for degenerative arthritis" and symptomology associated with CRPS. Mr Dixon accepted that current symptoms could not be attributed to an aggravation of a pre-existing condition stating that "[t]he 2019 injury was a new injury with its pathological consequences".[88] Mr Dixon noted that the plaintiff was at the time of the examination employed on a full-time basis as a business development manager for an NDIS provider.[89] He also considered that as at mid-June 2025 the plaintiff did not have capacity for preinjury employment. But we know from the plaintiff's evidence that she is now employed by Adeney Private Hospital as a full-time theatre technician and has been so employed since August 2025, and as noted earlier, she plans to continue working for as long as she can.[90]

1. In summary, for the plaintiff, it was submitted that:

(a) in addition to the hand injury, the plaintiff says the evidence supports a conclusion the plaintiff has developed and continues to suffer CRPS; or alternatively, she developed and suffers chronic pain syndrome which has an organic foundation in the injury to the plaintiff's right hand;

(b) there has been a reduction in the plaintiff's grip strength over time since the injury; consequently, she has difficulties with chores around the house such as bed making, lifting pots and pans, and preparing meals; she has intermittent swelling of her right hand and avoids repetitive cleaning tasks, instead relying on her husband and son;

(c) the plaintiff continues to experience ongoing pain, limitations and restrictions; the plaintiff's pain is worse in cooler months; she has an aching type of pain which is constant; but worse in the right ring and the right little finger; she has a restricted range of movement through the little ring and to a lesser extent the middle finger;

(d) although she has returned to work as a full-time theatre technician, the plaintiff has a minor incapacity with respect to some jobs she previously performed because of the driving requirements and the limitations on her grip strength;

(e) the plaintiff is 61 years old and has a lot of work and a lot of life left to live; she has interrupted sleep, impacting both her sleeping quality, and her relationship with her husband;

(f) the plaintiff's pre-injury participation in hobbies and activities such as tenpin bowling, gym attendance, scrapbooking and colouring have been impacted. She no longer attends the gym and after a failed return to bowling she no longer bowls; and

(g) when consideration is given to all the evidence, the plaintiff's injury is, when compared with other possible impairments, losses of body function or disfigurements, at least 'very considerable'.

1. For its part the defendant in summary contends that:

(a) it accepts the plaintiff suffered a fracture to the fifth (little) finger of her right hand and closed mallet injuries to the third (index) and fourth (ring) fingers in an industrial accident on 24 January 2019;

(b) surgical repair to the little finger on 25 January 2019 (with insertion and then subsequent removal of K-wire), and a subsequent trigger finger release of the plaintiff's ring finger on 14 April 2020 was also successful;

(c) there was an initial CRPS diagnosis, but the preponderance of medical opinion supports a finding that this has since resolved;

(d) it accepts that the plaintiff is now left with some residual impairment in the affected fingers of her right hand; though the impairment is not trivial, it cannot be described as "at least very considerable"; and

(e) this is because when comparison is made with a range of cases, including cases involving impairment of the brain, the spine and larger or weight bearing joints, and cases involving consequences such as pain requiring prescription medication, significant medical treatment, significant sleep deprivation and inability to work or socialise, the plaintiff's impairment falls far short of the statutory threshold.

What is the plaintiff's injury and is it permanent/long term?

1. The plaintiff suffered traumatic injuries to the right little finger (fracture and K-wires) and to the index and ring fingers (closed mallet injuries). She underwent surgery on 25 January 2019, followed by K-wire removal, intensive hand therapy, three cortisone injections, and a trigger finger release on the ring finger in April 2020.
2. Following successful surgeries, I agree with the defendant, that the plaintiff is now left with a residual impairment in the affected fingers of her right hand. The medical evidence suggests, and I accept, the impairment has stabilised, it is unlikely to deteriorate but is permanent. Furthermore, I consider, on the available medical evidence, that although there was an earlier CRPS diagnosis, CRPS is no longer a feature of the plaintiff's impairment. The medical evidence - Mr Dixon notwithstanding - of Drs Mandaleson and Sullivan, and Associate Professor Romas suggested that the hallmarks of CRPS have resolved and that the plaintiff did not meet the full diagnostic criteria for ongoing CRPS.
3. The plaintiff's alternative contention that the plaintiff has chronic pain syndrome for which there is an organic basis is also rejected. It may be accepted that Dr Sullivan considered the plaintiff's prognosis was poor with the chronic pain condition expected to continue into the foreseeable future. He opined that there is a clear underlying organic basis to the chronic pain presentation, and there are some associated features consistent with increased sympathetic tone consequent to the injuries. Beyond that, there is no other diagnosis in the medical material suggesting chronic pain syndrome, much less an organic basis for it. Moreover, chronic pain syndrome treatment will usually involve, inter alia, medication, physiotherapy and psychological support and the plaintiff is not prescribed medication, she has not undertaken physiotherapy since early 2023 and there is no evidence of referral to or seeking assistance from a psychologist for support. I am therefore not satisfied the plaintiff has made good in the evidence the existence of an organic based chronic pain syndrome.
4. The residual impairment in the plaintiff's affected fingers of her right hand is not trivial or insignificant. The evidence indicates some ongoing pain, stiffness, and reduced grip strength in the plaintiff's right hand. Grip strength measurements taken at various times since the injury show on balance a decline over time. For example, in April 2021, the plaintiff's right hand grip strength was 36, 34, 32 kg (slightly reduced compared to the left), but by January 2023 it appears to have deteriorated to 20 kg in the right hand compared to 30 kg in the left. Nonetheless, the plaintiff retains the ability to grip and hold objects, including when setting up a theatre, transferring patients or using her right hand to hold the limbs of patients. And as earlier noted, the plaintiff was also able to undertake external painting of her home including on the veranda, often using her right hand which likely involved gripping the paint brush or paint roller.
5. Clinical examinations tend to show some stiffness in the plaintiff's fingers and inability to make a fully closed fist, but no significant atrophy, oedema, or other severe abnormalities are detected.

What are the impairment consequences for the plaintiff?

1. The plaintiff said, and I accept, that she experiences ongoing pain, which she described as a "fairly constant" background ache with periods of intense pain and limitations that fluctuated with activity and cold. The plaintiff does not complain of pins and needles or numbness, and there has been some improvement in pain since January 2023, though with some decline depending on her activities.
2. In assessing the objective evidence about any disabling effect of the plaintiff's pain I make allowance in the plaintiff's favour for the fact that I consider the plaintiff is stoic as earlier noted. Nevertheless, whilst the plaintiff's pain may be fairly constant, it is in the background, and it is not so severe or disabling as to prevent her using her right hand for daily personal, domestic and work activities. In her oral evidence, the plaintiff described her background pain as 3 out of 10 on a pain scale of 1-10. Earlier in her affidavit material, the plaintiff said that despite suffering, she pushed herself to keep using her right hand as she was right hand dominant. That the plaintiff is able, despite the background pain, to continue using her right hand is evident in her current role as a theatre technician and is consistent with the observations in the clinical examination showing the absence of any significant muscle atrophy because of disuse. The plaintiff is not prescribed pain medication for her background pain and she uses over the counter medication sparingly.

1. As earlier discussed, the plaintiff returned to her preinjury employment initially on modified duties. When she was almost ready to resume her preinjury full-time duties as a theatre technician, the plaintiff pursued other opportunities in a variety of sales-oriented roles. Very recently, she has resumed working as a theatre technician in which she is happy. She described the job as relatively light and manageable, compared to her previous role and intends to continue working in the role until retirement.
2. Before changing careers, the plaintiff in May 2021 reported that she "did an ortho list and felt able to do all tasks at preinjury level. No flare ups, background ache remains...". She has since returned to work for a different employer at a different hospital as a full-time theatre technician. The plaintiff's work capacity is, as the defendant contends, demonstrative of very significantly retained function of the fingers, hand and upper limb. And that the plaintiff has resumed and maintains full-time employment in her chosen field suggests that her career and working lifestyle remain largely unaffected.

1. As already noted, the plaintiff is not prescribed any medication for her injury or symptoms. She uses over the counter Nurofen occasionally rather than constantly, and during a flare up or on a day where she cannot bear it she will use something stronger like Panadeine Forte, Mersyndol Forte or Maxigesic for which she said she had old prescriptions. She also uses topical ointments for pain relief. The plaintiff has not sought further medical or therapy treatments. As earlier noted, the plaintiff had hand therapy treatment in early 2022 which continued until about January 2023. The plaintiff's evidence was that she was told "there was little more that could be done" on her hand. In the result the plaintiff has had little treatment since 2023 and there is no evidence of the plaintiff seeking any further opinions from any other hand therapist.

1. In her affidavit, the plaintiff said she was "often woken at night by right hand pain" and that she slept with her hand elevated whilst on the couch. There is no evidence she takes any sleep medication, and although the plaintiff said that she wakes up tired and unrested most mornings, she did not give any evidence about any adverse consequences of impaired sleep quality such as excessive fatigue or impaired concentration. The plaintiff works full-time in an important theatre technician role which operates in an operating theatre environment, doubtless requiring concentration and reliable cognitive functioning. Fatigue and lack of concentration caused by interrupted sleep would impair the plaintiff's capacity to function as a theatre technician. Were that the case the plaintiff would doubtless have said so, but she did not.
2. The plaintiff's cognitive functioning has not been otherwise affected. There is no evidence that the fairly constant pain is so severe or disabling as to impact her cognitive functioning. The plaintiff is not regularly taking prescription medication but primarily uses over the counter medication "sparingly" so there can be no impact on cognitive functioning because of any medication. And as already observed, the plaintiff can work full-time in a demanding and responsible position as a theatre technician in a hospital.

1. Mr Dixon refers to the plaintiff's participation in desired sexual activity as being impaired[91] but does not explain how or why that is. There is no other compelling evidence of impairment in the plaintiff's sexual life or activities, and the plaintiff's affidavit material does not refer to any difficulties or limitations of a sexual nature. As the defendant points out, in the plaintiff's first affidavit, there is reference to the plaintiff sleeping on the couch as affecting her relationship with her husband[92] but how so is not explained and the plaintiff's husband did not provide an affidavit.

1. I accept as the defendant contends, the plaintiff's mobility has not been affected by the injury in any significant way. She works full-time as a theatre technician, a job that requires agility and spending most of the working day on her feet. She has some restrictions on going for "longer vigorous walks" but can undertake "power walks" up to 1.5 hours a few times per week. The recent reduction in her walking has been the product of work commitments and coming home after 6 pm - not because of any impairment or pain.

1. There is no evidence suggesting the plaintiff's capacity for self-care and management is affected in any significant way by the impairment. The plaintiff did not refer to any difficulties or limitations in undertaking personal care activities and said in oral evidence that she was independent in these activities.
2. There is evidence that the plaintiff's performance of household and family duties has been affected but not in a significant way. The clinical notes of the plaintiff's attendances at the Melbourne Institute of Plastic Surgery make several references to the plaintiff continuing to undertake domestic tasks in 2021 including cooking, cleaning and painting. The evidence is that the plaintiff continues to undertake most domestic duties and shopping, albeit in a modified way. And while her 31-year-old son undertakes some domestic duties and cooking, the extent and frequency with which he assists because of any limitation caused by the plaintiff's impairment is not clear on the evidence. His affidavit certainly does not provide any detail about the frequency and extent to which he renders assistance beyond that which one would expect of an adult living with his parents.
3. In the end, I agree with the defendant that the plaintiff's capacity to undertake the activities discussed above has not been significantly affected by the plaintiff's impairment.

1. As noted earlier, the plaintiff ceased tenpin bowling and going to the gym, although she had stopped these activities before the crush injury because of a pectoral injury. She no longer undertakes scrapbooking or colouring. Her power walking activity was affected but she resumed some walking of up to 1.5 hours a few days a week, only stopping recently because she arrives home from work in her theatre technician job after 6 pm. I accept that the plaintiff's participation in some of these activities has been negatively impacted by her impairment. I accept that the plaintiff has experienced a loss of the pleasure of doing activities she used to be able to do and is likely frustrated in being unable to do those things.
2. I accept that the plaintiff maintains her friendships and continues to attend family and other social events but on a reduced basis.

1. Some of the plaintiff's post-injury sales roles required a lot of driving, sometimes five to six hours a day. There was some country driving and some driving to various metropolitan Melbourne destinations. The plaintiff's driving appears to have exacerbated the pain she felt. The plaintiff's current role does not involve driving as part of her duties. The plaintiff's present intention is to remain in that role until she retires, but I accept that the plaintiff would struggle if it becomes necessary to return to a sales role which required regular driving and gripping of the steering wheel.

1. The plaintiff says the pain she experiences is a fairly constant background ache with periods of intense pain and limitations that fluctuated with activity and cold. The medical evidence and clinical notes suggest that the fairly constant pain the plaintiff experiences is not so severe or disabling as to prevent her using her hand for daily personal, domestic and work activities. Her current role as a full-time theatre technician is also consistent with this assessment. The plaintiff's work capacity is largely unaffected, and the plaintiff described her background pain is 3 out of 10 on a pain scale of 1-10. She takes over the counter pain medication sparingly and has not sought medical or therapeutic intervention since early 2023.
2. The plaintiff's capacity to participate in and enjoy some of the activities and hobbies she enjoyed before her injury have been negatively impacted and is a real loss. But on the totality of the evidence, and the combined impact of the different matters discussed above, I am not persuaded that residual impairment to the affected fingers of the plaintiff's right hand considering the level of the plaintiff's pain and suffering consequence discussed above meets the "very considerable" test in s 325(2)(c) of the Act. I accept, as the defendant submitted, that when comparison is made with a range of cases, including cases involving impairment of the brain, the spine and larger or weight bearing joints, and cases involving consequences such as pain requiring prescription medication, significant medical treatment, significant sleep deprivation and inability to work or socialise, the plaintiff's impairment falls short of the statutory threshold. I would reach the same conclusion even if I were satisfied that the plaintiff continued to be afflicted by CRPS because there are no additional pain and suffering consequences asserted beyond the discussion earlier.
3. Consequently, the plaintiff's impairment of a body function though permanent, is not serious for the purposes of s 335(2) of the Act because the pain and suffering consequence discussed earlier is not, when judged by comparison with other cases, in the range of possible impairments of a body function, fairly described as being more than significant or marked, and as being at least very considerable.
4. The application for leave to bring proceedings for pain and suffering damages is refused.
5. I will hear the parties on costs.

[3] Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129.

[6] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, 31 VR 1.

[9] Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 26 at [63].

[10] Haden at [12], citing Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at [8]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 ("Sejranovic") at [171]); Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at [142]-[145].

[11] Haden at [12], citing Sabanovic at [142].

[38] PCB 16-17, 22-23; Transcript (T) 31.

[42] T57-59, Defendant's Court Book (DCB) 46-51.

[44] T52- 54, DCB 31.