Hendrickson v Victorian WorkCover Authority [2025] VCC 1849

"'Serious injury' means-

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

(b) permanent serious disfigurement ... ."

1. The impairment of body function relied upon is the left limb, in particular, the left little finger.
2. In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase "serious injury", by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff's employment with the employer on or after 1 July 2014. As set out in s325(1) of the Act, the impairment of the body function must be "permanent".
3. The plaintiff must prove the elements of her application on the balance of probabilities.
4. In relation to an injury which relates to the impairment of a body function, by s325(2)(c) of the Act, it is the "consequences" of the bodily impairment which produce, relevantly, the "pain and suffering", which must be "serious" - that is, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of body function results in relevant "consequences" that are "when judged by comparison with other cases in the range of possible impairments fairly described as being more than significant or marked, and as being at least very considerable". This has been referred to as the "narrative" test and it has been held that this task is largely a question of impression or value judgment.[5]
5. In determining the application, the Court:

(a) must assess whether the injury is a "serious injury" as at the time the application is heard;[6]

(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[7]

1. Section 325(2)(h) of the Act requires me to disregard all psychological or psychiatric consequences in determining an application which relates to a physical impairment.
2. In determining the seriousness of the "consequences" of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the impairment arising from the injury the subject of this application and the range of possible impairments, losses of body function or disfigurement, as the case may be.
3. The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined.
4. In addition, the plaintiff relied upon medical reports and other materials contained within the Plaintiff's Court Book, which was tendered into evidence.[8] The defendant did not tender any documentary or other evidence. I have read all of the tendered material. In this Judgment, I will refer only to the relevant parts of the tendered material.
5. In reaching my conclusions in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[9] and Grech v Orica Australia Pty Ltd & Anor.[10]

1. In her affidavits and during her viva voce evidence, Ms Hendrickson gave evidence about the following consequences to her, of the injury to her left little finger:

(a) she is presently forty-three years of age;[11]

(b) she experiences ongoing, constant pain and sensitivity in her left little finger. She also constantly experiences a "pins and needles" type sensation and numbness. The pain and sensitivity are particularly bad when it is cold. She regularly takes Nurofen or Panadol;[12]

(c) the pain she experiences in her left little finger can be a sharp or burning type of pain. The scar and top of her left little finger are tender to touch and also feel rough and bumpy. Occasionally the scarring on her left little finger becomes itchy, especially in the hot or cold weather;[13]

(d) she finds her left little finger ugly and embarrassing. She is self-conscious about the scarring and look of her finger. She has a scar at the top of her left little finger that runs across it. The scar is wide. On either side of the scar, the skin is pink. She has two "little scabs" on either end of the scar. It looks like two little horns. To her it looks like "a snake". She hates looking at it.[14] She finds that these scabs get caught on things, such as when she is washing her hair or drying herself with a towel.[15] Sometimes she tries to remove these little scabs, but that creates holes in her fingers, which can become infected;

(e) her sleep quality has been impacted by the injury to her left little finger. Particularly in the colder months, she often wakes up in the early hours of the morning and finds it difficult to get back to sleep;[16]

(f) she has recurring nightmares where she dreams that she has lost all her fingers. When this happens, she wakes up startled and in a panic and checks to see that her hand is okay;[17]

(g) the sensitivity she experiences in her left little finger impacts her ability to do most tasks. While she can still do most things, she finds it more difficult now. She is constantly wary of bumping her left little finger and increasing her pain;[18]

(h) she feels like she has lost her sense of grip and strength in her left hand. She tends to mostly use her right hand when she is doing things. She tries to avoid using her left hand if she can. She also tries to be much more careful when she is using her left hand as she tries to avoid bumping it and aggravating the intense pain in her left little finger.[19]

(i) she still can do housework around the house but tends to take more care doing it and takes much longer to do it. She now does the housework in stages. Prior to the accident, she had no problem doing the housework and did it all in one go.[20] For tasks around the house that require the use of two hands, she uses her left hand as "more of a guide" and does not grip with her left little finger, due to its sensitivity. She said that for example, when holding onto a vacuum, mop or anything else, she sticks her left little finger out "like a posh English person drinking a cup of tea" to avoid anything touching it.[21] Before the accident, she did not have to think about how she used her left hand or worry about bumping her little finger. Now she feels like she is constantly aware of it, embarrassed by it and has to be more careful and cautious using her left hand and her left little finger;[22]

(j) she adopts the same process when using both hands to perform her duties at work. If she needs to pick up boxes, she sticks out her left little finger. If she feels like her left little finger is going to touch the box at any time, she instinctively pulls her hand out of the way and drops the box;

(k) when using a computer, she does not use her left little finger when typing, because of the sensitivity she experiences. Tapping her left little finger on the keyboard is enough to cause her more pain. She finds these things "incredibly frustrating";[23]

(l) when she goes shopping, she tries to carry the groceries or shopping bags in her right hand. If she does use her left hand, she tries to protect her left little finger by sticking it out.[24] When she is driving, she mainly uses her right hand to steer. If she has to use her left hand, she avoids using her little finger, as bumping it causes increased pain;[25]

(m) prior to the accident, she was regularly going to the gym. She tried to go back to the gym after the accident, however, found it too difficult at the time. She has since re-signed up to go to the gym again and is trying to do so, although she finds it difficult to grip the bars and other equipment. She has bumped her left little finger on a number of occasions which causes her "intense pain";

(n) prior to the accident, she enjoyed going on leisurely bike rides a few times a month. While she has gone bike riding since the accident, she finds it much less relaxing and less enjoyable. Gripping the handlebars and going over bumps jolts her left hand and causes her increased pain. For this reason she has only been out on a few rides since the accident;[26]

(o) she is very self-conscious of her hand around other people and tries to hide it. She does not like people knowing about the amputation. If she is out in public, she tries not to put her hands on the table where people will be able to see it;[27]

(p) prior to the accident, she would regularly have her nails done at a beauty salon. After the accident, she had her nails done out of town, but was paranoid that the nail technicians were talking about her hand amongst themselves. She just does not go anymore;[28]

(q) when she first started going out with her new partner, she did not tell him about her left little finger for about three months, as she was embarrassed by it. She has since told him that she finds the injury ugly and embarrassing. She has to remind him to be careful not to grab or bump into her left little finger, as when that happens, it is very painful.[29] Because her children do not like the look of her finger, they now refuse to hold her hand. This makes her sad;[30] and

(r) she does not like taking medication and tries to avoid it if she can. When she accidently bumps her left little finger or uses her left hand in a way that she did not mean to, if the pain increases to sharp burning pain, she takes more Panadol or Nurofen than usual;[31]

1. The plaintiff was treated after the accident by her general practitioner, Dr Daniel De Villiers. The plaintiff relied upon four reports from Dr De Villiers, dated between 23 September 2022 and 22 October 2025.[32] In his reports, Dr De Villiers confirmed the existence of a traumatic crush amputation injury to the distal phalanges of Ms Hendrickson's left little finger. He said the loss of the distal digit is permanent and irreversible.[33] He confirmed that she still suffers from "scabbing" at the suture line as well as ongoing tingling and sensitivity. He was of the opinion that this will be a permanent feature of her injury. He observed that the amputated finger is clearly noticeable and is causing the plaintiff ongoing distress and embarrassment. He noted that the injury impacts her social and domestic lifestyle due to the ongoing sensitivity of the stump at the amputation site. He described this impact as "mild".
2. The plaintiff relied upon the opinion of a Medical Panel dated 10 June 2024.[34] In that document, the Medical Panel confirmed the existence of a traumatic amputation injury to the plaintiff's left little finger and noted that she experienced "tingling and odd sensations" at the end of her left little finger. The Panel noted that the tip of the finger was also tender and painful, particularly when the plaintiff knocks that finger. At the time, it was noted that the plaintiff had reported that the strength in her left hand was "okay". She described the pain in her left little finger to the Medical Panel as "'a needle-like pain on the tip of her finger'". She said that she forgot about the pain during activity. She noted that the edges of the scar on the tip of her finger "scabbed up" on either side and formed two little spicules of scab that required removal every three to four months. She noted that she has to then treat these areas with antiseptic cream because the wounds at those sites become open and susceptible to infection. When this happens, she told the Medical Panel that she wears gloves and has to cover the tip of her finger with bandages.
3. The Medical Panel Opinion recorded the plaintiff's report that her left little finger is sensitive and has significant pain if she drops something on it or knocks it against something.[35] She reported being aware of her injury when she touches her face with her hand or if she holds something with her left hand. She told the Medical Panel that she is independent in her activities of daily living and self-care, but has difficulty using her left little finger for many activities including walking her dog, playing with balls, playing with her children, lifting boxes, attending the gym and using weights at the gym. She told the Medical Panel that she is able to drive her car normally. She qualified this during her viva voce evidence, when she explained that she has difficulty holding the steering wheel with her left hand and holds her left little finger out to protect it from the vibration through the steering wheel, and also from being bumped.
4. The Medical Panel noted that the plaintiff is woken up "occasionally" during sleep, by the sensitivity in the tip of her little finger. Under cross-examination, the plaintiff said that this happened once or twice per month and in colder months, up to four times per month. It was noted in the Medical Panel Opinion that the plaintiff had said to them that her injury is "not a big disability ... just bad luck". Under cross-examination, she explained that what she meant by this is that her injury is not as bad as what some people suffer; that is, she did not end up in a wheelchair.
5. The Medical Panel noted that her left little finger is one centimetre shorter than the corresponding right little finger. This was assessed as amounting to an amputation of 30 per cent of the left little finger. The Panel noted a transverse scar across the tip of the left little finger consistent with surgery. The Panel noted that the scar was sensitive to light touch. The tip was described as "slightly bulbous with two small spicules of dry skin present both on the medial and lateral aspects of the tip of the left little finger".[36] The Panel also noted evolving Herberden's nodes of the distal interphalangeal joints, consistent with osteoarthritis. Neurological sensory examination revealed total transverse sensory loss of 50 per cent of the little finger length from the proximal interphalangeal joint to the amputated tip. Reduced movement of the distal interphalangeal joint of the left little finger was noted. Grip strength of the left and right hands was noted to be equal.
6. The plaintiff relied on an independent medico-legal report from Mr Ash Moaveni, consultant orthopaedic surgeon, dated 16 July 2025.[37] In that report, Mr Moaveni said that the plaintiff currently experiences ongoing pain and altered sensation in the tip and remaining pulp of the left little finger, experiencing difficulty with gripping and lifting. The pain was rated as 2 out of 10 on average, but it was noted that when exacerbated, plaintiff said it could be up to 9 out of 10, for example when the tip of the left little finger makes contact with a hard object. Mr Moaveni reported restrictions in many aspects of the plaintiff's activities of daily living including attending to personal hygiene, household chores, shopping, communication in the form of using a computer, gardening, driving, sleep and social and recreational activities. He noted that she experiences cold intolerance where the finger can change colour in cold environments. He thought that as a consequence of her injury, the plaintiff was likely to be precluded or restricted in relation to activities involving pushing, pulling, lifting or twisting; repetitive or prolonged use of the left little finger; fine and manipulative use of the left little finger, and manual dexterity. He thought these restrictions would continue for the foreseeable future. He thought the consequences of the plaintiff's injury had now stabilised. He thought the restrictions he had outlined would mean that the plaintiff remained restricted in her activities of daily living for the foreseeable future. He thought her prognosis for resolution of her injuries was "guarded".[38] He said she would need to continue to modify her activities to accommodate her symptoms and avoid exacerbating her pain into the future.[39]
7. The plaintiff relied upon a report from Associate Professor Abdul Khalid, consultant psychiatrist, dated 5 July 2025.[40] The content of that report corroborated all of the plaintiff's evidence and the content of the other medical reports in relation to the extent and consequences of her injury.
8. The plaintiff relied upon eight photographs of the injuries to her left little finger taken at different stages, including immediately following the amputation injury, through the healing process and as at October 2025. All of these photographs and the other relevant medical reports were tendered into evidence as part of the Plaintiff's Court Book.[41]
9. There is no dispute between the parties that the accident occurred and that the plaintiff suffered an amputation injury to her left little finger in that accident, as a result of her work.
10. Both parties agreed that the only issues before this Court are:

(a) in relation to the application under paragraph (a) of the Act, to find whether the consequences to the plaintiff of the injuries which she suffered in the accident satisfy the "very considerable" test; and

(b) in relation to the application under paragraph (b) of the Act, to find whether the disfigurement from which the plaintiff presently suffers, satisfies the definition of "gross disfigurement" under the Act.

1. I note that the defendant did not submit that the plaintiff's credit was impeached in any way, although there were certain matters in relation to which it became apparent the plaintiff's evidence in her affidavit material differed slightly from what she told various doctors and the Medical Panel. The plaintiff freely made concessions of this nature under cross-examination. Overall, I consider that she was a truthful and credible witness and an accurate historian. Having observed her while giving evidence, I also formed the view that she is an extremely stoic person, especially in relation to her commitment to continuing to work and her attempts to live her life as normally as possible, albeit with the constant need for modifications of nearly every task in which she engages, in order to minimise her current pain levels and to avoid inadvertently exacerbating that pain.

1. The details of the occurrence of the accident are not in dispute.
2. Having considered all of the evidence from the plaintiff's treating doctors and medico-legal experts, I am satisfied that as a result of the accident, the plaintiff presently suffers from the consequences of an injury to her left little finger, in the form of a traumatic crush amputation of the distal phalanges.

Is the compensable injury "permanent" for the purposes of the Act?

1. Having considered the relevant reports, and in particular the reports from Dr De Villiers[42] and Mr Moaveni[43], I find that the plaintiff is likely to suffer from the consequences of the injury she sustained in the accident, for the foreseeable future. Given this, I find that the injury is "permanent" for the purposes of the Act.

Are the consequences of the accident "serious" for the purposes of the Act?

1. The weight of the evidence satisfies me that the consequences to the plaintiff of the injury she suffered in the accident, are as follows:

(a) permanent loss of the distal phalanges of her left little finger;

(b) resultant and permanent sensitivity in the remaining stump;

(c) ongoing, constant pain in her left little finger, together with a constant experience of a "pins and needles" type sensation and numbness. The pain and sensitivity are particularly bad when it is cold;

(d) the need to take Nurofen or Panadol regularly;

(e) a diminution in sleep quality. Particularly in the colder months, she often wakes up in the early hours of the morning and finds it difficult to get back to sleep;

(f) recurring nightmares where she dreams that she has lost all her fingers. When this happens, she wakes up startled and in a panic and checks to see that her hand is okay;

(g) the need constantly to protect her left little finger so she does not increase the pain that she experiences. This interferes with many activities in the plaintiff's life;

(h) an impact on her ability to do most tasks due to the sensitivity she experiences in her left little finger. The tasks that are affected include performing housework, performing her duties in her workplace, using a computer, going shopping, going to the gym, riding a bike and driving her car;

(i) the need to be constantly wary of bumping her little finger and inadvertently increasing her pain;

(j) self consciousness in relation to the appearance of her left finger in social situations, which forces her to try and "hide" her left hand;

(k) an impact on her ability to interact as usual with her children. Her children will no longer hold her left hand as they do not like how it looks;

(l) the need to manage the constant presence of rough or sharp parts of the skin on her left little finger. These rough or sharp parts of her left hand get caught on things, for instance when she is washing her hair or drying herself with a towel. When this happens, it causes her increased pain;

(m) periodically, the pain she experiences in her left little finger can be a sharp or burning type of pain. Occasionally the scarring on her left little finger becomes itchy, especially in the hot or cold weather.

1. I find that each and every one of these consequences is a consequence suffered by the plaintiff as a result of the injury to her left little finger, suffered in the accident.
2. In Haden Engineering Pty Ltd v McKinnon,[44] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff's experience of those consequences, as well as the disabling effect of the consequences on plaintiff's physical capabilities (including capacity for work) and enjoyment of life.[45] Part of the process is for the Court to assess the nature and extent of the consequences which the plaintiff experiences. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgement. The weight to be attached to the plaintiff's account of the consequences experienced will depend upon an assessment of the plaintiff's credibility.[46]
3. I have already made observations about the plaintiff's demeanour and presentation in Court. In particular, I have found that the plaintiff was a truthful and credible witness. I have also found that the plaintiff is stoic in her approach to managing her injury, particularly in the form of her commitment to her work and her attempts to live her life as normally as possible, albeit with significant and constant need for modification of everyday tasks.
4. The fact that the plaintiff has been prepared to keep working and has been trying to live her life as normally as possible, despite the consequences of her injury, is not a matter that tells against the granting of her application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[47]

"... it would be unfortunate, and in my view wrongheaded, if ... such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury."

5. As was observed in Hooley v Transport Accident Commission:[48]

"As we have already said, the age at which the applicant suffered his permanent injury is also a significant matter. As this Court said in Stijepic v One Force Group Australia Pty Ltd, when judging the consequences for a particular applicant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced ... All things being equal, impairment consequences which an applicant will have to put up with for decades might well be judged more serious than the same consequences which another applicant may have to put up with for a much shorter period of time."

6. In Kelso v Tatiara Meat Co Pty Ltd,[49] the Court of Appeal observed that:

"... 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."

7. An analysis of the evidence clearly demonstrates that many aspects of the plaintiff's life have been adversely affected by the consequences of the injuries that she suffered in the accident.
8. In particular, the plaintiff endures permanent, daily pain. Everyday she must protect the stump of the amputated finger during every activity, both professional and recreational, in order to avoid the pain which would occur if local trauma was to be caused to that stump.
9. The risk of sharp pain, together with the constant "pins and needles" type pain caused by the repair to the amputated stump, causes significant discomfort and some restriction in the plaintiff's ability to work to her full capacity. It has also impacted on her ability to perform her usual activities of daily living and permanently interfered with her ability to engage in recreational activities which she used to enjoy.
10. I find that the plaintiff is likely to experience each of these for many years to come.
11. Having regard to this, and by reason of the findings which I have made about the consequences from which the plaintiff suffers as a result of the injury to her left little finger, I am satisfied to the requisite standard, that those consequences are fairly described as being "very considerable".

The application under sub-paragraph (b) of the Act

1. While counsel for the plaintiff also pressed the application under sub-paragraph (b) of the Act, given the findings I have made in relation to the pain and suffering consequences of the plaintiff's injury, I am not required to decide whether the plaintiff's injury to her left little finger satisfies the definition of "serious injury" for the purposes of sub-paragraph (b) of the Act.

1. Taking into account all of the evidence, I am satisfied that the pain and suffering consequences of the plaintiff's injury to her left limb, in particular, her left little finger, are "serious", and satisfy the relevant test for "serious injury" as set out in the Act. Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering in respect of the injury to her left little finger, suffered on or about 23 September 2022.
2. I will hear the parties in relation to the question of costs.

[5] See Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]

[7] See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]

[8] Pages 6-17, 23-26, 29-69 and 71-78 of the Plaintiff's Court Book, was marked as Ex P1

[44] [2010] VSCA 69; (2010) 31 VR 1

[47] [2008] VSCA 260 at paragraph [3]

[48] [2019] VSCA 263 at paragraph [51] (footnote omitted)