Serious injury - scarring - pain and suffering consequences
Source
Original judgment source is linked above.
Catchwords
Serious injury - scarring - pain and suffering consequences
Judgment (3 paragraphs)
[1]
Judgment: Leave granted to commenced proceedings for pain and suffering damages.
[2]
This is an application for "serious injury" by a now 44‑year‑old married lady who suffered a burn injury in the course of her employment as a chef on 27 March 2020.
There is no argument that an incident occurred on 27 March 2020 when she was carrying a pot of boiling water and rice, somehow losing her balance and causing boiling water to be poured onto her left arm, or perhaps more accurately, her left upper arm.
There is no argument that the plaintiff has been left with consequences from that incident. The argument in this proceeding is a relatively narrow but a nevertheless important one namely whether the plaintiff has suffered a "serious injury".
Specifically, the plaintiff relied upon a claim for "serious injury" in one of three ways. First, she claimed she had suffered a permanent serious impairment or loss of body function to the left arm. Second, she claimed she had suffered permanent serious disfigurement, and third and finally, that she had suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
Whether it is about the claim based on the physical injury, the scarring or psychiatric, the legal principles are not really in dispute in this proceeding and are well‑known.
For the purpose of this proceeding, the plaintiff swore three affidavits and tendered those affidavits along with medical reports and photographs of the scarring. On the other hand, the defendant tendered medical reports and some other clinical records in its court book.
The parties were represented by counsel and each made submissions. In addition, the plaintiff presented for an appropriate short and sharp cross‑examination. I say appropriate deliberately given the relatively confined issue in dispute.
In addition, I had the opportunity to approach the witness box and observe the plaintiff's left arm for an assessment of the scarring.
In respect to the plaintiff's affidavit evidence, she has set out there how the incident occurred and restrictions that she has because of her arm injury. She was challenged broadly in cross-examination about the extent of restrictions in the spirit of the Court considering what is retained as well as what is lost.
The thrust of her affidavit evidence and indeed her oral evidence was that the plaintiff continues to engage in a range of day‑to‑day activity including some cooking, and perhaps more relevantly, looking after small children in her current employment in a childcare centre.
She described a feeling of tightness in the arm, perhaps referred to as cracking, and some pain that I understood to be activity‑based. But equally she did not suggest that her pain is at a level where there are some days she cannot work or she cannot do activities.
About what the plaintiff now does to manage the pain, the short answer is she does not really do anything. She has not had any general practitioner attendance for her arm injury now for several years and she has not seen the consultant dermatologist since approximately mid-2023.
She was cross‑examined about her use of over‑the‑counter painkilling medication and perhaps her evidence about that was a little difficult to follow in the sense she had first suggested she had taken Panadol approximately every other day effectively since the incident but when her history to the Medical Panel in 2024 was put to her, she explained there was a period when she was not using over-the-counter medication because she was using some form of, as I understand it, natural medicine for an unrelated condition. I think at the end of the day the course of history is not changed in this proceeding by the plaintiff's use of medication. Whatever medication she uses, it is not at a level where it is on prescription.
Turning very briefly to the medical evidence, following the incident, the plaintiff was treated by Dr Alka Tyagi at the Koornang Road Medical Centre. In a report of 19 October 2023,[1] the doctor set out the history of injury and how the plaintiff had suffered the burn injury that had taken, in the doctor's words, eight weeks to heal. The pain was still there and it took another four weeks to settle. The doctor describes discolouration and hypopigmentation of the forearm in the report and the referral to the dermatologist in November 2020.
Dr Tyagi said that the burn had healed and the pain had settled, but cosmetically, the forearm was still discoloured and caused concern. The GP said that at the last visit on 21 February 2023 the plaintiff was considered to be able to work in her full capacity and future work would not be impacted.
The treating dermatologist is Dr Rebecca Nguyen who saw the plaintiff first - there might be a typo in this, but according to her report, on 13 July 2020,[2] in any event, she described the injury, the plaintiff in her words having "significant scarring, with hypopigmented scarring" which at that stage was slowly improving but was still sensitive and itchy. In a letter to Dr Tyagi dated 8 May 2023,[3] she had described the pigmentation of the left forearm after the burn injury and at that stage suggested using a cream and another cream, Hydroquinone.
Relevantly in the report which I think should be dated 13 July 2023,[4] Dr Nguyen effectively suggested that there was not much more that could be done. The only other treatment as I understand it was an attendance on a psychologist in May of 2020. The plaintiff had a brief attempt to return to work with the pre-injury employer and subsequently at another restaurant or café; since then she has retrained into childcare, and since 2024 has worked as an educator in a childcare centre where she continues to work full-time.
In that context, this claim is one where the plaintiff seeks the leave of the Court to commence a proceeding for pain and suffering damages only. Therefore, there is no reliance in the broad on pecuniary loss consequences, although I can take into account in the more limited sense the plaintiff's loss of something that she enjoyed, that is the loss of a career that she enjoyed; and I note in her affidavits she describes a love of cooking.
In any event, going back to the medical evidence, the plaintiff tendered a report from Dr Darrell Nam dated 30 April 2025.[5] In particular, he said "on examination there was hyperpigmentation of the skin of the lower arm and forearm measuring about 27 cm in length and involving three-quarters of the circumference of the limb with the maximum width being 18 cm at the upper forearm". [6] He said the scarring was variously pigmented and the skin surface scarred and roughened, and has lost the normal patina of undamaged skin. He described photographs appended to his report as a true representation.
In answer to specific questions at number 3, Dr Nam said there was "permanent scarring of the lower arm and forearm with a fine stippled scar of the skin where the epidermis of the outer layer of the skin had been destroyed".[7] He said the scarring had "left hyperpigmentation and some slightly regular scarring where there had been a delay in healing".[8] That was "represented by various patchy areas which show slightly raised blotches over the anterior forearm", and that there were "some areas of hypopigmentation accentuating the stippled appearance".[9] He also noted the plaintiff describing some altered sensation in the skin of her forearm, best described as dysesthesia.
In answer to question 6 at plaintiff court book 70, Dr Nam noted the plaintiff required protection of her left arm from ultraviolet light, sun exposure and any abnormal heat source as it caused significant discomfort. He said she had some difficulties with activities of daily living, particularly sleeping, and some activities such as shopping and carrying loads, cleaning, and home maintenance. He also described some restriction in her clothing choices.
At 71 of the plaintiff's court book in answer to question 9 he noted the plaintiff had tried to be re-employed as a chef but did not have confidence due to the previous injury. He said, "I believe she does not have the capacity to be employed as she was before the injury. It might be possible for her to engage in some form of duties as a chef but she would be required to be protected from any adverse heat and work in only cold food preparation."[10]
Next, relevantly, is a report obtained by the defendant from Mr Damon Thomas, a plastic and reconstructive surgeon. In his report - perhaps I should have said correctly, it was obtained by the claims agent for an impairment assessment. But relevantly at defendant court book 18 is Mr Thomas' report of 18 April 2024. He notes the burn having healed without any surgery. He said current issues of the left arm were itchiness and a feeling of tightness, especially around the elbow on extension. He said the plaintiff tended to cover the area with clothing when she was outside the house and was sensitive about the appearance of the scarring, which affects her from a psychological perspective. He noted treatment had involved dermatology input with topical creams that had now ceased and the plaintiff then applying Bio-Oil at night.
He noted the plaintiff was a right-hand dominant chef who was no longer undertaking that role due to loss of confidence working in the kitchen, and she was avoiding hot environments. Overall, in the analysis of findings, he said the overriding diagnosis here is that of a hot water burn scar to the left forearm which is mixed depth in nature. He said, "total body surface area is approximately 4%. Post burn scarring is present with pigmentation change with a combination of hyperpigmentation and hypopigmentation, and a feeling of tightness around the elbow".[11]
Mr Thomas said he would expect the prognosis to be relatively stable. He said, the plaintiff's "occupation is affected. From a physical point of view, she had difficulty being exposed to hot environments and surfaces, which as a chef is challenging".[12] He then made some comments about the plaintiff's mental health, which I consider to be outside his expertise. He then gave an impairment assessment which for the purpose of this exercise is not strictly relevant.
I note for completeness that the plaintiff tendered a report from Dr Nathan Serry, consultant psychiatrist dated 26 May 2025, and the defendant tendered a report from Dr Dennis Handrinos, consultant psychiatrist, dated 9 April 2024. I will come back to those in a moment.
Dealing with the subparagraph (a) case, in order to establish the leave of the Court to commence a proceeding for pain and suffering damages the plaintiff must satisfy the well‑known "very considerable" test.
In considering the physical consequences to the plaintiff, I must exclude the psychological consequences. Next, I must also consider the range of impairments and impairment consequences and not just those that come before the Courts.
There is no doubt that the plaintiff suffered a very nasty burn injury. There are some photographs in the plaintiff's court book that no doubt would be relied upon with much enthusiasm by plaintiff counsel if the case was being opened to a jury. But of course it is the assessment of "serious injury" as at today that I must concern myself with, not the photographs or the no doubt significant pain the plaintiff was in at the time of the injury.
Fortunately for her, with a relatively limited path of treatment, essentially wound care, rest and the application of topical creams, within a relatively short period of time, the plaintiff's physical injury had improved to the point where really her main ongoing concern now is some hypersensitivity and a feeling of tightness.
The plaintiff has been able to return to a range of domestic, social and recreational activities. She works full time and has no treatment although true it is the dermatologist opined there was no treatment for her physical condition.
The plaintiff's use of medication is not daily. Whilst there was, for want of a better word, a joust about that in cross-examination and perhaps some uncertainty, at its highest, from time to time, she needs to use over‑the‑counter medication.
The treating general practitioner considered the plaintiff was fit to return to pre‑injury duties and indeed, to some extent, so do the treating plastic surgeons. One of the concerns appears to be the plaintiff's reaction to working around heat which appears to be an emotional concern that has to be excluded for the assessment of a serious physical injury.
My assessment of the plaintiff's physical injury, is that it perhaps could be capable of being described as marked or significant, but I do not consider that it gets to the well‑known test of "very considerable" and in that regard I prefer the submissions of the defendant.
Turning next then to the claim based on permanent scarring and disfigurement. As was observed by the Court of Appeal in Garcia v Transport Accident Commission ("Garcia"),[13] claims based on scarring and disfigurement do perhaps not lend themselves to the type of analysis that those do based on physical injuries.
That is because of the peculiar aspect of scarring and disfigurement and perhaps also because of the relatively limited number of claims by comparison to those based on physical injury.
I note the important distinction was raised by counsel for the defendant, namely this is a claim for a work injury and so the psychological consequences must be excluded unlike the situation in Garcia.[14] But nevertheless I think the comments made by the trial judge and the Court of Appeal in Garcia are apposite namely that to some extent claims based on scarring and disfigurement are very much based on one's reaction to it.
I had the opportunity to observe the plaintiff's scarring for myself. The photographs contained in the plaintiff's court book and appended to the recent affidavit, which showed the pimple or blistering that she gets from time to time, were taken with the lens of the photographer being quite close to the plaintiff's arm and perhaps give a more heightened impression of the scarring than when it is observed at a distance of a metre or so in the witness box.
But nevertheless, on my assessment, it was obvious. In that theme it was obvious that the plaintiff's left arm looks different to her right. There was scarring of significant size as measured by Dr Nam. In other words, this was not a small patch or a patch of disfigurement confined to one portion of the upper arm. Effectively, all of the forearm was, in my words, mottled.
True it is that there was no, for want of a better phrase, gross scarring, such as what might be seen if there had been some form of trauma requiring surgery, but equally there was obvious change in the pigmentation of the plaintiff's left upper limb.
I note the plaintiff describes a range of impairment consequences from the scarring such as hypersensitivity, the preference to keep it covered and difficulty with heat, both sunshine and heat when working in a kitchen area.
Some of those consequences may overlap a bit between the psychological and the physical and perhaps may overlap between the physical injury claim and the scarring claim. At the end of the day not much turns on that because my assessment is that the scarring is clear, significant and obvious. It is almost a situation where the only way of evaluating these things is to ask yourself, how would I like it? The answer is I would not like it.
In my view, the plaintiff's scarring does satisfy the test of a permanent serious disfigurement. There is no suggestion that it is going to improve. The plaintiff is still what I consider to be a young woman, only 44 years of age, she is going to have to wear those scars for the rest of her life in an area of her body which I consider to be obvious. The fact it might be capable of being covered up does not detract from my opinion that it is permanent, serious disfigurement.
Finally, then the claim based on the psychiatric response, bearing in mind that the permanent mental or behaviour disturbance or disorder must meet the further adjective of severe, the plaintiff had an understandable emotional response, but equally, she has not had any treatment apart from five psychological sessions.
She does not take any medication. Many of her complaints are about embarrassment rather than what might be a pure psychiatric diagnosis. I also note the opinion of Dr Serry that the plaintiff's psychological response might be improved by further treatment which she has not had.
All things considered, in my view, the plaintiff has not demonstrated a permanent severe mental or permanent severe behavioural disturbance or disorder.
In conclusion, the plaintiff has satisfied the test based on the scarring and leave will be granted to the plaintiff to commence the proceeding for pain and suffering damages arising out of the incident at work on 27 March 2020.
I will hear from the parties as to the wording of the necessary costs order to give effect to my decision.