Lacy v VWA [2025] VCC 1126

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

1. The defendant does not contest that the plaintiff has suffered impairment from his work injury and that the impairment is permanent. However, the defendant says the consequences of the impairment do not satisfy the test for the grant of a certificate for pain and suffering under paragraph (a) of the definition of serious injury. A like contention is made by it as regards the claim pursuant to paragraph (b) of the definition.
2. Two affidavits have been made by the plaintiff in support of his application. The first is dated 9 July 2024. The plaintiff said he was born in 1995. The injury is to his left hand. The plaintiff deposed that he is right handed.
3. As a result of the left hand injury, the plaintiff said he has been left with a 'huge, nasty red scar running in a U-shape across the top of his hand'.[1] It can turn bright red in the cold weather. The scar has developed itches. It is sensitive to heat.
4. The plaintiff is employed in a hotel kitchen here in Warrnambool. He said that if he is pulling trays out of the oven at work, the scar can sting. He said he also suffers from aching in the area of tendon damage. He said his left hand feels weaker than his right hand.
5. The plaintiff said that the affected area on his hand is tender and made worse if he accidently knocks his left hand, particularly in cold weather.
6. The plaintiff said he is extremely conscious of the look of his left hand and where possible, will try and hide it. For example, if he is sitting at a table, he will have his right arm up and his left arm down. He described people 'forever asking him about what happened when they see my hand'.[2] He said looking at his hand, reminds him of the accident which causes upset. I observed that when giving his evidence, the plaintiff held his left hand inside his trouser pocket.
7. He described the aching he experiences as an 'irritating stinging type sensation which is present 'most of the time, particularly when used'.[3] When he takes a hot shower, 'he can really feel it on my left hand, it is more sensitive'.[4]
8. In his second affidavit made 18 July 2025, the plaintiff deposed to continuing to work and reside at The Vic Hotel in Warrnambool. He said that in November 2024, he commenced an apprenticeship to become a chef. It is a 3 year apprenticeship, which requires him in addition to working in the kitchen at the hotel, to attend TAFE on Mondays. He works in the kitchen at the hotel generally between 10.30am and 2.30pm, and then between 4.30pm/5 pm to 8.30/9pm.
9. The plaintiff deposed that due to lack of dexterity with his left hand there are many tasks which he finds difficult and take him more time to perform, even with regular breaks and by shaking his hand to try and relieve symptoms. These tasks range from chopping, which he finds 'very difficult to kneading pizza dough and more intricate tasks such as making certain types of pasta such as tortellini and various pastries'.[5] Moreover, when he is performing a heavy lifting task with his left hand, such as taking heavy pots off the stove or lifting heavy trays out of the oven, he experiences 'a strange stretching sensation along the scar, particularly in the area where it runs along the knuckles of my left hand'.[6] He said he has all but given up attempting to open tight jar lids, and he relies on a knife to crack the top and break the seal to make it more manageable. Mundane activities such as using cutlery can also be awkward and clumsy. He has difficulty when it comes to turning on closed tight taps with his left hand and reverts to using his right hand when required.
10. The plaintiff deposed that the scar turns very red in the cold weather or if he knocks his hand, and when this occurs, he experiences a strange tingling sensation and that it does not look 'particularly nice and invariably where possible, he will try and hide it'.[7] Although the scar does not turn red with heat, he said his left hand is more sensitive to heat compared with his right hand, especially when it comes into contact with steam, something he cannot avoid working in a kitchen as he is frequently working out of a bain-marie and exposed to steam.
11. Because of the look of his hand, he said he does not enjoy socialising as much as he used to and it now consists of going into the hotel approximately once every 2 weeks to have a drink with acquaintances, but not much more.
12. The plaintiff deposed that the left hand injury affects his ability to play computer games, especially games with high actions per minute. To be adept at them, he explained he is required to perform a lot of actions per minute, which means very frequent use of both the keyboard and mouse, anywhere from about 50-60 actions per minute. He said he cannot use the fingers of his left hand on the keyboard repetitively over prolonged periods of time because of the lack of dexterity in same and so he doesn't play as much as he used to or would like to. He said he is fat-fingering on the keys, hitting the wrong keys with his left hand fingers.
13. Although the plaintiff does not currently own a car because he has little need for one, living and working as he does out of the same establishment, however, at the time of the accident the subject of this application, he did own a car. He said he was confident he would have had difficulty driving that car today as it had manual gears and it would prove hard to change them up and down because of the left hand injury.

1. Given the defendants primary ground of opposition, namely that the plaintiff's stated consequences do not meet the threshold test for the grant of relief, it is unsurprising that the cross-examination was not of any import. It is of no disadvantage in the understanding of the decision I have reached that I have not found it necessary to address the cross-examination, but I note that the plaintiff's evidence on material matters was not challenged by the defendant.

1. Dr Fong, a Plastic Surgery Registrar at St. John of God Warrnambool, on behalf of Dr Masters, a Plastic & Reconstructive Surgeon in a report dated 28 May 2025 wrote that based on reviewing the plaintiff's notes and records, that the plaintiff had sustained an injury to his left dorsal hand from an industrial sandblaster on 13 October 2022. A sandblasting injury occurred through his welding gloves, resulting in damage to the skin over the dorsal radial aspect of the left hand just proximal to the metacarpophalangeal joints. He underwent surgery on 13 October 2022 under Dr Masters at South West Healthcare. Intraoperatively, he was found to have significant contamination of the wound over a three-centimetre area that was debrided down to the extensor tendon. There was a 5% abrasion of the extensor indices tendon that was debrided without any repair required. There was no extension or penetration into the metacarpophalangeal joints. A rotation flap was designed to repair the defect, and he was discharged home on the same day. The report by Dr Fong noted that the plaintiff was reviewed in clinic with a wound nurse and a hand therapist. His wound was healing satisfactorily and he was provided with range of movement exercises and wound care advice. She noted that the plaintiff did not return for his 6 week follow-up appointment. The plaintiff said he thought this was because he was unable to afford to do so.
2. In a medico legal report dated 20 June 2025, Dr Damon Thomas, Plastic and Reconstructive Surgeon, wrote that the plaintiff is right-hand dominant and was working as a sand blaster at the time of the injury that resulted in a laceration and damage to the skin with necrotic tissue present which had to be debrided in theatre in October 2022. Excision and debridement was undertaken. There was a 5% division of the extensor indicis tendon. A rotation flap was used to intercept the skin and resurface the wound. No further surgeries had been undertaken or planned. Dr Thomas reported that the plaintiff's complaints are of cold intolerance in the hand. The scar is also tender on pressure. The plaintiff is concerned about the cosmesis of the hand and keeps the area covered. The plaintiff had not received scar treatment and no topical agents are applied. The plaintiff did not apply sunscreen during UV exposure.
3. Dr Thomas noted that at the time of the injury the plaintiff was working as a right-hand dominant sand blaster. He did return to work temporarily, however, was let go after he broke a saw blade. He works full-time 'unrestricted as a chef'.[8] His hobbies before and after the accident include gaming. He can still do gaming but has reduced dexterity on the left hand. Undertaking domestic tasks are unaffected.
4. Dr Thomas noted a single scar: 90 mm x 11 mm which curves over the dorsum of the hand around the ulnar border and then distally to the metacarpal and pain in the joint areas. The scar is hypopigmented. There is some tethering present and concavity. The scar is intrinsically painful on direct pressure.
5. Dr Thomas said that the plaintiff's:
   • Self-care is unaffected;
   • Communication is unaffected;
   • Physically, he is intrinsically unaffected;
   • Functionally, he is unaffected;
   • There is some reduced sensation in the scar itself;
   • There is reduced dexterity with left hand function;
   • He does not drive for his own reasons due to a car accident in which he was involved and not due to the work injury;
   • Sexual function is unaffected;
   • Sleep is generally affected, although from a mental health point of view, and not due to the left hand injury; and
   • Socially the plaintiff does not interact with his friends and does not get out the house much.
6. Dr Thomas considered the prognosis of the injury to be stable and would neither improve nor deteriorate.
7. Dr Thomas explained that the plaintiff feels that he would have reduced capacity for anything that involved finesse and fine dexterity and of being precluded from cold environment work.
8. Dr Anstee is a Plastic and Reconstructive surgeon who provided an IME dated 31 March 2025 at the request of the defendant. Dr Anstee said the plaintiff suffered an abrasive removal of the skin and subcutaneous tissue from the dorsum or back of the second metacarpophalangeal joint of the left hand from his injury. The extensor digitorum and the extensor indicis tendons were not divided. A wound debridement was carried out and the area then covered with a rotation flap raised on the dorsum of the left hand.
9. Dr Anstee assessed the surgery carried out on the plaintiff as having been performed 'very well indeed and that both short and long term prognosis are very good'.[9] He said that there is no present medical treatment, and he doubted that any future treatment will be required. He said in his opinion, the plaintiff has had an excellent result from his surgical treatment and his present range of movement in the left index finger is near normal. He reported that there is 'no or minimal adverse effect on the plaintiff's ability to undertake employment, domestic or recreational activities'.[10]

1. Ms Cameron submitted that on a consideration of all the evidence, the plaintiff had failed to discharge his onus of satisfying the narrative test under the definition of "serious injury" whether under paragraph (a) or paragraph (b) of s325(2) WIRCA.
2. Ms Cameron referred to Haden Engineering Pty Ltd v McKinnon ("Haden"),[11] in which Maxwell P set out various principles to which recourse is invariably had in an effort to assist in evaluating the "pain and suffering consequences" in a given set of circumstances:

(a) disturbed or interrupted sleep;

(b) mobility;

(c) cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);

(d) capacity for self-care and self-management;

(e) performance of household and family duties;

(f) recreational activities;

(g) social activities;

(h) sexual life; and

(i) enjoyment of life.[12]

1. Ms Cameron submitted that by reference to Haden, and the indicia referred to, that the plaintiff does not satisfy them but, in any event, he does not rely on most of those identified by the Court, including mobility, cognitive functioning, capacity for self-care and self-management or sexual function. There is limited evidence of a restriction in the execution of domestic activities. There is no loss of recreational activities but a reduction in the dexterity with which computer gaming can be performed. There has been a decline in what would appear to have been an already limited social network or activity. Any interference to sleep is not injury related.
2. Ms Cameron submitted that in sum total, the defendant's position is one of that whilst the plaintiff's injuries are not trivial, and they are permanent, they are not "serious", and it would be erroneous to consider them "at least very considerable" and "more than merely significant or marked".
3. Ms Cameron also relied on TTB SMS Pty Ltd v Reading ("Reading"),[13] a decision that concerned a finger injury in a serious injury application and, by reference to the reasoning of the Court of Appeal, counsel submitted that it reinforced the submission that the plaintiff should not be regarded as having suffered a serious injury.

1. Mr Brett submitted in brief form, that the plaintiff's affidavit evidence and account of consequences had not been challenged at all in cross-examination and, therefore, I should accept his account and his credit, and in doing so, I should be satisfied they meet the threshold level for the grant of a certificate for pain and suffering pursuant to paragraph (a), and separately under paragraph (b) of the definition. Mr Brett summed the position up on behalf of the plaintiff in these terms at transcript 32:

So I'm not going to go much further, I will just say his work's affected, his hobbies are affected, his appearance is affected, his social life is affected, you put all of that together and you meet the statutory test.

I'm not saying you waltz past it in a breeze but you meet the test.

1. I am satisfied that the plaintiff gave a credible account of himself. I accept his evidence regarding his injury. He is a somewhat reserved 30 year old man. He has applied himself and his taking steps to secure a future in a filed he enjoys.

1. I commence by noting that in Haden, at paragraphs [14]-[15] under the heading "The disabling effect of pain", the learned President said:

"As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff's physical functioning, and interferes with the plaintiff's enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): '... [I]mpairment is concerned with what has been lost. But the significance of what has been lost ... may be informed, to an extent, by what is retained'.

As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which 'an area of work which [the plaintiff] enjoyed has been closed off to [him or her]'".

1. I am satisfied that the plaintiff retains considerable functional use of his left hand, but there is sensitivity, and occasions when he experiences sudden pain when accidentally coming into contact with another surface or object or heat.
2. I find that in consequence of the injury the plaintiff has lost a degree of dexterity with fine manipulation he previously enjoyed. Managing the use of cutlery, for example, is more difficult, as is chopping, and loosening jar tops that now require more considered thought and application than was the previously the case. All of this, will in all probability, accompany the still relatively young plaintiff over the balance of his life.
3. Post injury, the plaintiff proved able to return to his pre injury duties after a stint of alternative duties, and before being dismissed from employment for reasons unconnected with his injury. Of course, consistent with authority, from a legal standpoint, a return to work is not a preclusion to the grant of relief but one of the many considerations to which I may have regard.
4. Mr Lacy is able to work full time. He has embarked on work as a chef, as he has wanted to do, and is undertaking an apprenticeship in this field. He is working full time and there was no evidence to suggest, for example, any particular adaptations are required or are in place or have been requested to discharge his employment.
5. There are a number of functions that the plaintiff described that he is now required to execute differently both at work and at home, and doing so, causes him an understandable degree of frustration. Consistent with authority, frustration may sound as an element of pain and suffering consequence in terms of a loss of enjoyment of life from the physical impairment to the left hand. I have taken this into account in my overall assessment and doing so does not offend against established principles, but rather it has a capacity to inform pain and suffering consequences of his physical injury and an assessment of seriousness.
6. Nonetheless, I consider that when the consequences of injury are taken together, the plaintiff does not satisfy the narrative test, in that the pain and suffering consequences for the impairment of the left hand are not, when judged by comparison with other cases in the range of possible impairments, that which may fairly be described as being "more than significant or marked" and as being "at least very considerable."

The reach of Reading's case and its utility in a paragraph (a) claim

1. In my judgement, one must be careful in distilling too great an analysis from Reading's case, or in approaching a case for the grant of a serious injury certificate for an injury by way of competing tabulations from other decided cases. The Court of Appeal in Reading concluded that the facts as found by the trial judge did not reach the requisite level to justify a finding of a serious injury. That is as far as the decision travels. The Court of Appeal did not suggest that it was enunciating any new or novel principle of law. The value of the decision, as with Haden, is in the judgement brought to bear by the Court of Appeal in assessing the statutory requirement of 'seriousness' in a given case against a set of facts and the guidance it can offer in like cases as to whether the narrative test for serious injury is satisfied as demanded by the statute. Nonetheless, it is appropriate that I address the decision of Reading in some more detail given its reliance by the defendant.
2. In Reading, the plaintiff had three fingers affected, namely a middle finger that was dislocated, the ring finger and the little finger was surgically repaired with metalware permanently inserted.
3. Following his injury, Mr Reading was off work for four days and returned to work on modified duties. He had difficulty with some manual aspects of the work. He stopped work after six months due to a company re-structure. He subsequently commenced new employment at a ten-pin bowling centre where he became a full-time facilities manager for about seven years, and then returned to spray painting and supervisory work. He could paint for short periods with his right hand. A couple of years later he commenced another spray painting job as a leading hand.
4. Mr Lacy first returned to light duties before resuming normal duties prior to being terminated for reasons unrelated to his impairment.
5. Mr Reading, experienced intermittent pain and cramping in the right hand, mainly in the little and ring fingers. There was numbness, spasms, pins and needles in the affected fingers. There was permanent curling of the affected fingers along with an inability to move them properly. There was no movement in the little finger. There was significant clawing and constructive shortening. There was reduced fine movement and strength in the right hand. Mr Lacy's impairment is not of that order, although I do not suggest that in order to succeed, it must be. It is, as I stress, a consideration among many.
6. Mr Lacy has occasions when he experiences a sensation of pain when any pressure is applied to the affected area or heat is applied or it is knocked. It can be itchy. It can become more reddened in cold weather.
7. Mr Reading was not receiving treatment. Mr Lacy is not undertaking treatment, and this would seem explicable because of the consensus of medical opinion that he has achieved maximum recovery.
8. Mr Reading's personal care was unaffected. There is no indication that Mr Lacy is affected in such a manner.
9. Mr Reading experienced difficulties with writing, tying shoelaces, holding cutlery, putting things in a pocket or a drawer. The are some instances of similarity for Mr Lacy.
10. Mr Reading lost his ability to play golf and water-ski. He was still able to fish but less frequently. Mr Lacy did not depose to any reactional or sporting pursuits prior to the accident that he has lost, other than a suggested doubt on his part about the capacity to surf, but which he has not participated in since school. The evidence is confined to his reduced dexterity, and hence enjoyment, he derives from gaming. His facility to type on a keyboard for study purposes as part of his apprenticeship was also referred to but not emphasised as a consequence of particular moment. I recognise that a reduction in the enjoyment derived from what was already a limited range of activities for the plaintiff can sound significantly.
11. However, for all the reasons I have set out, I am not satisfied that the plaintiff has discharged his burden of proof under paragraph (a).

1. I am not satisfied the plaintiff has discharged the burden of proof in establishing a serious injury under paragraph (b) of the definition. I am not satisfied that the plaintiff has established, as a matter of probability, satisfaction of the narrative test when the disfigurement is assessed. Whilst undoubtedly there is a disfigurement, it must of course, also satisfy the requirement of being "serious" within the meaning of the WIRCA.
2. For a claim for disfigurement under paragraph (b), the WIRCA requires that seriousness is determined by reference to the consequences to the worker of the disfigurement with respect to pain and suffering when judged by comparison with other cases in the range of possible disfigurements, and that when such exercise is undertaken it may fairly be described as being more than significant or marked and as being at least very considerable. In Ingram v Ingram ("Ingram") at 438,[14] Callaway JA observed in respect of s93(17)(b) of the Transport Accident Act 1986 that:

"...it is important not to read para (b) in isolation. 'Permanent serious disfigurement' within the intendment of the statute must be such disfigurement as bears comparison with such injuries as serious long term impairment of a body function, severe long term mental illness and loss of an unborn child."

1. Whether the statement in Ingram should be applied in workplace injury proceedings as opposed to transport accidents, has not been definitely answered as far as I am aware. The words "as the case may be" in s325(2) of the WIRCA suggests to me, that the requisite comparison of injuries is to be confined to comparison within the class of injuries relevant to the particular application and not by reference to injuries in other classes. In any event, irrespective of the possible differences in approach by way of the appropriate comparison, my decision in this application, would not have been different.
2. I have reached my conclusion having regard to the objective characteristics of the disfigurement, and the observations I made of it. I note that in Transport Accident Commission v Garcia ("Garcia"),[15] the Court of Appeal said, that in relation to the nature of a claim under (b), a set of written reasons such as was delivered by the trial judge would not necessarily dilate upon the matter in detail or to the extent perhaps more likely warranted in a paragraph (a) case. However, that is not to say that cogent and explicable reasons are not required and, to that end, I have reached my conclusion for the following reasons.
3. First, there is of course, in my process of decision-making, an aspect that represents a value judgement in determining it in the range of disfigurements as is required of me under the WIRCA.
4. Second, I recognise that the sufferer of the scar on a leg or arm, for example, may be able to clothe it, but that the hand is different and the inability to cover it is more problematic given the plaintiff's work as a chef.
5. In Garcia, at first instance, his Honour, Judge Misso addressed the claim made under paragraph (b) of the definition of serious injury under the Transport Accident Act 1986 and he identified a scar that presented some 15 cm in length on the applicant's left upper arm. His Honour described its presentation in vivid terms and said:[16]

"I was invited to view the scarring during the plaintiff's evidence-in-chief. What I observed was a scar running from just under the shoulder joint and extending down the front of the plaintiff's left bicep. The scar is very obvious. It was 3 or 4 millimetres wide, as best I could estimate. The scar was reddish in colour."

1. Third, I have had regard to the scar's location (it is apparent and in an area that is obvious). The scar tissue is a source of sensitivity and can be attendant with instances of pain.
2. Fourth, I had the opportunity of viewing the hand closely in Court. Overall, the hand appeared more purple in the affected area than red, although the hearing was held in August, when the cold might be thought to occasion inflammation. However, at least on this day, it appeared flatter and less raised than the visual depiction suggests in photographs earlier taken and tendered as part of the medical evidence.
3. Fifth, the scar as I say, is evident but not unsightly. The plaintiff's sense of it, and it being evident to him, and a desire by him to keep it discreet from view when out and about, is something I acknowledge, however, I am not satisfied that the plaintiff has a permanent serious disfigurement under paragraph (b).

The combination paragraph (a) and (b) submission advanced by the plaintiff

1. I should address a submission made by Mr Brett. In opening address he submitted this at transcript 2-3:

Your Honour, as you're aware this is a frank incident on 13 October 2022 where the plaintiff...sandblasted his own hand and we rely upon (a) and (b), and what I was saying is that we would submit that if Your Honour were not satisfied that the disfigurement met the mark, it is still a consequence which can be considered in the consideration of limb (a).

1. Ms Cameron responded briefly on the basis that it was the defendant's position that sub-paragraph (b) is a separate consideration to sub-paragraph (a) and cannot be subsumed into paragraph (a) and added to the consideration of seriousness in the event that sub-paragraph (b) does not satisfy the threshold.
2. Mr Brett returned to the matter in final address. He made the following submission at transcript 29:

In respect of (a), first of all, we would submit although it doesn't have to be decisive, that the scarring and associated consequences can also be considered, if they are not decisive under (b) they can be factors to be considered under (a). I don't have authority, I don't know of any authority on that point.

1. At transcript 30, Mr Brett amplified his submission in this way:

the scarring is an impairment of the skin of the hand, the impairment relied upon here is an impairment of the hand which includes the skin. So any effects of the disruption of the skin of the hand fall to be considered as part of the impairment of the hand as well as being entitled to be separately considered under limb (b). The statute directs you to disentangle (a) and (c) but it has no similar prohibition with respect to (a) and (b).

What we say is that in considering whether the consequences meet the statutory test you effectively amalgamate them, add them up, if you like, and one of the things you can have in that addition, and that's addition, can be the scarring and its consequences which you may have already determined don't meet the criteria in and of themselves under (b), but nevertheless have a role to play in the overall consequences of the injury in considering it under (a), that's how we would say it comes into play.

1. Ms Cameron referred to the authority of Hollis v Transport Accident Commission ("Hollis"),[17] a decision of his Honour Judge Saccardo. There the claim was brought for a permanent serious disfigurement. The disfigurement the subject of the application involved that associated with a scar located on the inner thigh of the plaintiff's left leg. In the course of acknowledging the entitlement of a claimant to adduce additional evidence for the purpose of establishing the nature and permanence of a scar, his Honour said at [4] that:

"...it is equally clear that the purpose of the Act is to differentiate between three categories of injury and that it is inappropriate, in an application brought under paragraph (b) of the definition of "serious injury" in s.93 (17), to take into account evidence which is relevant to the consequences associated with an injury appropriately categorised under either paragraph (a) or paragraph (c) of that definition".

"Equally, I am of the opinion that organic symptoms experienced by the plaintiff in association with the presence of his disfigurement may be taken into account if they are appropriately characterised as being an expected consequence of the disfigurement but not if they are a product of a physical injury which, by itself, produces an impairment of body function."

1. His Honour concluded his analysis in these terms at [11]:

(i) Insofar as the plaintiff seeks to rely upon evidence as to the sensitivity associated with the surface of the scar itself, he is entitled to do so;

(ii) Insofar, however, as the plaintiff wishes to rely upon symptoms which arise by reason of the lesion which has been occasioned to the obturator nerve of his left thigh which results in dysaesthesia in the distribution of the medial part of the nerve, I am of the opinion that this injury is appropriately characterised as falling within the category of organic injuries, the consequences of which are required to be assessed pursuant to the provisions of sub-s.(a) of the definition of "serious Injury" in s.93(17), rather than being appropriately categorised as a consequence of the plaintiff's disfigurement. For this reason, I am of the opinion that in deciding this matter I should exclude any evidence as to the consequences associated with that injury."

1. First, although I am not bound by a decision of this Court, I give the judgment of a former highly experienced judge of the Common Law Division due regard. Second, however, unlike the application before me which proceeded on paragraph (a) and (b), in Hollis, the application was limited to paragraph (b), and his Honour's comments should be read in that light. Third, there is not to my knowledge, or that of counsel, appellate authority on the point advanced by Mr Brett. Fourth, the separate impairments recognised in each of paragraph (a) and (b) of the statutory provision must have some intendment.
2. In any event, it has not proved necessary for me to decide the point, because in bringing my consideration to bear on the assessment of seriousness of the disfigurement under paragraph (b), I have had regard to the plaintiff's evidence of sensitivity and the like that he described due to the scar itself together with the other evidence I have referred to. Also, as regards the claim under paragraph (a), I have given consideration to and made reference to the plaintiff's account of his response and reaction to the appearance of the scar, and to the consequential functional effects caused by the physical injury to the skin of the left hand by way both the tendon damage from the disfigurement in the scarring to the surface of the skin and the pain and suffering experienced by the effect of contact with it. However, as I have endeavoured to explain, I am not persuaded the submission advanced by Mr Brett advances the satisfaction of the narrative test and alters the decision.

1. Having approached the consideration of the application from the perspective of the guidance afforded by relevant authorities and having assessed and weighed all of the evidence, and taking into account the helpful submissions of counsel, I am not satisfied that the plaintiff has proved on the relevant standard of proof that he suffers a serious injury for the purposes of and within the meaning of paragraph (a) or paragraph (b) of the definition of serious injury.
2. The application is dismissed. I will hear the parties on the form of final orders and costs.

[1] Exhibit P1, Plaintiff Court Book ("PCB") 6 [27].

[9] Exhibit D1, Defendant Court Book ("DCB") 3.

[11] [2010] VSCA 69; (2010) 31 VR 1.

[13] [2020] VSCA 203.

[14] [1996] VicRp 77; [1996] 2 VR 435.

[15] [2015] VSCA 225.

[16] Garcia v Transport Accident Commission [2015] VCC 140 [8].

[17] [2011] VCC 502.