Serious injury - left hand injury - pain and suffering consequences
Source
Original judgment source is linked above.
Catchwords
Serious injury - left hand injury - pain and suffering consequences
Judgment (3 paragraphs)
[1]
Dealing with the preliminaries, I note that Mr Isaac Layuni is the plaintiff in this proceeding. He makes application to the Court for leave to commence a common law proceeding, on the basis that he has suffered a serious injury to the left hand in an incident that occurred in the course of his employment on 12 April 2021, whilst working as a sandblaster and labourer for a company described as Wharton's.[1]
The injury occurred when his left hand was crushed by pieces of steel, causing lacerations, and crush injuries to the hand, which I will describe in more detail in a moment, but shall refer to, for present purposes, as the incident. There is no dispute that the incident occurred, or indeed, that it has resulted in injuries to the plaintiff's left hand, principally, his left middle and ring fingers. In fact, I could be so bold to say that the parties agree on just about everything, except the result.
The result of the proceeding turns on whether or not the plaintiff has established a very considerable pain and suffering consequence, or alternatively, a permanent scarring and disfigurement consequence within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013. Broadly focussing on the physical injury, for now, the plaintiff must establish that he has suffered "very considerable" impairment consequences, again, in accordance with the well-known legal test. The proceeding itself was conducted in what I might broadly describe as the usual manner, the parties tendered court books that were relatively confined.
The plaintiff's court book contained two affidavits from him, an affidavit from his wife, and one from his cousin, together with relevant medical evidence. The defendant's court book, essentially, was confined to medical reports. In the plaintiff's court book, there was also a link to a YouTube video that was posted by the plaintiff before the incident. Over the luncheon break, I had occasion, with the consent of parties, to watch that video.
The YouTube video depicted the plaintiff strumming an acoustic guitar, with a capo applied to the neck of the guitar, and to my untrained eye, he appeared to be using his left hand, to make basic chords on the guitar as he strummed in what might, in crude terms, be described as a style of music familiar with those who have travelled to the South Pacific. It was, I think, capable of being described, with no offence to the plaintiff, as a relatively amateur standard of guitar playing, not that much turns on that.
Turning then to some further background material, the plaintiff was born in Papua New Guinea, and educated there, before he moved to Footscray, completed his schooling, and since then, has essentially engaged in manual employment. He has two children from a previous relationship, one of whom lives overseas, and one of whom lives in Melbourne. As I will get to in a moment, he now lives with his current partner in South Australia. One of the manual jobs the plaintiff has had was with Wharton's, which was a labouring and sandblasting role, amongst other physical work.
He was doing that work on 12 April 2021, when the incident occurred, when, as I mentioned, his left hand was crushed by pieces of steel. His hand was bandaged, and the plaintiff was taken by a work colleague to the Sunshine Hospital. The admission notes of the hospital are in evidence, and record him presenting at the emergency department with his left hand wrapped, in a distressed condition, and apparently, describing severe pain, including the left middle finger, and left ring finger. There was initial care at the hospital, including washout of the wound, before he returned the following day for surgery.
The surgery appears to have been a further washout, debridement, nail plate removal, and a nail bed repair of the left ring finger.[2] After that initial treatment at hospital, the plaintiff had several sessions of hand therapy. He had a month or so off work before returning to Wharton's on lighter duties, and then getting back to full duties within a short period of time. He remained working, essentially, as I understand it, in his pre injury duties for Wharton's, until he relocated to Adelaide in 2023.
After relocating to Adelaide, he obtained employment with a company, I believe, described as SIS, again doing sandblasting and related duties. The exact evidence about that is a little hard to follow, in the sense of how he got the work, and how many hours he is currently working. The thrust of the evidence, as I understood it, was that the plaintiff works the equivalent of full time hours, including, at times, 10 or 12 hour days. But I note, elsewhere in the court book, there was a suggestion that it is casual employment. In his affidavit, the plaintiff described that work as predominantly being performed in Adelaide, but sometimes travelling to Darwin.
After initial hand therapy, the plaintiff has had no other treatment. In the second of his affidavits, he said, at plaintiff court book 18, in an affidavit sworn 23 February 2026, that he had exhausted all treatment options available to him. The tenor of that evidence was that there had been some prolonged treatment, and the plaintiff had run out of puff, as it were, with no other options available to him. That is not quite right, it seems to me, because after the initial hand therapy, there really has been no suggestion of any other treatment options.
That introduces a topic I wish to say a few brief words about, namely the credit or reliability of the plaintiff. Having observed him in the witness box, he struck me as a pleasant, forthright man, who did his best to answer questions. He was, at times, a garrulous witness, and perhaps that is just consistent with how he understood the question, or what was required of him. In my view, there is no escaping the fact that parts of his affidavits are deficient, but in that regard, I do not mean that to be taken as a negative of him.
There are aspects of his affidavits where his evidence is unclear or incomplete. For example, how he got his current job, whether it is casual or full time, how often he goes to Darwin, or what the relevance of that is, But perhaps more broadly, in his affidavits where he described pain, there is little or no useful evidence about what he means by that. The nuance of that might be lost on the plaintiff, but in the real world, where affidavits are often drafted or settled by lawyers, there is no escaping the fact that there is relevant evidence that I do not have before me, including about his level of pain. That makes it difficult in considering the range of impairment and impairment consequences, including those that come before the Courts, and those that do not, to figure out exactly where the plaintiff fits in in that range.
In any event, staying with his affidavits, in his first affidavit, sworn 18 December 2024, under the heading 'Consequences of injury', the plaintiff described how, when he uses his left hand, he gets numbness and swelling in the middle and ring fingers. He found it difficult to grip with his left hand, which was a problem, requiring the use of both hands. He said if he accidently knocked his middle and ring fingers, he could experience pain, and at times, experienced an electric shock from the scarring on the middle and ring fingers.
He went on to say he can still do tasks around the house, but the tasks involving both hands were more difficult, for example, carrying heavy pots or pans. He described some difficulty with fine dexterity, such as doing up buttons or zips. He said, at times, his sleep was disturbed, because of the injury to his left hand, and his fingers could become numb if he accidentally put weight on his hand. He then also provided some detail about how he loved playing the guitar and singing, he said he would do it almost every day at home, and at church on Sundays.
His father had been a pastor in Papua New Guinea, and he described how growing up, church, music, and singing was a big part of his life. He said, while he could still play the guitar, he found it difficult to play for as long as he used to, because his left middle, and ring fingers became fatigued. He also found it difficult to play chords and move quickly between chords. He described playing the guitar as being like therapy, and how it was a big loss.
The plaintiff swore a second affidavit on 23 February this year. He commenced by saying not much had changed, and he continued to live with pain and disfigurement in his left hand and fingers, but without explaining what he meant by pain. It was in that affidavit where he described having exhausted all the treatment options. He said he treated his injuries with massage and home exercise, and his partner assisted daily by rubbing a lotion and oil and massaging his left hand and fingers.
He described how she did that every morning for around 10 minutes; he did it himself throughout the day. He said most mornings he began his day with Panadol to assist with pain relief, and that helped him complete his work, and mask the pain associated with his sandblasting duties and he described those duties in a little detail. Notwithstanding the Panadol, he said it only gave mild and short-term relief, and he still suffered from numbness, redness, and constant pain on the left fingers. That meant he could not be as productive and effective in his work, and he had to take regular and frequent breaks.
He then described how he did not like to take stronger medication. But not much turns on that, because no one suggests he should. He said he still works in sandblasting, but he cannot do it for longer periods, and how, after a period of time gripping, his hand gets sore. He said he swaps hands, which interrupts his work, places stress on his left hand. He said: "Sand-blasting for 8-10 hours has a big toll on my left hand and fingers".[3]
He described having to wear special gloves, and take a lot of breaks in between. He continued to struggle, but needed to keep working. He then described having an accommodating and understanding boss, who allowed him to take constant breaks throughout the day, as needed. He described how if he lost that job, he was worried he would not be able to complete work duties or sustain a full time job, given his ongoing pain and restriction.
He said he tried not to use his left hand often, switched hands when doing activities, could move his left hand fully without pain, and while he had only injured two fingers, somehow those two injured fingers also restricted movement in other fingers of the left hand. Overall, he said he avoided using the left hand as much as possible, where possible and again, described getting electric shock feelings. He then described some restrictions, perhaps, associated with embarrassment due to how the hand looked, a topic I will return to.
He again said he could not play the guitar as he previously did, and that had been one of the worst things for him, and it really was his passion. He repeated his evidence about growing up as a Christian, how that was important. He then said, "I cannot strum the guitar for longer durations at home or church, and it has a big toll on me".[4] Pausing there, I cannot understand that evidence, because he would strum the guitar right handed, as shown in the YouTube video. He then described how he was trying to relearn the guitar using - or holding it the other way, as some might recall, like Jimi Hendrix used to.
He said that was difficult, and he was nowhere near as good playing it left handed, but he loved it and did not want to stop. He repeated that it made him sad, as he could no longer play guitar at church, and repeated how big a part of his life it had been. He repeated his evidence about his grip strength not being as good, struggling to grip things tightly or make a fist, although, when he commenced his oral evidence, he sought to excise from the affidavit the evidence about making a fist because it was inaccurate.
Broadly, he repeated the restrictions set out in his first affidavit.
Next, the plaintiff was cross-examined about his affidavit evidence, and also about what he had said to the doctors.
In cross-examination he gave evidence about what had been involved, and was still involved in his duties as sandblaster, both after injuring his hand with Wharton's, and more recently, with SIS. He described it as a heavy job, which I think was a fair summary.
He said it was a two-handed job, he accepted that the personal protective equipment included gloves, but later in his evidence, he explained how he wore a latex or different glove, under the mandated protective gloves. He confirmed he is having no treatment, said he dealt with the pain with massage oil, Panadol, and Nurofen.
The plaintiff was then cross-examined about evidence contained in Reasons and Opinion of a Medical Panel,[5] about his partner's cleaning and gardening business. He gave evidence that he is involved, mostly, in the mowing, and perhaps, some gardening, aspect of that business but also gave some evidence about how that business has an NDIS client, and he also helps with that.
That is evidence that was not in his affidavits. And as I understood it, that occupied some or all of the weekend, after working during the week. In that context, it was put to him that the left hand injury did not cause any difficulty at work or at home, and he said he did have difficulty. He was then taken to some of the medical histories. It was put to him that, consistent with what he had said to at least one doctor, whilst he could not play much guitar after the initial injury, over time that had improved. He said it had not increased.
He then said if he played the guitar for more than two minutes, he had an increase in left hand pain. He then described having taken up bass guitar, and piano and keyboards, and how he was trying to fill the void, as it were, from the loss of guitar by playing different instruments. There was some confusion in his oral evidence about how long he plays bass guitar or keyboards for. As I understood his evidence about the keyboards, he can play for about 10 minutes, or perhaps longer, and then he would have a break and return to it.
In cross-examination, he confirmed that he still goes fishing, and he also gave evidence about how he is now assisting at his step-son's basketball team, involving himself with assisting at training. He gave evidence he still does some pleasurable activity such as beach walking. He said his sleep was okay.
In re-examination about the guitar, the plaintiff said it was a really big let-down for him that he could no longer do it like he did before the incident. He explained how he speaks several South Pacific dialogues, and he loved teaching those dialogues, singing, and playing the guitar, and being involved at church.
He explained how, before the incident, he would play at church for an hour or so, as well as playing at home, and what a big part of his life music was. About that, I note that he has moved to Adelaide, and his evidence, broadly, was a little vague about just how involved he is at the church now, although he said he goes on weekends, or whether he could have the same musical involvement in Adelaide that he did in Melbourne. I am not sure, on the evidence, whether he could participate with singing, or somehow or other, engage more fully, but broadly, he still does attend church.
He gave some evidence about his use of Panadol, he gave evidence about using two sets of gloves at work, and how every two hours or so, he takes a break for 15 or 45 minutes. He confirmed, in re-examination, he did something like 8 to 10 hours of sandblasting. Pausing there, it seems to me, that any responsible workplace would allow someone doing sandblasting, which is heavy, physical work, to have a break at least every two hours or so, for 15 or 45 minutes. And in fact, they would seem to be the mandated morning, afternoon, and luncheon breaks.
I will get to the balance of the evidence in a moment, but it is convenient, I think, in the context of the plaintiff's affidavit, and oral evidence, to mention the parties contentions. The defendant accepted that the plaintiff had suffered an injury, which perhaps could be said to be of some consequence, but it said it did not rise to the level to meet the narrative tested of very considerable.
The defendant placed much emphasis on the case of TTB SMS Pty Ltd v Reading ("Reading").[6] The defendant highlighted Mr Reading's injury, which was ultimately found by the Court of Appeal to not meet the threshold of a serious injury. The defendant highlighted the nature of the injuries and surgeries that Mr Reading had and his return to activity and how there was some similarity with the case currently before me.
Next, the defendant highlighted what might broadly be called what is retained, including the capacity for full time heavy work, to help out at his son's basketball team, to fish, to attend church and to participate in the second job on the weekends. The defendant returned to Reading and said there was some similarity in the present case, because the plaintiff has no pain in his left hand at rest and has some activity based pain.
The defendant, anticipating the guitar would be said to be a major issue for the plaintiff, highlighted that he was an amateur guitarist, could still play at a reduced level and to some extent had filled the void by taking up other instruments. The defendant also highlighted a medicolegal opinion from Mr Dixon that had noted the plaintiff's guitar playing had become less compromised over the recent period. The defendant highlighted the lack of any real evidence relevant to the topic of serious injury contained in the lay affidavits relied on by the plaintiff. The defendant then took me through some of the medical evidence.
About the case based on scarring or disfigurement, the defendant did not have to say much because I indicated I did not consider that the plaintiff's injury would meet the test.
In response, the plaintiff submitted the fact is that he has pain every day and is engaged in a physical job which causes him pain. He said unlike Reading, the narrative of pain set this case apart from it. He highlighted the ongoing deformity to his left ring finger, the ongoing symptoms, hypersensitivity, loss of grip strength in the left hand, and difficulty with heavy tasks.
About the guitar, it was emphasised how this really was his great love before the incident, and whilst it might not have been completely taken away, it was certainly significantly restricted. The plaintiff highlighted his evidence about playing the guitar for two minutes now before he gets increased numbness and pain. Whilst he might have tried to find other means to maintain his musical interest, even those are impacted by the left hand injury.
The plaintiff highlighted how he would be playing more music if his hand was not injured. He highlighted some interference with sleep if he rolled onto his left hand, as well as interference with some domestic tasks such as lifting heavy pots and the like. About the medical evidence, he placed some reliance on the description of neuropathic pain given by the medico-legal witness Dr Sullivan.
About the claim based on scarring, the plaintiff made some limited submissions, no doubt because of the preliminary indication from me about the claim based on scarring and disfigurement. In short, he said it could meet the serious injury threshold.
About the scarring and disfigurement, I pause to say that I had occasion to look at the plaintiff's hand by approaching him in the witness box. My observation of the left ring finger was that it was slightly raised and bent slightly to the left from the last joint of the left ring finger and I consider as a reasonable example of that is the photo at defendants court book 35.
I note in this proceeding under the WorkCover legislation, there is a limited ability to take into account the emotional consequences of a physical injury, but I do not think much turns on that, because on my assessment, bearing in mind what was said by the Court of Appeal in Garcia v Transport Accident Commission,[7] that claims based on scarring and disfigurement do not lend themselves to the type of analysis perhaps expected in claims based on a physical injury. On my assessment of what I saw in the witness box, I do not consider that the plaintiff has made out a claim based on scarring and disfigurement.
Turning now to the claim still to be resolved, and that is the claim based on physical injury.
First, I also note the plaintiff's wife, Ms Rose Limbawi, provided an affidavit dated 3 March 2026.[8] I allowed the plaintiff to rely on that affidavit, despite the fact it was filed outside the time set out in the Court's timetable orders.
There is not much useful evidence in Ms Limbawi's affidavit, because unfortunately Ms Limbawi provides significant hearsay evidence and very little direct evidence. But I note that she gives some relevant evidence, such as the plaintiff trying to avoid using his left hand for household chores, gardening or lifting heavy items. She said that was something she now needed to assist him with, although I have trouble understanding that, for a man who can do sandblasting. Further, his own evidence, in fact, was that he was assisting her in her gardening business.
In her affidavit Ms Limbawi said the plaintiff could no longer play the guitar. That is open to challenge. Perhaps what she really meant is no longer play it like he did before the incident. She then described the importance of that activity to him because of friends and his involvement at church. There is not much other useful evidence in her affidavit.
In a similar theme, the plaintiff tendered an affidavit from his cousin, Mr Mollina Kombo.[9] Mr Kombo confirmed the plaintiff being significantly enmeshed in what he described as, 'our culture', and within community. He gave some evidence about the plaintiff's mood that is not relevant for the task before me.
Mr Kombo said he knew the plaintiff is currently working as a sandblaster and the current employer was supportive and accommodating, but he does not give any evidence other than hearsay evidence about his knowledge of that. He said he also witnessed that the plaintiff can no longer play the guitar, described him as an amazing guitarist, which I am not sure I would go that far based on the YouTube video, but also in any event, saying the plaintiff cannot play the guitar is not consistent with the plaintiff's own evidence.
Dealing then with the medical evidence, I will do this as quickly as I can, given the time, the plaintiff relied on a medico-legal report from Mr Damon Thomas dated 3 February 2026. He set out the history of injury, his diagnosis and the history of treatment, none of which is in dispute. He described the fractures to the middle and ring fingers and said he did not believe there was any increased risk of degenerative change.[10]
Mr Thomas said the plaintiff had ongoing fingertip sensory disturbance, cold intolerance, hypersensitivity and reduced hand function. He noted the plaintiff had a capacity for work, demonstrated by the fact that he was still working as a sandblaster, and said his productivity was mildly reduced because he had adjusted how he performed certain tasks, but he thought his work capacity would remain stable long term.
He said the plaintiff remained at increased risk of re injury because of increased fingertip sensation, hypersensitivity and cold intolerance, although precisely what he meant by that is a little unclear. He said the plaintiff was limited for highly repetitive, forceful or dexterous manual tasks. He said the plaintiff's capacity was mildly limited for heavy or repetitive manual work. He went on to say the plaintiff's self-care was unaffected, driving was unaffected, hand function was reduced due to sensory disturbance and hypersensitivity of the fingertips, and domestic tasks requiring sustained grip or repeated manual activity were affected.
But he said recreational activities including basketball, hiking and fishing could still be performed but with reduced capacity.
Next is Dr Richard Sullivan, an anaesthetist and pain specialist. In a medico-legal report dated 4 February 2026, he described the presenting symptoms as chronic symptoms in the left hand, predominantly affecting the third and fourth fingers. The main symptom being pain, described as being particularly worse in the morning, especially in cold weather, with numbness, tingling sensations and intermittent electric shock-like pains in the fourth finger, often triggered by sudden knocking or pressure on the finger or rolling in his sleep.
Dr Sullivan said the plaintiff's symptoms are aggravated by activities involving pressure such as holding the high pressure nozzle for sandblasting. He said, to the relieve the symptoms, the plaintiff took Panadol as needed, applied baby oil or other emollience. He found relief by taking frequent breaks during his work day.
Dr Sullivan went on to say the plaintiff had returned to work as a sandblaster but with significant modifications. But I am not sure that is a fair statement based on all the evidence. He also said the plaintiff had an understanding employer who allowed frequent breaks every two hours for 10 to 15 minutes and the use of specialised gloves and strapping. He inspected the plaintiff's hand and described, in his words, a clubbing-like appearance of the third and fourth digits.
Dr Sullivan went on to diagnose chronic neuropathic pain of the left hand affecting the second through fifth digits, secondary to a crush injury. He described it as a significant and permanent injury of the left hand. He then said though that the plaintiff had achieved a good functional recovery, allowing him to return to demanding manual work, but was highly dependent on specific modifications and an accommodating employer.
Dr Sullivan said the chronic neuropathic pain, sensitivity and physical deformities are likely to be permanent, the prognosis was guarded and the plaintiff was at increased risk of developing degenerative change in the affected joints. I wonder whether his expertise to proffer that opinion is one that is not the same as Mr Thomas, who is a specialist hand surgeon.
Dr Sullivan went on to, again, diagnose chronic neuropathic pain. He said, by reason of the left finger injuries alone, the plaintiff did not have a realistic capacity to return to his pre-injury role as a warehouse labourer on a permanent, sustained and reliable basis. He said that without the specific modifications, the plaintiff cannot really use the left hand. He said the risk of re-injury would be high without these supports.
At the risk of repetition, the plaintiff did return to his pre-injury role with Wharton's, as I understand it, without specific modifications and, overall, I am not sure there are specific modifications in the current job. Therefore, I do not attach much weight to Dr Sullivan's opinion about work capacity.
Next is a Medical Panel Opinion provided in December 2024.[11] The Panel took a history that the plaintiff had some residual problems, some persistent numbness of the left, middle and ring fingers, and needed to swap hands every 15 minutes when using high pressure hoses. Apparently, he told the Panel he did not experience tingling or any other sensory alteration in the two digits but the fingers ached in cold weather. Apparently he told the Panel he did not have any sleep disturbance due to paraesthesia or pain and denied morning stiffness.
The range of movements of the left, middle and ring fingers, as well as fine motor function, were described by the Panel as unimpaired and that the plaintiff had denied swelling, colour changes, temperature changes and the like. Apparently he told the Panel he was independent in terms of personal care and he could cope in his current job as a sandblaster. That he did cooking, mowed the lawns and did gardening and he and his partner shared the shopping and cleaning. It was here that the plaintiff described his partner's business.
The Panel noted that he was not having any treatment. He told the Panel he took simple analgesia such as Panadol and Deep Heat if he was in pain after, for example, a 10 hour shift at work. He estimated that he used 20 Panadol in two weeks.
Next is a medical opinion from Associate Professor Romas given on 28 May 2024 as part of an impairment assessment. There is limited relevant evidence in that, other than a history given that the plaintiff had returned to work within two weeks of the incident.[12] Eventually resumed his normal job and worked without issues for the next two years.
It was noted that the left hand was painful in colder weather. The plaintiff was working as a sandblaster with only minor difficulty holding the hoses and no treatment is required. Pausing here, Associate Professor Romas also noted something that, in my view, is highly relevant that I should mention and that is the plaintiff is right hand dominant. In any event, in respect to the injury, Associate Professor Romas said the plaintiff had adapted well to it.
Finally, are reports from Mr Peter Dixon, a hand and plastic surgeon to whom he was referred for assessment by the defendant. Mr Dixon provided reports dated 7 May 2025, which was after a telehealth assessment, 29 January 2026, after a face-to-face assessment and then a third report dated 25 February 2026, after being asked to clarify some matters from his earlier reports. I propose to deal with his evidence in short compass as follows because I do not think there is much between him and Mr Thomas.
But at defendant court book 45, Dr Dixon said sensation was reduced in the fourth digit of the left hand but normal in the other digits. He described a range of motion. He said the plaintiff had, since the incident, improved left hand function, satisfactory grip strength. He had suffered fractures of the third and fourth digits here without significant deformity. He had a reduced deformity of the fifth digit and that, prior to the injury, Mr Layuni played the guitar, that had been affected, but he had been less compromised over the recent period. For what it is worth, broadly, I consider that to be a reasonably fair summary of things.
Turning then to the result.
First, I must consider the range of impairments and impairment consequences and not just those that come before the Courts.
Second and perhaps related, it is relevant to consider not only what the plaintiff has lost but also what he has retained.
Third, again at the risk of repetition, I consider the plaintiff to be a likable fellow and did his best in the witness box. But there are some aspects of his affidavit evidence that I consider to be incomplete or inaccurate.
Fourth, doing the best I can, based on a consideration of all the evidence, the plaintiff has no pain in his left hand at rest and no sensory disturbance. But with activity, using his non-dominant hand, he does have pain at times.
As to the level of pain, it is impossible to say because there is no direct evidence about that. Dr Sullivan described it as chronic in the sense - I understand that to mean long-term, but I do not understand that, for argument's sake, necessarily means severe.
Fifth, whatever the level of pain, it does not prevent the plaintiff from doing very heavy work, sandblasting; it does not prevent him from the work in his partner's business, helping out at basketball, or doing things around the house. I accept that it impacts his ability to play the guitar and that being involved in his Papua New Guinean community and church is important to him, but, equally, he is still involved, to some extent, in those activities.
Sixth, having seen the YouTube video, I am not sure that his guitar playing could be elevated to what might broadly be capable of being described as a big ticket item.
I accept playing guitar is an important and relevant consequence to him and, to some extent, he is impaired. I also accept that, to some extent, repetitive gripping increases symptoms and the plaintiff may have difficulty with daily activity that requires repetitive gripping, using his left non-dominant hand. But the evidence is not that he cannot or does not do things because of impairment of grip.
It could be said that there are some cases that are clearly serious and some that are clearly not and, along the range, there are some that fall somewhere in the middle for consideration. Perhaps it could be said the plaintiff's pain and suffering consequences fall somewhere in the middle of the range. But on this occasion, I accept the submissions on behalf of the defendant, that there are some striking similarities in this proceeding with the circumstance before the Court of Appeal in Reading.
Whilst Reading is not binding and each case must be considered on the merits and it is the consequences to an individual plaintiff that must be assessed - and as I said during oral addresses, a different plaintiff with the same consequences as Mr Reading on a different factual scenario might have a very considerable consequence. But the striking similarities between this case and the facts in Reading cannot be ignored.
Relevant to this case, the fact is that the plaintiff works full-time in heavy employment, without any real treatment and with no evidence of needing time off work. Even if he is a stoic man and someone who gets on with it, the fact he is so engaged in heavy work is a relevant consideration.
When all those things are synthesised and considered, on my assessment of the very considerable test, the plaintiff falls below it. He may have impairment consequences that can be described as marked or even significant. They are certainly not trivial, but, equally, I do not consider them to be very considerable.
For the reasons given, the plaintiff's application for serious injury is refused. I will hear from the parties as to consequential orders.
[2]
[1] Perhaps more correctly being Wharton's Labour Hire Pty Ltd (Action Alliance).