Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12

**1 I agree with Ross AJA, for the reasons which his Honour gives, that this appeal should be allowed.

**3 On 29 June 2001 the respondent, Tyrone Kelso was working in the appellant's abattoir when the tip of his right thumb came into contact with a bandsaw and was cut off. He was taken to the Western General Hospital where a plastic surgeon, Mr Ashton, reattached the tip of his thumb. He was discharged from the Western General Hospital on 9 July 2001 but continued to attend as an outpatient until 19 November 2001.

4 On 24 September 2001, he returned to work with the appellant. Initially he performed packing duties. Later, he returned to duties which included operating a bandsaw. He ceased working for the appellant when it closed down its business. I deal later with his subsequent employment history.

5 By Originating Motion filed on 6 December 2004, the respondent sought leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 ('the Act') to commence proceedings for the recovery of pain and suffering damages for the injury to his right thumb sustained in the course of his employment on 29 June 2001. The claimed impairment was impairment of the use of his dominant right hand.

6 The application came on for trial for the first time before a County Court judge on 22 November 2006. The respondent was the only person to give oral**

evidence. Otherwise, a body of documentary material was placed before the learned judge. The application was dismissed and the respondent appealed. The appeal was heard by this Court constituted by a bench of five, on 5 October 2007.[1] The Court's decision, delivered prior to the decision of the High Court in Dwyer v Calco Timbers Pty Ltd,[2] allowed the appeal and remitted the application for re-hearing by another judge. The appeal was allowed essentially on the grounds that the learned judge below had failed to deal with relevant evidence or had failed to accommodate that evidence in his reasons.

**7 The respondent's application was heard for the second time, by another judge of the County Court, on 2 December 2008. The respondent was again the only witness to give oral evidence. Both parties also relied on other evidence, some of which had not been before the judge on the earlier occasion.

8 On 3 February 2009, the second judge, as it is convenient to describe her Honour, granted the respondent leave to commence proceedings for recovery of damages for pain and suffering.

9 This is an appeal to which s 134AD of the Act applies and accordingly it is unnecessary for the appellant to demonstrate error. This Court must decide for itself whether or not it is satisfied that the respondent has sustained injury which is a serious injury in terms of pain and suffering consequences within the meaning of s 134AB(38)(c) of the Act.

10 The fact that the respondent has suffered a permanent impairment as a consequence of the compensable injury arising out of the accident on 29 June 2001, is not in dispute. The issue in dispute is whether the pain and suffering consequence of the plaintiff's injury is 'serious' within the meaning of s 134AB(38)(c). This issue is**

to be determined having regard to the evidence and other material before the judge at first instance and any other evidence which this court may receive.[3]

11 To make out a 'serious injury' within the meaning of s 134AB(37)(a), the worker must establish that he suffered a 'permanent serious impairment or loss of body function'. The determination whether an injury is 'serious' is assessed solely by reference to the consequences to the particular worker of the relevant impairment or loss. Relevantly in the circumstances of this case, an impairment is not serious unless the pain and suffering consequence is, 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' (s 134AB(38)(c)).

**12 The respondent was the only witness to give oral evidence in the proceedings before the second judge. Four affidavits sworn by him were also tendered. One of them post-dated the first hearing.[4]

13 The respondent had been interviewed and examined by the following doctors, on the dates specified, for medico-legal purposes.

• Associate Professor Marshall, Plastic Surgeon, on 23 June 2003;

• Mr Behan, Plastic Surgeon, in October 2003, April 2005, November 2006 and July 2008;

• Dr Kaplan, Psychiatrist, on 11 December 2003 and 15 July 2008;

• Dr Blombury, Vascular Physician, on 21 August 2008.

14 Each of these doctors provided a report or reports, which went into evidence. Also put in evidence were reports from the Western General Hospital and Mr Ashton, and sixteen pages extracted from the clinical notes of Dr Stesin (the respondent's general practitioner).

15 For completeness, I note that the evidence included reports by Dr Stesin, Mr Bell (an Orthopaedic Surgeon) and Dr Rowe (an Occupational Physician), relating to an injury which the respondent sustained to his left shoulder in May 2005 while hanging lamb legs. He averred that he was using his left arm to carry out this task because of the injury to his right thumb. He was challenged about this asserted connection between injury to his thumb and injury to his left shoulder. I agree with the appellant's submission that the evidence did not establish such a connection. It showed that the shoulder injury came about when the respondent's leg slipped while he was lifting up the back legs of a lamb, this causing his left shoulder to be pulled or forced backwards. I need say no more about the reports of Dr Stesin, Mr Bell or Dr Rowe.

16 A number of photographs of the respondent's injured thumb were tendered below, as were a series of photographs of the respondent engaged in social activities taken from his 'Facebook' page. The learned judge inspected the respondent's thumb.

17 An affidavit of Kenneth Matthews (the previous manager of Scottsdale Meats), letters from Allianz Australia and two documents detailing Mr Kelso's player statistics with the Seddon/Yarraville Football Club and the Glenorden Football Club, were also put in evidence below.

18 I now turn to consider the nature of the respondent's injury and its consequences.

19 The accident on 29 June 2001 resulted in a complete transverse, slightly oblique amputation of Mr Kelso's right thumb at the level of the proximal nail bed and underlying distal phalanx. The respondent was hospitalised for about ten days, following a successful microvascular replantation.

20 In his report of 10 September 2001 Mr Ashton noted that the respondent's post-operative recovery was uneventful and that he had 'gone on to maintain an excellent range of movement at his JP joint and progressed to achieve a very functional result'. Mr Ashton noted that there had been minimal return of sensation at that stage but that this was not unusual given the short time period since the operative repair. He envisaged that Mr Kelso would go on to have a 'very good result indeed', with minimal functional deficit.

21 Mr Kelso returned to work with the appellant about three months after the accident, albeit on light duties. He packed meat using a cryovac machine in a cold storage area. He ceased working for the appellant when the appellant closed down its business.

22 After a period of unemployment Mr Kelso obtained work in another abattoir, operated by Scottsdale Meats. He worked as a lamb boner, operating a bandsaw and doing essentially the same job as the one that had caused his injury. He worked there until Scottsdale Meats ceased its operations in about July 2004. In the meantime, the appellant had recommenced operations and Mr Kelso resumed employment with the appellant as a boner and continued in that capacity until the appellant again ceased business in November 2005.

23 In February 2006 Mr Kelso obtained employment as a meat trimmer with another meatworks, Tasman Meats. He ceased that employment in May 2006 when he was put off because of lack of work.

24 In October 2006 Mr Kelso obtained employment as a container hand at Laverton Transport and in about March or April 2007 he changed jobs and commenced working as a storeman for Coles Myer in a refrigerated environment.

25 All of Mr Kelso's jobs, post injury, were full time.

26 The fact that Mr Kelso has been able to return to alternative work on a full time basis is relevant to the question whether the pain and suffering consequence of his injury is serious, but it is not determinative. A return to full time employment after injury will, in the absence of other relevant evidence, tend against a conclusion that the pain and suffering consequences of the injury are 'serious'. But it is necessary to consider the evidence as a whole.[5] A convenient starting point is the extent of the respondent's impairment as a result of his injury.

27 Despite the success of the replantation, it is not in doubt that the respondent has been left with an impaired pincer function through sensory loss. As Associate Professor Marshall notes in his report of 23 June 2003:**

The replantation of the amputation has been successful, but the loss of movement and loss of sensitivity results in him being unable to use the replanted part in the normal manner. He is able to oppose the pulp of the thumb to the pulp of the adjacent figures, but makes very little use of this fine manipulative movement, because of the decrease in sensation of the pulp.

28 Similarly, in his report of 11 April 2005 Mr Behan notes that the respondent has achieved full functional recovery in flexion and extension 'however there is some slowness in sensory recovery'. In his subsequent report of 13 November 2006 Mr Behan noted that the radial and ulna sides of the thumb were anaesthetic and that:

The patient will always have a poor pincer grip and dysfunctional thumb in terms of picking up small objects.

29 In Mr Behan's most recent report of 14 July 2008 he says:

On palpation there is some sensation distally, but not full sensory return. De mayo discrimination distances is measured at 11mm on the ulnar/cleft side but 15mm on the radial side, consistent with anaesthetic thumb in this radial half. The patient can appreciate pressure however. The hyperhydrosis or increased sweat response noted previously is still present but is not as marked.

**30 Sensory loss, and its effect upon pincer grip, is not the only consequence of injury relied upon by the respondent. There is also pain, the past and continuing extent of which (both as to site and degree) was in dispute below and before us. It is now convenient to deal with Mr Kelso's treatment and medication regime, and to address the dispute about pain in doing so.

31 After a period of hospitalisation following the microvascular replantation, Mr Kelso continued to attend Western General Hospital as an outpatient until 19 November 2001. Since that time he has not been seen by any doctor for treatment relating to his injured thumb.

32 The patient notes of Mr Kelso's general practitioner show that he was prescribed Tramal on 16 July 2001, for pain, following his thumb surgery.[6] Mr Kelso makes reference to this in his affidavit of 6 August 2004:**

Following the accident I took Tramal to relieve the pain but it made me feel sick and I was prescribed Valium and from time to time I still take Panamax for pain.

33 In a subsequent affidavit dated 3 October 2006 Mr Kelso says:

I have stopped using medications because I found that they did not provide effective relief for the ongoing pain which I suffer.

34 After commencing employment as a container hand at Laverton Transport in October 2006, Mr Kelso began using Nurofen to relieve his pain. He deals with this in his affidavit of 21 November 2006:

I managed to obtain employment approximately six weeks ago ... as a container hand. This work requires me to load and unload containers. ... At the end of each day I have quite severe pain affecting my right forearm and now take Nurofen to relieve this pain.

35 In his final affidavit of 21 November 2008, Mr Kelso again deals with his use of medication for pain relief and says:

I try to avoid using medication save for when the pain is at more severe levels because I have found that the medication does not remove the pain but simply provides some temporary relief for what is a permanent problem. If I do take medication it is usually Nurofen and as I say I take such medication in order to take the edge off the pain rather than to lead to any lasting resolution of the pain.

**36 In his oral evidence before the judge below, the respondent said that he took the non-prescription analgesic Nurofen when required, and on occasions took the prescription analgesic Tramal, provided by his mother. This evidence was challenged by reference to the histories recorded in the medico-legal reports of Drs Blombery, Epstein and Honey. The relevant parts of the histories were said to constitute admissions against interest.

37 Dr Blombery examined the respondent on 21 August 2008 and in his subsequent report says: 'When I saw him, his only medication was Coversyl for high blood pressure'. The respondent was cross-examined about the apparent inconsistency between his oral evidence and Dr Blombery's report. He said that Dr Blombery had asked him whether he took any 'prescribed medication'. He had replied that the only medication he took was Coversyl and did not tell Dr Blombery that he took Tramal. Nor did he tell Dr Blombery that he took the non-prescription analgesic Nurofen.

38 Dr Honey examined the respondent on 30 June 2003 and in his subsequent report says: 'He is not on any medication'. Dr Epstein's report of 4 June 2004 is to similar effect. It says: 'He does not use any medications and has no specific treatment at the moment'. When asked if these parts of the reports of Drs Epstein and Honey reflected what he had told them at the time, the respondent said that he was unable to remember what he told them, given the passage of time.

39 The learned judge below summarised this evidence and concluded:**

... on the question of the frequency of the plaintiff's use of painkilling medication (not to mention his alleged use of his mother's prescription pain killer, Tramal), the plaintiff's evidence was inconsistent and, as I have already mentioned, I was left with the impression that he probably overstated the frequency with which he took Nurofen or (for that matter) had recourse to his mother's prescription medication, painkilling medication and the plaintiff had previously sworn he stopped taking because it made him feel sick.

Nevertheless, as my discussion of the medico-legal evidence and the plaintiff's current symptoms reveals, even if the plaintiff uses strong painkilling medication or non-prescription painkilling medication less frequently than alleged, this factor alone is not determinative of the issue of whether the plaintiff suffers from 'constant' or chronic pain as a consequence of injury to his right thumb.'[7]

**40 I agree with her Honour's conclusion that Mr Kelso probably overstated the level of his pain and the frequency with which he used painkilling medication in connection with the injury to his right thumb. In particular I think it unlikely that the respondent uses Tramal for pain relief as regularly as he asserts (once or twice a month). Such use is inconsistent with the respondent's prior statements that Tramal made him feel sick[8] and with the respondent's response to Dr Blombery when he was asked about his use of 'prescription medication'.

41 The evidence, however, does justify a conclusion that the respondent uses Nurofen for pain relief. The explanation proffered for the failure to mention his use of Nurofen to Dr Blombery is plausible (ie the respondent was asked about 'prescription' medication) and such use is consistent with his prior statements. The respondent's inability to recall what he has said to Drs Epstein and Honey is unremarkable, given the passage of time.

42 I now turn to consider whether the respondent suffers from constant or chronic pain as a consequence of his injury.

43 In the decision subject to appeal the learned judge deals with the extent of Mr Kelso's pain this way:**

... having regard to all of the evidence, which over more than a seven and a half year period includes consistent reports of pain in association with the use of his right hand and exposure to cold conditions, I was satisfied that (and notwithstanding the plaintiff's obvious reluctance to explore different surgical options which might both improve the function of his thumb and reduce the level of the pain suffered) the consequences of the plaintiff's physical injury (particularly in his work environment) include probable regular pain in his thumb and/or forearm requiring the use of at least non-prescription painkilling medication. I was also satisfied that cold weather worsens the plaintiff's level of pain, as does exposure of his thumb to cold conditions in his employment.[9]

44 On a consideration of all the evidence I have reached the same conclusion as the learned trial judge. I am satisfied that as a consequence of the respondent's injury he suffers regular pain in his thumb and/or forearm. I am also satisfied that cold weather and exposure of his thumb to cold conditions in his employment worsens the respondent's level of pain. Such findings are supported by the respondent's consistent reports, over a substantial period of time, of pain in association with the use of his right hand and exposure to cold conditions. For example:

... he is left with a thumb which has decreased feeling and is exceedingly sensitive to cold.

Mr Kelso returned to work after six months ... and found the low temperatures caused considerable pain and discomfort of his thumb.

He has limited movement in the thumb and he has swelling and pain particularly in cold weather.

He experiences hyperhydrosis and sweatiness of the (R) palm, sometimes focussed in the (R) thumb ... He experiences a cold weather sensitivity which when touching cold meat causes him some distress.

He continues to experience cold weather sensitivity and wears gloves in the meat room.

In my initial report I discussed hyperhydrosis with increased sweatiness of the (R) thumb down to the base. This still occurs along the radial side down towards the base of the therar eminence ... Sensitivity is still a concern when the patient is touched ... the cold weather sensitivity he experiences (even when wearing gloves) causing him significant pain in that digit.

...the patient still sometime experiences localised radiating pain, indicating contact neuritic changes as a result of scarring in the vicinity of the radial digital nerve repair and the patient is hypersensitive to contact here ... The. Hyperhydrosis or increased sweat response noted is still present but is not as marked.

Mr Kelso stated that he suffers from a constant mild, aching pain his thumb and the pain radiates along the front of his forearm. He experiences a more severe pain at the end of the working day and the pain is aggravated when he is in a cold environment or cold weather.

Mr Kelso stated that the pain he has experienced in his thumb radiating up his forearm has not altered since I last examined him almost 5 years ago. The wound area over his thumb remains tender and he experiences a sharp pain radiating up his forearm if he knocks his thumb.

He has ongoing difficulties with function of the left thumb with poor grip, sweating, neuritic irritation, lack of sensation in the thumb, greater sensitivity in cold weather, and anxiety about injuring his thumb, especially as he is working in the meat industry.

45 In his various affidavits the respondent describes his pain in the following terms:

My thumb is particularly sensitive to the cold environment. I have fairly constant pain in my thumb radiating to my arm and my hand sweats and I have numbness around the base of the thumb in the pulp of the thumb. (6 August 2004)

I have stopped using medications because I found that these did not provide effective relief for the ongoing pain which I suffer. I find that my symptoms are distinctly worse during the colder winter months and it's also during these times that I notice more pain spreading up my right arm. (3 October 2006)

At the end of each day I have quite severe pain affecting my right forearm and now take Nurofen to relieve this pain. (21 November 2006)

... by reason of the injury to my right thumb I do suffer constant pain when at work ... In all my daily activities I continue to suffer constant variable pain in my right thumb. The pain is worse during the winter months at which time it radiates up into my right wrist and arm ... I try to avoid using medication save for when the pain is at more severe levels because I found that the medication does not remove the pain but simply provides some temporary relief for what is a permanent problem. If I do take medication it is usually Nurofen and as I say I take such medication in order to take the edge off the pain rather than to lead to any lasting resolution of the pain. (21 November 2008)

**46 Whilst complaint of pain, even repeated many times, does not establish the veracity of the complaint, I consider that the evidence overall supports a finding that the respondent suffers constant pain which varies in severity. It is more likely than not that Mr Kelso usually experiences mild pain or discomfort only, but that his pain increases in severity on exposure to cold or at the end of a days' work. He takes Nurofen when his pain is more severe. I think it unlikely that Mr Kelso suffers severe pain on a regular basis.

47 The absence of severe pain on a regular basis is supported by reference to the range of activities in which Mr Kelso engages, in particular:

• he is in full time employment, enjoys his current job and describes no significant limitations on his ability to perform that work despite the fact that he works in a refrigerated environment;

• he has resumed an active sporting life and has played regularly, and with some success, for his local football club and has also played indoor cricket since his injury; and

• he naturally uses his right hand when he has to pick up some object or thing.

48 Two other matters are relevant in assessing the likely frequency and extent of the respondent's pain.

49 The first is that the extent of his pain has not been such as to cause him to consult a doctor about his thumb since his discharge as a surgical outpatient in November 2001, over eight years ago. Nor has he mentioned any such problems to his general practitioner, despite attending on him with other health complaints from time to time.

50 The second relevant matter is the respondent's reluctance to pursue surgical options which might reduce his level of pain.

51 In his first report of 8 October 2003 Mr Behan notes that the respondent 'may require referral back to Mr Mark Ashton to determine whether there is a need for tenolysis of the flexor pollicis longus tendon, which he notes tends to be catching in the forearm muscle belly area'.

52 In his report of 11 April 2005 Mr Behan recommended that the respondent's right forearm pain be further investigated:**

He has developed pain in the (R) forearm which does need clinical exploration, and the hypersensitivity of the scar continues to be a cause for concern. If the patient were to return to see the operating surgeon ... he could assess whether there is some element of tightness or even carpal tunnel disturbance regarding the patient's wrist flexion and the pain he experiences proximally in the arm.

53 In his report of 13 November 2006 Mr Behan raised the possibility of scar revisional surgery of the pulp surface of the respondent's right thumb in order to reduce the sensitivity of the scar. In his subsequent report Mr Behan raises this issue more forcibly:

...the patient does require further scar revisional surgery and should be referred for appropriate specialist management. In my hands the cost for the surgery would be $1000, the anaesthetic fee $250 and time off work 4/52 with desensitization programme.

54 Mr Kelso makes reference to the proposed scar revisional surgery in his affidavit of 21 November 2008:

In addition to pain I have scarring on my thumb and this is a concern especially if my thumb comes into contact with objects. A Plastic Surgeon, Mr Behan, has suggested that further surgery may assist to some extent in alleviating some of these symptoms.

**55 The respondent has not taken up any of Mr Behan's suggestions - he has not returned to see Mr Ashton and does not intend to have the scar revisional surgery. If the respondent had been experiencing severe pain on a regular basis then one would have expected him to explore options which may reduce the pain.

56 I now turn to consider the other consequences said to result from the respondent's injury.

57 While the respondent's injury initially had a range of adverse social and psychological impacts, that is no longer the case. The respondent is in a stable relationship and his injury provides no impediment to engaging in social activities. The adverse psychological effects of his accident have resolved, he no longer suffers from anxiety or nightmares.

58 The respondent particularly relied upon two alleged persistent adverse amenity impacts of his injury: Impairment of his ability to engage in sporting activities and in the performance of a range of day to day activities.

59 Mr Kelso was a promising junior footballer. He was a member of the U14 and U16 Victorian representative squads. He then suffered a knee injury in a motorcycle accident and did not play for a number of years. He resumed playing in 2000, as centre half forward for Laverton in the Western Region Football League, in the seconds. He stopped playing after his compensable injury and returned to football in 2002, playing for Seddon Yarraville in the Division 1 reserves. In 2003 he played in both the reserves and the firsts. He later moved to the Laverton Magpies and played with them in 2007 and 2008 in the Division 2 firsts. He was the leading goal kicker for the club in 2007 and came second in 2008.

60 In his affidavit of 21 November 2008 the respondent says:**

Despite the disability in my thumb, I have continued with my social and recreational activities as best I can. I have continued to play football and am in Division 2 with the Laverton Magpies Football team. I play at full forward and avoid attempting overhead marks because of the pain and strain which I suffer in my right hand as a result of my right thumb injury. I tend to position myself so that I can take chest marks. When I do play football, my thumb and hand are heavily bandaged so as to restrict the movement and also the damage which might be suffered through a knock to the thumb.

**61 Mr Kelso was cross-examined as to the ways in which his injury impacts on his football. He maintained that he only took chest marks and never marked the ball overhead. He relied on leading for chest marks and getting free kicks. He maintained that he did not rely on taking contested marks and that he would never punch the ball in the event that an opposition player had front position.

62 It is difficult to reconcile Mr Kelso's evidence regarding the manner in which he has been playing, with his apparent success. Aspects of his evidence on this issue strain the limits of credibility.

63 But in any event it is clear that he has resumed playing football after his injury, with considerable success, and he has adapted his playing style to accommodate his injury. It is also clear that his thumb has never required treatment after playing football.

64 Mr Kelso also makes mention of the impact of his injury on playing cricket, darts and fishing. In his affidavit of 3 October 2006 he says:**

I no longer play outdoor cricket although I have joined a team playing indoor cricket and the main difficulty I find is my ability to properly grip the ball when I am bowling.

65 In his subsequent affidavit of 21 November 2008 Mr Kelso says:

I am no longer able to play darts and no longer go fishing because I cannot handle finer manipulative tasks required in those activities

66 Under cross-examination these matters assumed less significance:

• Mr Kelso said that he experienced pain in his forearm when playing indoor cricket, but was still able to bat, bowl and field, and did not require any treatment after playing;
• He stated that he has gone fishing since his accident albeit he had difficulty in threading the line and was fearful of a hook getting stuck in his thumb;
• He stated that he used to play darts with his father 'a fair bit' prior to the accident. He was living at home at that time, but moved out in 2004. He accepted that he could pick up a dart between his fingers and thumbs and propel it forward.

67 The respondent's injury also impacts, he asserted, on his performance of a range of day to day activities. As a consequence of the impaired pincer function in his dominant hand the respondent has had to adjust the way in which he uses that hand. In his affidavit of 21 November 2008 the respondent says:

I have had to change my grip when using a pen or small hand tools or cutlery. I have difficulty holding objects and tend to drop all objects

**68 In an earlier affidavit the respondent speaks of the impact of his injury on his ability to perform routine household tasks, such as dishwashing.

69 The force of some of this evidence was significantly reduced by concessions made during the respondent's cross-examination, namely:**

• Despite the change in his grip, his writing is legible and he has no problem doing the writing required in his current job; and
• He agreed with the proposition that he did not have any real problem reading a paper - that is, in turning the pages.

70 Having canvassed the evidence regarding the pain and suffering consequences of the respondent's injury I now turn to consider whether he has a serious injury within the meaning of s 134AB (38)(c).

**71 Counsel for the respondent advances three main points in support of the contention that he has a serious injury:

• Mr Kelso has lost an effective pincer function in his dominant hand, and this is particularly significant given his young age;

• He suffers constant variable levels of pain in the thumb and extending into the right forearm; and

• Reliance is placed on various observations in the earlier decision of this Court.

72 It is convenient to deal with the last point first.

73 As mentioned earlier, the respondent's application for leave to commence proceeding for damages was initially heard and dismissed. The respondent appealed. The appeal was allowed and the application remitted for rehearing by another judge. In the present matter the respondent seeks to rely on a number of observations made by this Court in the earlier appeal. In particular, the respondent relies on the following observations by Dodds-Streeton JA (with whom Buchanan, Ashley and Kellam JJA agreed):**

It is not apparent, however, why the appellant's poor pincer grip and dysfunction of the right thumb (affecting holding a pen and eating implements and a number of 'other domestic tasks'), the hypersensitivity and lack of sensation in the working area of his right thumb, and his inability to work satisfactorily, or at all, in the meat industry, cumulatively, at least, do not constitute a very considerable consequence to a person with the qualities, work history, and education of the appellant.[10]

...

Secondly, the reasons for judgment fail to deal at all with the issue of, and evidence concerning, the appellant's persistent pain, to which he deposed in three successive affidavits, and on which he was cross-examined. The 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.[11]

**74 The respondent also drew our attention to Buchanan JA's reference to 'an important body of evidence, which lay at the heart of the Appellant's case and which might be thought to have led to the application being granted'.[12]

75 I do not demur from the statements of principle in the earlier appeal and agree with the proposition that 'The endurance of daily pain requiring frequent medication must, according to ordinary human experience, raise a very real prospect of a "very considerable" consequence'. But the other observations upon which the respondent relies must be seen in context. Two things may be said in this regard. The first is that the observations were made in the context of a challenge to the judgment subject to appeal on the basis that the trial judge had failed to deal with relevant evidence or had failed to accommodate that evidence in his reasons. Seen in this light the observations are unexceptional and should not be seen as a qualitative evaluation of the evidence, but rather as identifying evidence which was not dealt with or accommodated by the trial judge. The second point to make is that the evidence before us is quite different to the evidence in the first appeal. Both parties relied on additional evidence not adduced in the earlier proceedings. For these reasons the observations by the court in the earlier appeal provide little assistance to the respondent in the present appeal.

76 As to the first point advanced by counsel for the respondent, I accept that the pincer function in the respondent's dominant hand has been significantly impaired. But whether an impairment is 'serious' is to be assessed solely by reference to the consequences to the worker. Earlier, I have set out my conclusions as to the consequences of Mr Kelso's impairment in terms of his capacity to work full time, the impact on his social and sporting activities and on his everyday activities.

77 In addition to a consideration of the limitations imposed on a worker as a consequence of injury it is also relevant to consider what activities the worker is still able to engage in, post injury. As Ashley JA observed in Dwyer v Calco Timbers Pty Ltd (No 2):**

...in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.[13]

**78 In this case the respondent has been able to return to full time alternative employment (indeed for a period he worked in the same job that resulted in his injury); play football with considerable success; engage in other sporting and social activities; and he had been able to adjust the way in which he uses his dominant hand so that he is largely able to perform everyday activities, such as reading and writing.

79 In making these observations I readily accept that the respondent's life is not what is was pre-injury. He has had to adapt and in some respects he cannot perform some tasks as well as he could prior to his injury; and he suffers pain.

80 All in all, and taking full account of the respondent's young age (a matter pressed by respondent's counsel) I am not persuaded that such consequences, when judged by comparison with other cases in the range of possible impairments, can fairly be described as being more than significant or marked. It follows that the respondent's injury is not a 'serious' injury within the meaning of s 135AB(37)(a). The appeal must be upheld and the respondent's application for leave to commence a proceeding dismissed.**

[1] [2007] VSCA 267; (2007) 17 VR 592.

[2] [2008] HCA 13; (2008) 234 CLR 124.

[3] Church v Echuca Regional Health [2008] VSCA 153; (2008) 20 VR 566, [104]-[105] (Ashley JA, with whom Buchanan JA and Pagone AJA agreed); Doolan v Rayners Sawmills Pty Ltd [2008] VSCA 219, [9] (Kellam JA, with whom Neave JA and Cavanough AJA agreed).

[4] The dates on which the affidavits were sworn were 4 August 2004, 3 October 2006, 21 November 2006 and 21 November 2008.

[5] Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, [24] (Chernov JA); Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 [47] (Ashley JA); Sabo v George Weston Foods [2009] VSCA 242, [71] (Neave and Mandie JJA).

[7] 3 February 2009, unreported, [38]-[39].

[9] 3 February 2009, unreported, [40].

[10] Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; (2007) 17 VR 592, [196].

[13] [2008] VSCA 260, [27].