Argonz v RTM (Aus) Pty Ltd
[2024] VCC 1695
•31 October 2024
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-06971
| JAZMIN MARIA ARGONZ | Plaintiff |
| v | |
| RTM (AUS) PTY LTD | First Defendant |
| and VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 29 August 2024 | |
DATE OF JUDGMENT: | 31 October 2024 | |
CASE MAY BE CITED AS: | Argonz v RTM (Aus) Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1695 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages - serious injury – injury to the left lower limb – pain and suffering – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325, 327, 335
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 542; Sabo v George Weston Foods [2009] VSCA 242; Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Hooley v Transport Accident Commission [2019] VSCA 263
Judgment: Leave granted to bring common law proceedings to recover pain and suffering damages for personal injury sustained throughout the course of the plaintiff’s employment with the employer.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh and Ms F Crock | Barbante Personal Injury Lawyers |
| For the Defendant | Mr P Scanlon KC and Mr S Martin | Russell Kennedy |
Table of Contents
Introduction
Background
The relevant legal principles
Witnesses and evidence
Treating medical practitioners
Mr Michael Falkenberg
Mr Mike Pope, Physiotherapist
The plaintiff’s medico-legal reports
Mr John O’Brien, Orthopaedic Surgeon
The defendant’s medico-legal reports
Mr Troy Keith, Orthopaedic Surgeon
Submissions
Plaintiff’s submissions
Defendant’s submissions
Credit
Compensable injury
Permanence
Plaintiff’s claimed consequences of the injury
Analysis and findings
Pain
Medication and medical treatment
Work capacity
Sleep
Mobility
Activities of daily living
Soccer
Running
Walking
Driving
Travel
Age
Conclusion
HER HONOUR:
Introduction
1On 24 January 2022, the plaintiff, Jazmin Maria Argonz, suffered injury to her left foot while performing duties at work with RTM (Aus) Pty Ltd, a construction company. At the time of injury, she was operating a telescopic handler (“telehandler”), which is a type of reach forklift. When adjusting the tines (or “forks”) one fell on her left foot, resulting in a crushing injury.
2The plaintiff seeks leave pursuant to s327 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover pain and suffering damages in respect of the permanent serious impairment or loss of the function of her left lower limb/foot. She claims the injury is a “serious injury” within the meaning of the relevant definition of “serious injury” in subparagraph (a).
3A further claim which had been made that the plaintiff suffered permanent serious disfigurement of the left foot secondary to surgical intervention pursuant to the meaning of “serious injury” in sub-paragraph (b) of the relevant definition of “serious injury” was abandoned at trial.
4No claim was made seeking leave to recover damages for loss of earning capacity.
5The parties agreed the injury was a compensable injury and occurred in the course of the plaintiff’s employment at RTM.
6The issues at trial were whether the plaintiff’s injury was permanent and whether the claimed pain and suffering consequences of the injury satisfied the definition of “serious injury” as set out in the Act.
7For the reasons that follow, I find the plaintiff has established she has suffered a “serious injury”.
Background
8The plaintiff was born in Argentina in May 1996 and is now 28 years of age.
9She moved to Sydney in 2019. She now lives in Western Australia.
10Since her arrival in Australia, the plaintiff has had a number of jobs including cleaning, babysitting and working as a farm hand.
11The plaintiff commenced working with RTM on or around 20 January 2022.
12On 24 January 2022, the plaintiff was injured while manually adjusting the tines on a telehandler. A locking mechanism failed causing one of the tines to fall to the ground, landing on her left foot.
13The plaintiff attended Benalla Hospital and Wangaratta Hospital that day. A CT of her lower extremity with no IV contrast, a CT left foot without contrast and an X-ray left foot were taken. The plaintiff was diagnosed with an undisplaced fracture of the second metatarsal and a displaced fracture of the first metatarsal, along with a gash on the top of her left foot which required stitches. She reported pain which was treated with Paracetamol and Oxycodone. She was discharged and told to elevate her foot until the swelling began to settle.
14On 28 January 2022, the plaintiff reattended Wangaratta Hospital and underwent a further X-ray of her left foot. She was advised she required surgery to her left foot. Arrangements were made to admit her on 29 January 2022.
15On 29 January 2022, Mr Michael Falkenberg (orthopaedic surgeon) performed surgery on the plaintiff’s left foot. In his operation report, Mr Falkenberg noted performing the following procedures:[1]
“The patient had had the fork of a forklift drop on her left foot on 25.1.2022. This was associated with a dorsal injury between the first and second metatarsals which had been repaired in Benalla with sutures. The first metatarsal was transversely fractured between the junction of distal on-third / proximal two-thirds with valgus displacement and angulation. No tourniquet was used and intravenous Cephazolin administered. A medial, longitudinal incision was made and exposed the first metatarsal shaft. The fracture was cleaned thoroughly, washed and reduced. It was a ‘fiddly reduction’ as the plate contouring of the metatarsal was difficult. A 2.7 mm Synthes plate was applied along the medial side. The choice was between a four and a six hole plate and the latter was chosen, even though the most proximal hole lies over the tarsometatarsal joint and was not used. The distal fixation is two 2.7 mm locking screws and then a further locking screw on the proximal side and two non-locking screws. ‘The wound was closed with a running Prolene mattress suture after washing out thoroughly at the end. Tulle, gauze and backslab applied’.”
[1] Exhibit I; Joint Court Book (“JCB”) 37
16Mr Falkenberg determined the plaintiff was to remain in plaster for four weeks and begin to partially weight bear with the assistance of crutches for a further two weeks after the initial period of healing. He opined if the X-rays looked “satisfactory”, the plaintiff could fully weight bear on the leg at six weeks post-operation.
17Ultimately, the plaintiff’s plaster cast was removed, and she was given a CAM moonboot which she wore until April 2022. She was also given a prescription for the antibiotic Cephalexin.
18Between February and March of 2022, the plaintiff returned to hospital four to five times for reviews. Regional imaging, fluoroscopy with II>1 hr was undertaken on 1 February 2022. Further X-rays of the plaintiff’s left foot were also undertaken on 22 February and 24 February 2022.
19The X-ray of the left foot taken on 24 February 2022 made comparison with the previous pre-operative examination of 28 January 2022. Internal fixation of the previously displaced fracture of the mid-shaft of the first metatarsal was noted with good alignment. The fracture line was still visible and there was no evidence of ossified bony union. The undisplaced fracture of the proximal shaft of the second metatarsal was a little more evident due to bone resorption at the fracture site.
20A further X-ray of the left foot was undertaken on 7 April 2022. It found a multi-hole plate and screws were fixing a fracture of the first metatarsal. It was noted to be in good anatomical position. There was regional osteopenia consistent with disuse. An undisplaced fracture was seen in the shaft of the second metatarsal at the junction of the proximal and middle third metatarsal.
21The plaintiff’s follow-up at the clinics at North-East Health Wangaratta ceased on 7 April 2022.
22Following her injury, the plaintiff stopped working until approximately April 2022.
23Recent X-rays of the plaintiff’s left foot taken in Argentina on 22 February 2024, show the metal plate positioned in situ within her first metatarsal with screws in place.
24Observation of the plaintiff’s feet at trial revealed an obvious and significant outward protrusion at the top of the first left metatarsal where the metal plate was located. There was scarring as a result of the surgery: one scar along the inside profile of the plaintiff’s left foot running from the great toe down to the ankle, and the other on the top of her left foot.
25At trial the plaintiff also demonstrated how she stands on her toes and the degree of flexion. She was able to flex her toes to stand tall but, overall, she displayed less flexion in the toes on her left foot than the toes on her right foot.
The relevant legal principles
26The legal principles are well known and are not in dispute. The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury”.
27Section 325(2) of the Act provides:
“(a)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, … as the case may be, with respect to—
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, … or mental or behavioural disturbances or disorders respectively;
(b)an impairment or loss of a body function … is not to be held to be serious for the purposes of section 335(2) unless—
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, … as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.
… .”
28To succeed in her application, the plaintiff has the onus of proving on the balance of probabilities, that:
(a) the injury suffered by her arose out of, or in the course of, or due to the nature of, her employment with RTM;[2]
(b) the injury with its resulting impairment is permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) the consequences to her of the impairment to her left lower limb in relation to “pain and suffering” are “serious” such that when an objective comparison is made between the impairment suffered by the plaintiff and other cases in the range of possible impairments, the consequences can “be fairly described as being more than significant or marked and as being “at least very considerable”.[4]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 (“Barwon Spinners”) at paragraph [11]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 325(1)(c) of the Act
29In TTB SMS Pty Ltd v Reading,[5] the Court of Appeal identified that in a pain and suffering case, in addition to the above matters, in assessing the seriousness of the claimed impairment consequences, a court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.
[5] [2020] VSCA 203
30The assessment of whether an injury is a “serious injury” is largely a question of impression and value judgment[6] as to relative incapacity falling to be resolved by consideration of the evidence as a whole.[7]
[6]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 542 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
[7]Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145 referring to Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545 at 573, paragraph [89]
31In Haden Engineering Pty Ltd v McKinnon,[8] the Court of Appeal identified that the “pain and suffering consequences” of an injury encompass both a plaintiff’s experience of pain, as well as the disabling effect of the pain on a plaintiff’s physical capabilities and enjoyment of life. The intensity, frequency and duration of the pain must be assessed. Their Honours noted:
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff pain; and
(d) what the objective evidence shows about the disabling effect of the pain.”
[8] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden”)
32Aside from these factors, the Court of Appeal in Haden identified other matters which, although not a checklist, are relevant to the assessment of whether pain interferes with the ordinary activities of life. These include the effect of pain on a plaintiff’s:
“· sleep;
· mobility;
·cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
· capacity for self-care and self-management;
· performance of household and family duties;
· recreational activities;
· social activities;
· sexual life; and
· enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”[9]
[9]Haden (supra) at paragraph [16]
33Where an applicant’s field of employment has been permanently limited from a very young age, that may be significant. In Hooley, the Court of Appeal said: [10]
“The pecuniary disadvantage consequence of having one’s chosen field of employment permanently limited from a very young age is, as we have said, a very significant consequence. It includes but goes well beyond being a pain and suffering or loss of enjoyment of life consequence.”
…
“As we have already said, the age at which the applicant suffered his permanent injury is also a significant matter. As this Court said in Stijepic v One Force Group Australia Pty Ltd, when judging the consequences for a particular applicant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced.
…
All things being equal, impairment consequences which an applicant will have to put up with for decades might well be judged more serious than the same consequences which another applicant may have to put up with for a much shorter period of time.”
[10] Hooley v Transport Accident Commission [2019] VSCA 263 (“Hooley”) at [50]-[51]
34Although Hooley involved a transport accident claim and considered age in the context of employment opportunities, the age of the plaintiff is nevertheless a relevant factor in determining the severity of the injury for pain and suffering purposes.
35In determining the application, for the purposes of paragraph (a) of the definition of “serious injury”, the Court must not take into account psychological or psychiatric consequences: these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”.[11]
[11]Section 325(2)(h) of the Act
36The Court must make the assessment of “serious injury” at the time the application is heard.[12]
[12]Section 325(2)(j) of the Act
Witnesses and evidence
37At the hearing, the plaintiff gave evidence and was cross-examined.
38The plaintiff tendered two affidavits.
39The plaintiff’s first affidavit was affirmed on 6 September 2023 (Plaintiff’s First Affidavit).[13]
[13] Exhibit A
40A further affidavit[14] contained a statement at the commencement of the affidavit to the effect it had been affirmed and a statement at the end of the affidavit to the effect it had been sworn. The date said to have been sworn was 28 May 2024 (Plaintiff’s Second Affidavit). The plaintiff was asked why the Plaintiff’s Second Affidavit referred to both affirmation and swearing. I was satisfied that the contents of the affidavit, even if not technically compliant with the requirements of the Evidence Act, had been made in circumstances where the plaintiff believed them to be true and correct.
[14] Exhibit B
41Various medical and other documents were also tendered on behalf of the plaintiff. These included a report from the plaintiff’s treating surgeon, Mr Michael Falkenberg, orthopaedic surgeon, a report from Mr Mike Pope, physiotherapist, and a medico-legal report from Mr John O’Brien, orthopaedic surgeon.
42The defendant tendered a bundle of Facebook and Instagram posts, videos and stories from 4 February 2021 to 4 May 2024; an Instagram video clip played in court during cross-examination; a medico-legal report of Mr Troy Keith, orthopaedic surgeon; surveillance material contained on a USB provided to the court, and an entry from the clinical records of Life Ready Physio dated 26 May 2022 of a consultation with the plaintiff.
Treating medical practitioners
Mr Michael Falkenberg, orthopaedic surgeon
43Mr Michael Falkenberg prepared a report dated 23 May 2024 in relation to the plaintiff’s treatment including the operation he performed on the plaintiff’s foot on 29 January 2022.[15]
[15] Exhibit N; JCB51
44Mr Falkenberg’s report outlined the plaintiff’s treatment post-surgery and provided a diagnosis of a left foot crush injury with fractures of the first and second metatarsal bones of the plaintiff’s left foot with an open fracture of the first metatarsal.
45Mr Falkenberg’s opinion at the time of surgery was there had been no major damage to nerves or tendons during the operation and, at the time of surgery, he expected the bone structure should heal with treatment. He did not expect permanent impairment from the injury and did not recommend further treatment.
46Mr Falkenberg reported the plaintiff had not been seen by him since the surgery.
Mr Mike Pope, physiotherapist
47A report from Mr Mike Pope, physiotherapist, was provided dated 17 June 2024.[16] The report noted, relevantly, at the date of that report:
[16] Exhibit M; JCB49
·Current pain levels are reported to be 7/10, and described as stiffness around the 1st Ray close to the metal work (ORIF)
·Pain aggravating activities are calf raises, single leg exercises, general ADL's. …
·Rating 0% on her self perceived ability to complete her usual hobbies, recreational activities.
·…
·Palpation of her foot revealed reduced inter metatarsal joint ROM, stiffness within the 1st Ray, and restriction within the forefoot.
·Range of motion testing revealed reduction in 1st ray elevation/extension.
·…
·Muscle length testing revealed tightness within the calf and great toe flexors.
·Muscle strength testing revealed reduced single leg calf raise on affected side.
·Functional strength testing revealed some global reduction in lower limb strength.
·Main functional activity limitations are: Putting on shoes and socks 25% ability, Housework, 50% capacity, Heavy lifting around home 50% capacity, walking a mile 50% capacity, Standing for an hour 50% capacity. Running 50% capacity.
·Lifting capacity is 20 kg.
·Diagnosis of injury is 1st and 2nd Metatarsal Fracture with ORIF.
The plaintiff’s medico-legal reports
Mr John O’Brien, orthopaedic surgeon
48The plaintiff relied on a medico-legal report from Mr John O’Brien, orthopaedic surgeon.
49Mr O’Brien examined the plaintiff on 18 March 2024.
50In his report, Mr O’Brien referred to having taken a current history of the plaintiff’s condition as follows:
“The patient states that she does not experience any pain at rest, however indicated that the pain is significantly aggravated by weight-bearing. The severity of pain, she states, can reach 8/10 on the Visual Analogue Scale at the end of a working day. When not working, the patient states that the pain does reach 6/10 on the Visual Analogue Scale. In addition, Ms Argonz states that she experiences significant painful sensation over the medial aspect of the left forefoot, which she states is aggravated by any direct pressure. Indeed, any inward stretch of the skin in this area, she states, causes severe pain and thus she has difficulty putting on shoes and socks. The patient reported that even the weight of bedclothes on the medial aspect of the left foot at night causes pain and does cause some disturbance of sleep. Ms Argonz states, when possible, she wears sandals or runners and finds any dress shoes which are tight can cause her severe pain. In addition, the patient reports she is unable to wear high heels.”
51In relation to the plaintiff’s current condition, Mr O’Brien reported:
“The patient, however, remains symptomatic, describing persistent significant dysaesthesia affecting the medial aspect of the left forefoot, in addition to continuing pain related to weight-bearing function, emanating from the first metatarso-phalangeal joint. Clinically there is sound fracture union in anatomical alignment of the shafts of the first and second metatarsals. There is, however, prominent swelling of the first metatarso-phalangeal joint with significant restriction of movement, in particular flexion. In addition, there remains significant dysaesthesia, medial to the scar associated with the compound fracture over the dorsum of the left foot.”
52Mr O’Brien’s prognosis was:
“I would therefore consider that this patient now has evidence of post-traumatic arthritis of the first left tarsometatarsal joint, with significant dysaesthesia as described, which now remains a permanent situation.”
The defendant’s medico-legal reports
Mr Troy Keith, orthopaedic surgeon
53The defendant relied on a medico-legal report from Mr Troy Keith, orthopaedic surgeon.
54Mr Keith also examined the plaintiff on 18 March 2024, the same day she was examined by Dr O’Brien.
55In his report, Mr Keith referred to the present function of the plaintiff as follows:
“Though Ms Argonz experiences some pain, she is independent in all personal activities of daily living, though described difficulty undertaking a variety of activities. She described difficulty in standing for longer than forty minutes. Her walking is limited to one and a half kilometres but able to run for ten minutes. Ms Argonz reported severe difficulty walking on uneven ground and kneeling, moderate difficulty ascending, descending steps, stairs, squatting and performing household chores receiving assistance with this from her partner. She described mild difficulty arising from a seated position, no difficulty pushing and pulling or performing self-hygiene-related tasks. Prior to her injury, Ms Argonz enjoyed playing soccer, yoga, running 5 kilometres five times weekly and walking. She has returned to yoga at reduced capacity, is able to run 1.5 kilometres three times weekly and walk up to two kilometres.”
56Mr Keith did not refer to the plaintiff having osteoarthritic change. He said:
“Ms Argonz reported intermittent left foot pain symptoms localised to the first metatarsophalangeal joint and medial column of her foot with associated stiffness, sensitivity to light touch. and reported having a limp intermittingly. She reported severe difficulty walking on uneven ground and kneeling, moderate difficulty ascending, descending steps, stairs, squatting and performing household chores receiving assistance from her partner.
Ms Argonz had no difficulty dressing and undressing, moving around the examination room and was observed to squat down onto her heels to connect her mobile phone to a power board on the floor without difficulty. She walked into rooms carrying a back pack, demonstrated a normalised gait pattern with symmetrical step length and normal cadence able to walk on her tiptoes and her heels.
On palpation overlying her left foot and ankle she was irritable directly overlying the metalware insitu along the first metatarsal and metatarsophalangeal joint. Assessment of power of the left foot and ankle was limited by Ms Argonz not being able to tolerate contact directly applied to the dorsum of her left foot. There was no measurable calf atrophy and no observable temperature or colour differences between lower limbs.
On sensory testing of the left foot Ms Argonz reported increased sensation overlying the medial side of 1st metatarsal overlying the surgical scar to distal over the first metatarsophalangeal joint and 1st web space in the distribution of the superficial peroneal nerve (medial cutaneous branch) and deep peroneal nerves.”
Submissions
Plaintiff’s submissions
57It was submitted on behalf of the plaintiff that:
(a) The plaintiff suffered an undisplaced fracture of the second metatarsal, a displaced fracture of the first metatarsal and a gash on the top of her left foot. The fractures had soundly united, but prominent swelling of the first metatarsal phalangeal joint and dysaesthesia associated with the compound fracture remained. Consistent with Mr O’Brien’s opinion, the swelling and dysaesthesia had led to the development of post-traumatic osteoarthritis.
(b) The plaintiff’s injuries, including the dysaesthesia and post-traumatic osteoarthritis are permanent. Surgery to remove the plate and screws is unlikely to affect the persistent symptoms which now emanate from the first metatarsal joint.
(c) The plaintiff was an honest witness. There was nothing in the Instagram posts or other material tendered which affected her credit. She had made a genuine attempt to return to work and should be accepted as truthful. Even if there were images of her leading an active life, the images showed her in good times.
(d) Taking into account the plaintiff’s credit, the impairment consequences suffered by her rise to the level of a serious injury.
(i)Consistent with Haden v McKinnon,[17] the plaintiff experienced ongoing pain as demonstrated by her evidence during re-examination. The severity of her pain can reach 8/10 on the Visual Analogue Scale at the end of a working day, but even when not working can reach 6/10. She experiences significant painful sensation over the medial aspect of the left forefoot which is aggravated by direct pressure. Even the weight of bedclothes on the medial aspect of the left foot at night causes pain and disturbs her sleep.
[17] Haden (supra) at paragraphs [33]-[34]
(ii)In accordance with Dr O’Brien’s opinion, she has restriction in movement.
“[S]he has persistent disability associated with persistent cutaneous nerve dysaesthesia, causing ongoing problems with direct pressure, affecting Ms Argonz’s choice of footwear. In addition, Ms Argonz continues to have a problem associated with erect weight-bearing function, limiting standing and walking.”
(iii)The plaintiff’s injuries have an ongoing effect on her employment. She has returned to work driving a truck. However, in accordance with Mr O’Brien’s opinion, to limit aggravation of her left foot pain, the plaintiff’s employment is now of a more sedentary nature than before she was injured. Modified duties will be an ongoing requirement, to pursue full-time employment.
(iv)The plaintiff’s sleep has been affected. She wakes up at night and she has to be careful how she moves in bed because of the pain.
(v)The plaintiff was young – only 25 years old – when she was injured. Her youth and the long-term impacts of her injuries on her are consequences of importance. The plaintiff will have to live with the consequences of her injuries for the rest of her life.
(vi)As observed by Mr O’Brien, the plaintiff’s injuries have impacted her recreational pursuits, which are now somewhat limited. The plaintiff is unable to enjoy running in the same way she had before her injury. The plaintiff cannot play soccer as she used to, not even social soccer. She is fearful of kicking with her left foot and of another player stepping on her foot. She has tried to go back to yoga and running on a treadmill, but she has had to adjust her activities.
(vii)The plaintiff is limited in her domestic and social pursuits. This consequence is likely to be ongoing.
(viii)She is stoic.
Defendant’s submissions
58The defendant submitted that:
(a) The plaintiff suffered a significant fracture to her left foot at the time of injury, but she recovered to such an extent that the consequences of the plaintiff’s injury do not reach the threshold required to constitute a serious injury. According to Mr Keith, there was no osteoarthritic change. The plaintiff had returned to work on full duties; the fracture was extra articular and did not involve the joint surface and, on examination, no swelling could be located.
(b) Further, the plaintiff’s injury was not permanent. Mr Falkenberg, the treating surgeon, gave a prognosis that the injury and impairment were not likely to be permanent. His opinion at the time of surgery was there was no major damage to the nerves and tendons and the bone fracture should heal with treatment. Even if the internal fixation was now causing the plaintiff problems, it could be removed when the plaintiff returned to Argentina.
(c) Even if the plaintiff has a permanent injury which is significant, the consequences fall well-short of the level required to give rise to a serious injury. At the date of trial, the plaintiff was a fit 28-year-old woman. She ceased treatment for her injury within months of if occurring. She only sought physiotherapy treatment as the trial approached. She has returned to fulltime employment in the mines in Western Australia earning well over $100,000 a year. She can still play soccer, even if she could no longer play soccer at a high level. She can still run and any claimed loss of ability to run following the accident is exaggerated. Even if the plaintiff’s ability to run is now less than it was before the accident, she has substituted other exercise for running, like attending the gym, or doing yoga or Pilates.
(d) Further, while impairment is concerned with what has been lost, the significance of what has been lost, which bears on the seriousness of the consequences, may be informed by what is retained. The plaintiff has not suffered a serious injury when what has been retained is considered. She is currently living a full, enjoyable and happy life. She has travelled extensively. She has spent time outdoors at lakes, rivers and forests, and traversing uneven surfaces and hills. She has returned to work full-time. The impairment consequences of the plaintiff’s injury do not rise to the level of being a serious injury.
(e) Finally, the plaintiff is not stoic simply because she has returned to work. She has not sought treatment or assistance. This may be because she has had an effective recovery not because she is stoic.
Credit
59My impression of the plaintiff as a witness was that she was a straightforward and honest witness. She did not appear to me to exaggerate or embellish her evidence, or to underscore her pain and suffering consequences.
60The defendant cross-examined the plaintiff about where she was living when she swore the Plaintiff’s Second Affidavit. It was put to her that she was not living at the address at 115 Mill Road, Witchcliffe, Western Australia stated in the Plaintiff’s Second Affidavit, when she swore that affidavit, even though that address was stated to be her address at that time. She accepted that. She said it was her postal address. She said her postal address changes all the time. Working at a mine, that is understandable. I do not consider it affects the plaintiff’s credit.
61The plaintiff was also cross-examined about the affidavit which had been sworn by her solicitor on her behalf in support of the application and specifically why the trial date in May 2024 had been adjourned. It was put to the plaintiff that from 24 May to 23 June 2024, she was not in fact working at the mine, yet an affidavit sworn by her solicitor had said she was unavailable during that period because she would be at the mine. The plaintiff accepted she had not been at the mine on 13 June 2024. She was shown a photo of Margaret River. She accepted she was in Margaret River. She explained this by identifying she had also said she may have had a change in schedule, or she may have had a week off between “swings”, or the dates between when she flew in and out of the mine. Not much turns on this. The plaintiff’s solicitor swore the affidavit not her. Even if it was taken to be based on instructions provided by the plaintiff, it is possible, in an environment of shift work, that rosters may have changed. I do not consider these matters impact the plaintiff’s credit.
62I accept the plaintiff was a truthful witness.
Compensable injury
63There was no dispute that the plaintiff suffered a compensable injury.
64The plaintiff suffered a transverse fracture of the first metatarsal between the junction of the distal one-third / proximal two-thirds with valgus displacement and angulation. Despite being treated surgically with open reduction and internal fixation using a plate and multiple screws, with subsequent union of the second and first metatarsal fractures in anatomical alignment, I accept the plaintiff remained symptomatic.
65I accept the plaintiff has continuing pain and restriction in movement related to weight-bearing function. The pain emanates from the first metatarsophalangeal joint where the plaintiff also has some swelling and dysaesthesia.
66Mr O’Brien considered the plaintiff had swelling and dysaesthesia which led to the development of post-traumatic osteoarthritis. Mr Keith considered there was no osteoarthritic change. He opined the fracture was extra articular and did not involve the joint surface. Further, when he examined the plaintiff, he said no swelling could be located.
67Both Mr O’Brien and Mr Keith examined the plaintiff on the same day. For that reason, it is difficult to explain their divergent opinions. Having examined the plaintiff at trial, I observed a considerable sideways protrusion on her left foot caused by the metalware in situ. I also observed the limits to the flexion of the plaintiff’s left foot when she showed the Court how far she could flex her foot and stand on her toes. As the metalware remains in the plaintiff’s left foot, it provides an explanation for the pain and dysfunction reported by her. I consequently accept the opinion of Mr O’Brien in preference to that of Mr Keith. It follows that I accept the plaintiff experiences swelling and dysaesthesia which have led to the development of post-traumatic osteoarthritis.
68I find the plaintiff suffered a transverse fracture of the first metatarsal between the junction of the distal one-third/proximal two-thirds with valgus displacement and angulation. The first metatarsal fractures are now in anatomical alignment, but I accept the plaintiff remains symptomatic. She experiences pain, swelling and dysaesthesia which have led to the development of post-traumatic osteoarthritis.
Permanence
69There was debate between the parties as to whether the plaintiff’s injuries were permanent. This was because the plaintiff said when her working visa in Australia expires in October 2024, she plans to leave Australia and return to Argentina. Returning to Argentina will allow her to proceed with the removal of the metal plate. She will have the support of her family and friends, including her father who is a medical practitioner.
70The defendant contended the plaintiff’s injury was not permanent. Mr Falkenberg, the plaintiff’s treating surgeon, had expressed an optimistic outlook for the plaintiff at the time he performed surgery. He had not recommended further treatment and had expected the plaintiff’s fractures to heal with treatment. Further, even if they had not, the plaintiff, upon returning to Argentina, was likely to undergo surgery to have the metalware removed from her foot, which might resolve any residual pain she experienced.
71I do not accept the defendant’s submission. Mr Falkenberg did not see the plaintiff after he performed surgery. His opinion does not assist in understanding the permanence or otherwise of the plaintiff’s injuries now. Dr O’Brien and Mr Keith saw the plaintiff on the same day. They expressed different opinions about the plaintiff’s injuries. I have preferred the opinions of Dr O’Brien.
72While I accept, as Mr Keith stated, it is open to the plaintiff to undergo further surgery, whether in Australia or Argentina, it is possible further surgery may resolve any residual issues the plaintiff experiences. However, there is no certainty that would be the case. Further, I am required to assess permanence at the date of the trial. When these matters are taken into account, I have formed the view that the plaintiff’s injury is permanent in the sense that it will persist into the foreseeable future.
Plaintiff’s claimed consequences of the injury
73In her first affidavit, affirmed 6 September 2023, the plaintiff described her pain and suffering consequences as follows:
“19. My injury has had a significant impact on my social, recreational, and domestic capacities. I was forced to cease employment for about 3 to 4 months due to my injury.
20. I have a very large scar on the side of my left foot and an ugly scar on the top of my left foot, which I find embarrassing. I also have sensitivity along the scar and a lot of numbness at the site of both the scar and the surgery.
21. My injury has caused me to limp from time to time. In Argentina I was active and perform lots of different activites [sic] and sports. I have always been a very keen soccer player.
22. When I moved to Australia, I regularly exercised which involved walking, social soccer, jogging, running, aerobic exercises and yoga.
23. Since my injury, I have been restricted in performing the activities I enjoyed before my injury including running and jogging. Before my injury I enjoyed going for 5 kilometre runs regularly on average 5 days a week. Since my injury I have not been able to go jogging on running due to left foot pain.
24. My injury has caused me to stop playing soccer. I can’t kick the ball with my left foot. I have tried to play soccer since my injury, but it was a failure as I was finding it much to painful to kick the ball, to run and also, I was very concerned about having another player injuring my foot [sic],
25. My ability to walk has also been affected. I did a lot of long-distance walking before my injury. I find that since my injury I walk for shorter distances as the longer I walk my foot starts to hurt.
26. Immediately after my injury I was given painkillers to ease the pain. I am reluctant to continue to take painkillers as I have a dislike for taking medication.
27. Since my injury I have also had to join a gym to exercise. I started weight training as a way of getting fit as I have lost a lot of mobility to walk and run. I don’t use the treadmill at the gym as it is painful to my foot. I have been using the spinning bike for some aerobic exercises. I find at times I have to stop riding the bike due to a painful left foot.
28. I am also concerned that I will require further surgery to my foot. I have been advised that I may need to have the plate removed from my foot. I am concerned about having further surgery in the absence of assistance. I have not been given a timeframe within which the plate will be removed however if it is required my aim is to have it done back at home in Argentina where I have family and friends to support me after the procedure. This is something I am not looking forward to.
29. My injury has also had an impact on my sleep. I wake up regularly at night in pain. I also suffer from numbness. It is very distracting, and it also has had a big effect on my sense of wellbeing.
30. I also suffered from a lot of stress and anxiety as a result of my injury. I felt abandoned by the employer and the insurance company after the surgery. I attempted to return to work without any assistance. I could not find employment which suited my medical incapacity. I felt like I was alone at the time and without support. This made the effects of the injury much worse.”
74In her further affidavit, affirmed 28 May 2024, the plaintiff maintained that she continued to suffer from the restrictions previously outlined. In addition, she deposed:
“11. My left foot and toe are painful every day. I have to be careful walking long distances. Walking aggravates my toe and foot.
12. When I was in Argentina over the summer period, I was doing a lot of walking which stirred up a significant amount of pain in my left foot. The pain became quite severe which led me to undergo a further x-ray of my toe. My left foot compared to my right foot is deformed, in the sense that my left great toe is larger than my right great toe.
13. I have been prescribed pain killing medication recently due to left foot and toe pain. I took it for approximately 2 days however I suffered from side effects, mainly swollen stomach. I have been reluctant to take pain killing medication over the years due to side effects and I generally take Ibuprofen when necessary.
14. My left toe appears larger than my right toe. I am self-conscious about my toe. I am cautious about knocking my left foot or toe. I suffer extreme pain if my knock my left foot and toe [sic]. I have to be very careful not to perform any activities which could put at risk my left foot. When I wear work boots my toe feels restricted and puts pressure on the plate and screws.
15. I tend to wear open sandals when its warm and when I am not at work. The open sandals do not place any pressure on my left toe or foot. I have to be particularly careful when I am wearing sandals not to knock my foot as any knock can cause severe pain.
16. I feel unbalanced a lot of the time. I place a lot of weight on my right foot to favour my left foot. This causes pain in my legs. The physiotherapy treatment I was receiving mainly focused on leg pain. I feel that my left foot looks ugly as it has a super weird shape and a scar on the top of my foot. I am reminded of my ugly foot daily.
17. I am also concerned about the plate and screws which are in my big left toe. I have spoken to my general practitioner on several occasions about the need for further surgery which I understand will be the removal of the plate and screws. I am reluctant to proceed to further surgery as I do not want to go through another procedure by myself in Australia without family.
18. My foot has also caused me a lot of difficulties performing activities of daily living such as walking, hiking, exercising and riding a push bike. I have enjoyed playing soccer over many years and my injury has caused me to stop playing soccer with my friends. When I returned to Argentina, I watched my friends playing social soccer. Since my injury I have not been able to return to soccer due to pain. As a result of my injury I cannot strike the ball with my left foot without significant pain. I use both feet to kick the ball. I have attempted to return to soccer without success.
19. I refer to paragraph 29 of my First Affidavit and say that my injury continues to impact my sleep when I am in bed. I have to be careful that I do not place too much pressure on my left foot as it causes pain. I regularly wake up with significant pain having placed too much pressure on my left foot when I am asleep. I am regularly waking up to adjust my position in bed to ensure I do not unnecessarily put pressure on my foot.
20. I refer to paragraph 30 of my First Affidavit and say that I continue to suffer from a lot of stress and anxiety as a result of my injury.”
Analysis and findings
75One of the principal issues in dispute was whether the plaintiff’s claimed consequences were more than significant or marked and at least very considerable.
Pain
76The plaintiff has stated that her left foot and toes are painful “every day”, and that this pain affects her daily activities and can be aggravated by certain types of exercise or walking long distances.
77The severity of the pain, as reported by Dr O’Brien, can reach 8/10 on a Visual Analogue Scale at the end of a working day. The pain may be less when not working but can still reach 6/10.
78The plaintiff experiences the pain over the medial aspect of her left forefoot. The pain is aggravated by direct pressure. Any inward stretch of the skin causes severe pain. The pain impacts her ability to put on shoes and socks and disrupts the plaintiff’s sleep.
79The presence of the metalware in situ in the plaintiff’s left foot provides an explanation for the pain experienced by the plaintiff as well as her inability to weight bear on her left foot or to be as active as she had been before the accident.
80I accept the plaintiff experiences considerable pain in her left foot.
Medication and medical treatment
81The plaintiff does not take any regular medication as a result of pain stemming from her injury.
82She agreed in cross-examination she got by without medication during 2022, 2023 and for most of 2024. She said she took pain medication immediately after her injury but said since then she has been “reluctant to take pain killing medication … due to side effects” although she will take Ibuprofen “when necessary”. She has a “dislike” for medication and taking prescription medication in the past has resulted in a “swollen stomach”.
83She said more recently, on 6 March 2024, she saw Dr Macliver in Dunsborough because she was continuing to suffer pain. As I have found the plaintiff to be credible, I accept she was continuing to experience pain.
84The plaintiff said she advised Dr Macliver that she had been doing a lot of walking when she was in Argentina which had made her left foot more painful. He had advised her she required painkilling medication. He prescribed Celebrex. He also said the pain was probably related to the plate and screws in her foot. He recommended the plaintiff seek opinion from a surgeon about removing the metalware in her foot.
85The plaintiff had undergone physiotherapy four times in 2024. It was suggested she had not had physiotherapy in 2022 and 2023. She disagreed. She did not know how many sessions she had in 2023, but said she had some treatment “but very little.” She also accepted the treatment she has had in 2024 has been minimal. She had four sessions of physiotherapy with Mike Pope to treat the pain. The last was in April 2024. The physiotherapy was mostly for her legs because when she limited the weight she placed on her left leg, she placed greater weight on her right leg.
86The plaintiff explained her treatment options are limited because she works in the mines. There is only one general practitioner working in the area where she is employed, and she has to wait to be able to see Mr Pope.
87Although she continues to experience pain, the plaintiff said she was reluctant to have further surgery in Australia without the support of her family.
88I accept the plaintiff requires minimal medication to treat her pain. However, I do not accept this is because her pain is less than she claims. There are legitimate reasons why she does not take painkilling medication.
Work capacity
89The plaintiff makes no claim for loss of earnings or loss of earning capacity. However, she claimed her ability to obtain employment had been impacted by her injury. She stated in her first affidavit:
“32. Despite not claiming a loss of earnings, my injury has impacted on my ability to obtain employment. The range of jobs that I am physically able to perform are limited as I am not able to do tasks which involve a lot of walking and moving around.
33. I attempted to work as a food runner in a restaurant in Western Australia, but I had to stop for after a short period of time as my foot was painful and hurt with walking or standing.
34. Since my injury I have obtained work in jobs which require a mainly sitting. I have avoided applying for work which involves a lot of walking as I like the physical capability of performing the work tasks. This has narrowed my employment options and has also impacted on my sense of well-being.”
90Whilst the plaintiff has continued to work since her injury and has maintained earnings of about $92,000 over a 10-month period that she has worked, I accept there has been some, although not significant, impact to her ability to gain employment in certain roles.
Sleep
91The plaintiff’s evidence was her pain impacts her sleep on a regular basis. She claimed to regularly “wake up with significant pain [when] having placed too much pressure on [her] left foot”.
92The plaintiff reported to Mr O’Brien that her sleep could be impacted by the “weight of bedclothes on the medial aspect of the left foot at night” resulting in pain and sleep disturbance.
93Similarly, the plaintiff reported to Mr Keith a noticeable reduction in sleep, stating she used to sleep “for ten hours prior to the accident” and following the injury could only sleep “between four and seven hours”.
94The plaintiff was cross-examined about the impact of her injury on her sleep. She accepted her injury did not cause her pain if she was sleeping facing up. Notwithstanding that concession, her sleep is impacted. She often has to adjust her positioning in bed to avoid pain. Her nightly sleep has been reduced by several hours. I accept the plaintiff has a lesser quality and length of sleep now as a result of the pain in her left foot than she did before the accident.
Mobility
95In her first affidavit, the plaintiff stated she had started weight training as a way “of getting fit as I have lost a lot of mobility to walk and run”.
96She reported to Mr O’Brien that her ability to run was significantly reduced, and that she had difficulty squatting. She walks with a limp which she said was because of the pain she experiences.
97The plaintiff told Mr Keith her walking was limited to one and a half kilometres, but she was able to run for 10 minutes. She also reported “severe difficulty walking on uneven ground and kneeling, moderate difficulty ascending, descending steps, stairs, squatting … She described mild difficulty arising from a seated position …”
98I accept the plaintiff’s mobility has been impacted to a great degree. She has difficulty squatting and has reduced mobility when walking and running. Additionally, at times she has a limp.
Activities of daily living
99In the Plaintiff’s Second Affidavit, the plaintiff stated:
“My foot has also caused me a lot of difficulties performing activities of daily living such as walking, hiking, exercising and riding a push bike.”
100She said her injury causes her to limp.
101The plaintiff stated to Mr O’Brien that she was quite capable of the “normal activities of daily living” but that she did have some problems dressing, or whenever there was direct pressure on her left foot.
102Further, Mr Keith reported the following:
“Though Ms Argonz experiences some pain, he [sic] is independent in all personal activities of daily living, though described difficulty undertaking a variety of activities. She described difficulty in standing for longer than forty minutes. Her walking is limited to one and a half kilometres but able to run for ten minutes.
Ms Argonz reported severe difficulty walking on uneven ground and kneeling, moderate difficulty ascending, descending steps, stairs, squatting and performing household chores receiving assistance with this from her partner. She described mild difficulty arising from a seated position, no difficulty pushing and pulling or performing self hygiene-related tasks.”
103I accept that the injury has impacted the plaintiff’s daily life to a moderate degree. Whilst the plaintiff can complete most tasks, dressing can be an issue for the plaintiff, as well as any activity that requires pressure on her left foot.
Soccer
104Prior to her injury, the plaintiff said she was an avid soccer player and runner. She was questioned about her claims and she accepted that after arriving in Australia, she did not join a soccer club but played socially with the Argentinian community, either on weekends or Wednesday nights. It was suggested she could continue to play soccer socially. The plaintiff accepted "I could play around casually, but not in a serious match". However, she noted that to play soccer requires the use of both feet. She is now unable to “kick the ball with her left foot”. She finds it too painful. She is also concerned about another player injuring her foot. Additionally, soccer is not like tennis, where only one side of the body is used. Soccer involves running and controlling the ball with both feet which she cannot do. I accept the plaintiff could still theoretically “play” soccer in a social setting but, given the active lifestyle she previously lived (and continues to try to maintain), I accept her ability to play soccer has been impacted to a reasonable level, especially because of her inability to kick with her left foot and her fear of other players injuring her further or causing pain to her left foot.
Running
105In the Plaintiff’s First Affidavit, the plaintiff stated that prior to her injury, she regularly ran 5 kilometres “on average 5 days a week”. In the Plaintiff’s Second Affidavit she said she had not been able to go jogging or running since her injury.
106The plaintiff was cross-examined about her evidence and the defendant contended she was still able to run. She was asked about the records of the general practitioner in Busselton, which recorded in May 2022, four to five months after the accident, she went for a run which caused mild soreness the next day. When cross-examined, the plaintiff accepted when she swore the Plaintiff’s Second Affidavit in September 2023 it was not true that since her injury, she had not been able to go jogging or running. The plaintiff said she had attempted to go running but it was "not as comfortable as before." She explained, "I need to run for my mental health." Although she acknowledged that she does run occasionally, it was apparent her running has been curtailed considerably since she was injured and when the plaintiff runs, she experiences pain.
107I find that the limitations on the plaintiff’s ability to run are a very considerable consequence for her. Whereas she used to run 5 kilometres per day, five days a week, as a consequence of the injury this has been reduced to approximately 1.5 kilometres, three day a week. While she has still retained an ability to run, it is not without considerable pain.
Walking
108The plaintiff stated she did “a lot of long-distance walking” before her injury. Since her injury she said her foot has caused her to experience a lot of difficulties performing activities of daily living such as walking, hiking, exercising and riding a push bike.
109The plaintiff was cross-examined about her hikes in nature. A short video from Instagram was played in which the plaintiff was observed climbing down a dusty, somewhat rocky, or at least uneven, hill surface. She accepted it was her in the videoclip and said there would be many photos of her walking and hiking in Patagonia, Argentina. She agreed she had hiked on rocky paths. She said she only did so “if it is worth the context.” As she explained in re-examination, she “copes with the pain” because she cannot “just stay sitting, doing nothing.”
110I accept the plaintiff can still walk and hike. However, like running, she cannot do this in the same way she once did. Her foot causes her pain, and walking is now more difficult.
Driving
111The plaintiff’s evidence was she can and does drive for work as a truck driver, albeit using her right foot only. She has stated “[i]f I was required to use my left foot, I would find it very difficult to perform the truck driving duties I performed”.[18]
[18] Exhibit B, JCB 8 at [9]
112I do not accept that the plaintiff’s ability to drive has been significantly impacted by her work injury.
Travel
113The plaintiff accepted that she has been able to travel and that she has travelled extensively throughout Australia and also overseas. She is able to carry a backpack and when travelling can use and look after her own luggage. I do not find that she has lost the ability to travel.
Age
114The plaintiff was 25 years old at the time of the injury. I take into account her young age and the implications of her injury on her life going forward.
115It was apparent from the plaintiff’s evidence that subjectively the impairment consequences of her injury have been very significant.
116In making an objective assessment of whether the pain and suffering consequences to the plaintiff of the impairment to her left lower limb are “serious”, I have considered other cases in the range of possible impairments. The plaintiff experiences very considerable daily pain. Although she does not take prescription medication, there are legitimate reasons why.
117Her sensation is impacted when she uses her left foot to walk, to attempt to run or play sport. She can only stand for 40 minutes at a time.
118Her injury impacts her sleep. The plaintiff’s activities of daily living and her enjoyment of life have been affected.
119Her mobility has been significantly curtailed which, given her very young age, the permanence of her injury and the importance of mobility in daily life, is a very significant consequence.
120Further, the plaintiff’s physical activity has greatly diminished since the accident. The plaintiff’s pre-injury physical activity has a bearing on the Court’s assessment of the consequences to the plaintiff of the left lower limb injury. The plaintiff’s evidence was that prior to the accident she had led a very full and active life. Since the accident, she has endeavoured to maintain her previous active lifestyle despite the pain she now experiences. I am persuaded the substantial reduction in her exercise regimen is a consequence that is very significant for her. Her love of running has been significantly impacted.
121Additionally, the plaintiff was only 25 years old when injured and will have to live with the consequences of her left foot injury for the remainder of her life.
122In undertaking the required assessment of the plaintiff’s account of her pain and suffering and claimed consequences, I have had regard to what has been retained by the plaintiff as well as what has been lost. The plaintiff has returned to work. She has retained some ability to still play social soccer, to walk and to run. She is able to drive. On one view, what has been retained tends against a conclusion that the pain and suffering consequences are at least very considerable. Nevertheless, there are cases where this will not be the case. In my view, this is such a case.
123The plaintiff submitted she was stoical. I accept this. To her credit, she has endeavoured to get on with her life. She has only been able to return to work and continue to be active, albeit to a lesser extent that she once was, because she cannot “just stay sitting, doing nothing.” As she said, she has to get on with her life and she has done this, but “in pain”. She was evidently distressed when recounting this to the court in re-examination. She should not be judged more harshly than another person who might otherwise have resigned themselves to their injury.
124Individually, it may be the case the plaintiff’s claimed consequences would not be sufficient to meet the threshold. However, taking into account all the evidence after considering other cases in the range of possible impairments, I am satisfied the plaintiff’s impairment consequences can “be fairly described as being more than significant or marked” and as being “at least very considerable”.
Conclusion
125The plaintiff has established on the balance of probabilities that the pain and suffering consequences of the impairment or loss of the function of her left foot are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being “more than significant or marked”, and as being “at least very considerable”.
126Accordingly, I grant the plaintiff leave to bring common law proceedings to recover pain and suffering damages.
127I will hear argument with respect to costs.
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