Ewers v Victorian WorkCover Authority
[2018] VCC 906
•21 June 2018
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-03727
| MATTHEW JAMES EWERS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 17 May 2018 | |
DATE OF JUDGMENT: | 21 June 2018 | |
CASE MAY BE CITED AS: | Ewers v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 906 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left hand – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b); Transport Accident Act 1986 (Vic)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Ingram v Ingram & Transport Accident Commission (1996) 2 VR 435; Baker v Transport Accident Commission & D’Alberto (1997) 1 VR 662; Storto v DJW Management Pty Ltd [2015] VCC 1759; Hollis v Transport Accident Commission [2011] VCC 502; Transport Accident Commission v Garcia [2015] VSCA 225; Richards & Anor v Wylie (2000) 1 VR 79; Porto v Design Line Cabinets Pty Ltd (Deregistered) & Victorian WorkCover Authority [2012] VCC 1645; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Ms R Dal Pra | Maurice Blackburn |
| For the Defendant | Mr A Moulds QC with Ms G Cooper | Wisewould Mahony |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by him in the course of his employment with Lifestyle Builders Geelong Pty Ltd (“the employer”) on 3 December 2014.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clauses (a) and (b) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement.”
5 The body function relied upon in this application is injury to the left hand. The disfigurement is scarring to the left hand.
6 The plaintiff relied upon two affidavits, sworn 16 March 2017 and 3 May 2018. I have not summarised the plaintiff’s affidavits or his evidence in cross-examination. However, I will refer to the relevant evidence in my reasons. In addition, the plaintiff relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)the “injury” suffered by him arose out of or in the course of or due to the nature of his employment with the employer;
(b)the “injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future;[1]
(c)the “consequences” to the plaintiff of his impairment/disfigurement to the left hand in relation to the “pain and suffering” must be “serious”, that is, when judged by comparison with other cases in the range of possible impairments/disfigurements be fairly described as “more than significant or marked” and as being “at least very considerable”;[2]
(d)“permanent serious disfigurement” was considered by Callaway JA in Ingram v Ingram & Transport Accident Commission:[3]
“Quite apart from authority, it is important not to read para(b) in isolation. ‘Permanent serious disfigurement’ within the intendment of the statute must be such disfigurement as bears comparison with such injuries as serious long-term impairment of a bodily function, severe long-term mental illness and loss of an unborn child.”
[1]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[2]Section 134AB(38)(b) and s134AB(38)(c) of the Act
[3](1996) 2 VR 435 at 438
9 In determining whether scarring is “a serious injury”, regard ought to be had to the number of scars, and the location, size and degree of obviousness of the scarring.[4] The organic symptoms experienced by the plaintiff due to the presence of the disfigurement may be taken into account when assessing the pain and suffering consequences of the disfigurement (if they are appropriately characterised as being an expected consequence of the disfigurement, but not if they are the product of a physical injury which, by itself, produces an impairment of a body function).[5] Sensitivity of the surface of the scar is, therefore, a matter that may be taken into account when assessing the seriousness of the plaintiff’s disfigurement.[6]
[4]Baker v Transport Accident Commission & D'Alberto (1997) 1 VR 662 at 663, per Brooking JA; Storto v DJW Management Pty Ltd [2015] VCC 1759 at paragraph [276], per Judge K L Bourke
[5]Hollis v Transport Accident Commission [2011] VCC 502 at paragraph [10], per Judge Saccardo
[6](Supra) at paragraph [11]
10 In Transport Accident Commission v Garcia,[7] the Court of Appeal made reference to the earlier decisions of Ingram v Ingram & Anor[8] and Baker v Transport Accident Commission & D’Alberto[9] and also referred to a subsequent decision of Richards & Anor v Wylie,[10] wherein the Court of Appeal (consisting of Winneke P and Buchanan and Chernov JJA) held that in a case concerning paragraph (a) of the definition of “serious injury” contained in s93 of the Transport Accident Act 1986, seriousness could be measured in part by a mental response to a particular physical impairment.
[7][2015] VSCA 225
[8]Supra
[9]Supra
[10](2000) 1 VR 79
11 In particular, I refer to paragraph [27] of Garcia, wherein the Court of Appeal states:
“Richards was decided after Ingram and Baker. Since Richards, there has been no doubt that in serious injury applications under s 93 of the Act, where para (a) of the definition of ‘serious injury’ is relied upon, a psychological consequence of the relevant injury may be taken into account when assessing seriousness. By the same reasoning process as applies in para (a) cases, a psychological consequence of permanent disfigurement may also be taken into account when assessing seriousness in a para (b) case.”[11]
[11]Supra
12 There is no equivalent case to Richards & Anor v Wylie[12] applicable to s134AB of the Act. In fact, s134AB(38)(h) of the Act provides that:
“… the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.”
[12]Supra
13 No such provision is contained within the Transport Accident Act 1986.
14 The Serious Injury Manual produced by the Judicial College of Victoria states that it is “unclear” whether the reasoning in Garcia[13] applies to a serious injury application under the Act given the existence of s134AB(38)(h). The Manual goes on to state:
“The answer may depend on whether a disfigurement is a ‘physical injury’ for the purposes of these provisions and whether pain and suffering consequences in the form of loss of amenity, which are commonly recognised in relation to physical impairment, are similarly applicable to disfiguring injuries.”[14]
[13]Supra
[14]Serious Injury Manual, Judicial College of Victoria, Melbourne, 2014 at paragraph [4.1.4(3)] viewed 25 January 2016
15 It is clear that s134AB(38) requires that the pain and suffering consequences in relation to permanent serious disfigurement must be assessed and then compared with other disfigurements, and on the basis of such comparison, if capable of being described as more than significant or marked and as being at least very considerable, would then entitle the claimant to a finding of “serious injury”.
16 When assessing whether the pain and suffering consequences of the plaintiff’s disfigurement are “serious”, the Court:
“… must not take into account psychological or psychiatric consequences of ‘the injury’. These can only be taken into account for the purposes of paragraph (c) of the definition of ‘serious injury’, and not for the purposes of paragraph (a) or (b).”[15]
[15]Porto v Design Line Cabinets Pty Ltd (Deregistered) & Victorian WorkCover Authority [2015] VCC 1645 at paragraph [8(a)] per Judge Parrish
17 This is to be contrasted with applications for serious injury pursuant to s93(17)(b) of the Transport Accident Act 1986 (Vic) in which a plaintiff’s emotional and psychological response to the disfigurement can be taken into account in the assessment of the pain and suffering consequences of the disfigurement.[16]
[16]Transport Accident Commission v Garcia (supra) at paragraph [27]
Issues
18 Counsel for the defendant informed the Court that the defendant accepts there has been an initial injury to the left index finger and associated injuries to other fingers. The plaintiff has made a good recovery and any disfigurement and or impairment to the function of the left hand does not meet the test of “very considerable”.
Credit
19 The plaintiff’s credit was not in issue. He answered questions directly and without exaggeration.
Background
20 The plaintiff is right hand dominant. It was not in issue that the plaintiff injured his left hand at work on 3 December 2014 when working with the employer as an apprentice carpenter. The plaintiff was using a table saw to cut a length of timber. He was using a plastic lock to push a piece of wood into a circular saw machine, his left hand slipped and went into the machine. He lacerated his index and middle fingers and thumb on his left hand.
21 The plaintiff was hospitalised at Barwon Health. His left thumb laceration was debrided and sutured. The plaintiff’s left index finger flexor tendon and ligament were repaired and sutured. The radial digital artery was repaired with a vein graft from the back of his hand and the radial digital nerve was repaired with a nerve graft from his forearm. The ulnar digital artery and nerve of the left index finger were not repaired. The plaintiff’s middle finger flexor tendon, radial and ulnar digital nerve and radial distal artery were repaired with sutures.
22 The plaintiff remained in hospital for a further four days following his surgery and had sixteen sessions of hand therapy at the Occupational Therapy Hand Clinic between December 2014 and December 2015. He also had follow up sessions with the Plastic Surgery Clinic on six occasions between December 2014 and December 2015. The plaintiff was discharged from the Plastic Surgery Clinic at his last review on 7 December 2015, as the surgeon felt that surgery would not improve sensation in his left index finger.
23 The plaintiff was off work for three months, returning to modified duties. He resumed normal duties about two weeks later.
The current medical evidence
24 In January 2017, Mr John Buntine, plastic and hand surgeon, examined the plaintiff at the request of the defendant. Mr Buntine diagnosed deep scarring causing a flexion contraction of the proximal interphalangeal joint of the left index finger. He said the cutaneous scars of the injured digits are not significantly troublesome but there are conspicuous but otherwise non troublesome scars of the dorsum of the left hand, and a reddened stretched but otherwise satisfactory scar of the uppermost medial part of the volar surface of the left forearm (which results from removal of a segment of the anterior branch of the medial cutaneous nerve of the forearm to serve as a nerve graft).
25 Mr Buntine said that there was little change to occur except for continued slow fading of the residual redness from the scars on the dorsum of the left hand and the scar close to the left elbow. The plaintiff had resumed his apprenticeship and Mr Buntine said he was not likely to suffer injury/harm from engaging in his work and daily activities. Mr Buntine said the decision not to attempt to improve the left index finger by further surgery was appropriate.
26 In August 2017, the plaintiff was medically examined by Mr Murray J Stapleton, plastic and hand surgeon, at the request of the plaintiff’s solicitor. The plaintiff reported suffering pain in his index finger in cold weather. The power of his grip had diminished. He had tingles but not normal sensation on the complete length of both the index and middle fingers. When he picks up small objects such as small nails, he is inclined to place the pulp of the left thumb against the pulp of the ring finger. Mr Stapleton said the plaintiff’s thumb had now completely recovered. He said the plaintiff had a reduced range of flexion and extension of the index and middle fingers. He has a limited extension capacity of the middle finger and he notes this is a problem when he is taking tools from his toolbox at work or retrieving objects in his trouser pockets.
27 Mr Stapleton diagnosed a deep laceration involving the plaintiff’s left thumb, index and middle fingers. The index and middle fingers have suffered arterial and sensory nerve damage. The plaintiff reported returning to normal duties with care, but lifting, pushing and pulling are difficult for him, as are fine manipulative activities for reasons stated. The plaintiff reported he was learning to work around his injury, which is on his non-dominant side. His condition should be regarded as having reached its maximum medical improvement.
28 Mr Stapleton said the plaintiff does not require suitable employment. His social, domestic and recreational activities are affected because, in general terms, his left hand gives him an awkwardness that was not formerly the case. He said the plaintiff had returned to work without any specific restrictions, other than what he would impose upon himself. He said his current position is permanent and there is no need for future treatment.
29 In January 2018, Dr Murad, general practitioner, said he saw the plaintiff. Dr Murad said the plaintiff has a fixed flexion deformity on his left index finger. The plaintiff reported he has trouble picking up things and using a drill machine. He said the plaintiff is left with a left index deformity which has caused issues for him at work.
30 Counsel for the defendant accepted that the plaintiff’s scars are permanent and that he has received maximum medical improvement, save for some continued slow fading of the residual redness from the scars of the left hand and close to the left elbow.
Pain and suffering consequences of the scarring/disfigurement
31 I shall now consider the pain and suffering consequences of the scarring/disfigurement.
32 I am satisfied that there is an impairment of the left hand, and such impairment is “permanent” within the meaning of the Act. This is clear from observation. Furthermore, I am satisfied that there is disfigurement to the left hand, manifested by lacerations to his left index finger, left thumb and left middle finger. The plaintiff is left with a flexion deformity and thinness of the left index finger. He has a 3.5-centimetre scar over the dorsum of the hand, a 2‑centimetre scar on the left middle finger, a 3-centimetre scar on the left middle finger, a 2-centimetre scar on the left thumb and a 3.5-centimetre scar on the uppermost medial aspect of the left forearm.
33 The scarring is permanent and has reached maximal improvement, except for a continued slow fading of residual redness from the scars on the left hand and close to the elbow. In Court, I inspected the plaintiff’s left hand and formed the view that the redness was very feint.
34 The plaintiff’s evidence was that the scarring/disfigurement makes some of the fine motor movements more difficult.
35 The medical evidence is that there is no further treatment required and no further surgery.
36 There is no evidence that the scarring/disfigurement has any significant effect upon his work.
37 The plaintiff’s evidence is that he is embarrassed by the appearance of his left index finger. His finger looks strange and unusual and he does not like talking about it. The psychological or emotional consequences to the disfigurement are matters I cannot take into account by reason of s134AB(38)(h). There is no evidence that the soreness is a consequence of the disfigurement as opposed to the physical injury and the consequential surgery.
38 What was in issue was the consequences of the plaintiff’s scarring and disfigurement and whether they meet the test of seriousness for pain and suffering, in that they could be considered “more than significant or marked”, and as being “at least very considerable when compared with other cases in the range”.
39 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[17]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[17][1998] 1 VR 702 at paragraph [13]
40 Section 93 of the Act was intended to restrict the availability of common law damages to plaintiffs whose impairments were of “very considerable” magnitude.
41 Section 134AB(38)(c) of the Act adopts the language as in s93 of the Transport Accident Act. As such, I rely upon the same reasoning as would be relied under the Transport Accident Act.
42 In determining the application, it is has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[18]
[18]See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628 and Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
43 I accept that left hand scarring and disfigurement has had consequences to the plaintiff which are considerable, but I am not satisfied that, when judged by a comparison with other cases in the range of possible impairments, the injury can fairly be described as being “more than significant or marked”, and as being “at least very considerable”. In reaching my decision, I have read a number of authorities and previous County Court cases in which serious injury applications involving scarring and disfigurement worse than or similar to the plaintiff’s have been rejected.
44 Accordingly, I dismiss the application in respect to the scarring and disfigurement.
45 I shall now consider the physical injury.
Pain and suffering consequences of the physical injury
46 I shall now consider the consequences to the physical injury. The physical injury is to the plaintiff’s left hand, his non-dominant hand.
Pain
47 The plaintiff’s current evidence is that he suffers from ongoing pain with the use of his left index finger. By the end of his working day, he generally has pain in his left index finger which he assesses at 3 to 4 out of 10. In the winter months, his pain levels are higher than this. The plaintiff’s evidence is that he suffers flare ups of pain which cause his pain level to increase to 6 to 7 out of 10. There is no evidence that the plaintiff takes any form of medication for his pain nor has he sought any ongoing medical treatment since December 2015 with the exception of a visit to his general practitioner in January 2018. I accept that the plaintiff suffers pain in his left index finger, which the pain levels are higher than 3 out of 4 in the winter months, that on occasions, he suffers flare ups of pain which can be at 6 to 7 out of 10. In cross-examination, he said the last time he sought treatment was in December 2015. I accept that the pain is in the low to middle of the range and is managed without medication.
Treatment
48 In cross-examination, the plaintiff was asked about his hand therapy treatment which he ceased on 7 December 2015 after a year of treatment. The plaintiff agreed that he was advised to continue with finger exercises and return for review in two months. The plaintiff agreed that he cancelled all future appointments as at 7 December 2015 because he had been advised that not much more could be done and he had not had any progress for at least six months.
Sensitivity
49 The plaintiff’s evidence is that his index finger is very sensitive. If he knocks his finger, he experiences worse pain. This occurs on a daily basis, given the nature of the work he is undertaking. I accept that as a consequence, the plaintiff suffers sensitivity to his index finger which occurs on a daily basis.
Movement
50 The plaintiff’s evidence is that he has difficulty using his left hand for fine and manipulative-type activities and has difficulty using his index finger and thumb in a pincer-like movement. The plaintiff’s evidence was that he generally picks up small items with his thumb and middle finger rather than his index finger. In cross-examination, he agreed that he had become pretty good at using his thumb and middle finger.[19] I accept that as a consequence of his injury, the plaintiff has difficulty using his left hand for fine and manipulative-type activities. I accept that the consequence is in the middle of the range.
[19]Transcript (“T”) 19, Line (“L”) 23-27
51 The plaintiff’s evidence was that at times, his left index finger gets caught on pockets or clothing. He has problems using his left hand to get things out of his pockets such as his car keys. When asked why he could not put his keys in his right-hand pocket, he said he places his mobile phone in his right-hand pocket. He cannot make a flat hand to put in his pocket. I accept that this is a consequence I can take into account. I assess this at the low end of the range.
Work
52 The plaintiff’s evidence is that he has nearly finished his apprenticeship as a carpenter. He is working on a commercial site at Maribyrnong, on a high-rise building fitting the external cladding with the use of drills and grinders. He agreed that the drill and grinder are battery operated and relatively light. The plaintiff’s evidence is that he has considerable difficulty getting small items out of his nail bag, which is attached to a low belt, with his left hand. As a result, he has modified the way he uses his left hand to pick up small objects. He has problems with positioning small screws when he uses a drill. He has difficulty stabilising small nails when using a hammer. He is now slower when performing the task. However, he is not using a hammer and nails on his current job which he has been doing since December last year, and is likely to finish in another two months. He agreed that on other jobs he would use a nail gun. He would store the rack of nails in his pocket and use his right hand to get the rack of nails holding the nail gun in his left hand. He said he uses loose nails when nailing off brackets that hold timber beams and when he is nailing on cement sheet.
53 Mr Stapleton reported the plaintiff returned to work without specific restrictions, other than what he would impose upon himself. I accept that the way he performs his work is affected by his left hand which I accept is a consequence of his injury. I accept that this is in the middle of the range.
Loss of strength
54 The plaintiff’s evidence is that he has lost strength in his left hand. He tries to avoid heavy lifting with his left hand as much as he can. If he is required to undertake lifting, he modifies the way he holds an object. He told the Court that he rests the heavy sheets on the palm of his left hand or puts all the weight into his right hand.[20] He said if he is handling cladding he suffers pain in his finger, he cannot grip with his index finger and it makes it more difficult to do his job.[21] This can cause him considerable difficulty at work. The plaintiff reported to Mr Buntine that he is frequently troubled by difficulties undertaking the heavy lifting which is a necessary part of commercial carpentry work he performs.
[20]T22, L26-31
[21]T23, L4-11
55 The plaintiff reported to Mr Stapleton that lifting, pushing and pulling are difficult for him as are fine manipulative activities. Mr Stapleton reported that the plaintiff was learning to work around his injury which is his non-dominant hand.
56 I accept that this is a consequence which I can take into account.
Cutlery
57 The plaintiff’s evidence is that he has had to modify the way he uses cutlery in his left hand as he has difficulty putting pressure through his index finger. He adopts an abnormal hand grip, wrapping his hand around his fork. I accept this is a consequence I can take into account.
Sporting activities
58 The plaintiff’s evidence was that prior to his injury, he would have a kick of football and play basketball, socially with friends, every now and again. Now, he avoids these activities as he is worried about damaging his finger and suffering from worse pain. In re-examination, the plaintiff said it was not much fun watching as his mates play basketball or football. I accept that this is a consequence which I can take into account, however I assess this at the low end of the range given the activities occur every now and again.
Social
59 The plaintiff’s evidence is that he rarely works at weekends. He spends time with his girlfriend and goes 4-wheel driving. He has friends who he hangs around with who live in Romsey. He agreed he has a normal social life.
60 Mr Stapleton said the plaintiff’s social, domestic and recreational activities are all affected because in general terms, his left hand gives him an awkwardness that was not formerly the case.
Retained capacity
61 In assessing the consequences to the plaintiff, the significances of what has been lost may be informed, to an extent, by what has been retained. To the plaintiff’s credit, he has returned to his training as a carpenter. He has completed carpentry work for his girlfriend’s parents, building a deck and is about to erect a wood shed on their property, of 9 by 5 meters. He has continued work without medication or lost days. He has almost completed his apprenticeship and plans to work on commercial property in the near future. There was no suggestion that any area of work was closed to him by reason of his left hand injury. The plaintiff is able to go 4-wheel driving without difficulty. He has a normal relationship with his girlfriend and a near normal social life.
Conclusion
62 I accept the plaintiff has suffered the above-mentioned consequences as a result of the physical injury to his left hand. The plaintiff is twenty-two years of age. I accept that the consequences to a young plaintiff are greater given that the plaintiff has to live and work with the consequences, in this case, for the majority of his working life.
63 What was in issue was the consequences of the plaintiff’s physical injury and whether they meet the test of seriousness for pain and suffering, in that they could be considered “more than significant or marked”, and as being “at least very considerable when compared with other cases in the range”.
64 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[22]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[22](Supra) at paragraph [13]
65 Section 93 of the Act was intended to restrict the availability of common law damages to plaintiffs whose impairments were of “very considerable” magnitude. As indicated, section 134AB (38) (c) adopts the same wording as section 93 of Transport Accident Act 1986. Accordingly, I adopt the dicta of Callaway JA above in relation to whether the plaintiff’s impairment is “at least very considerable”.
66 In determining the application, it is has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[23]
[23]See Kelso v Tatiara Meat Company Pty Ltd (supra) at 628 and Sabo v George Weston Foods (supra) at paragraph [67]
67 Taking all the evidence into account, I am satisfied that the evidence establishes the plaintiff now has difficulty using his non-dominant hand for fine and manipulative type activities; however, he does not suggest he is unable to do so, nor does he say he is unable to use his left index finger and thumb in a pincer-like movement. Although he says he has difficulty with his left hand pocket, buttons and zips, and has to modify the way he uses cutlery, there is no suggestion that he cannot undertake those activities. The pain or sensitivity the plaintiff suffers does not prevent his work, driving and social activities. The plaintiff does not take medication nor does he receive any treatment.
68 When these consequences are balanced with what the plaintiff has retained, I am not persuaded, on the balance of probabilities and in the light of the evidence as a whole, that the consequences to the plaintiff satisfy the test. I accept that the plaintiff suffered a physical injury to his left hand, his non-dominant hand, in 2014. I accept that his left hand injury has had consequences to him which are considerable, but I am not satisfied that, when judged by a comparison with other cases in the range of possible impairments, the injury can fairly be described as being “more than significant or marked”, and as being “at least very considerable”.
69 Accordingly, I dismiss the application in respect to the physical injury.
70 I will hear the parties on costs.
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