Guidetti v Labour Force Solutions (General) Pty Ltd
[2013] VCC 1174
•4 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION SERIOUS INJURY | Revised (Not) Restricted Suitable for Publication |
Case No. CI-10-00106
| DANIELE GUIDETTI | Plaintiff |
| v | |
| LABOUR FORCE SOLUTIONS (GENERAL) PTY LTD | First Defendant |
| - and - | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21-22 August 2013 | |
DATE OF JUDGMENT: | 4 September 2013 | |
CASE MAY BE CITED AS: | Guidetti v Labour Force Solutions (General) Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1174 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Accident Compensation Act – S134AB(16)(b) - application for leave to bring common law proceedings for damages relating to pain and suffering consequences only – compensable injury to left ankle.
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh | Nowicki Carbone |
| For the Defendant | Mr T Ryan | Herbert Geer |
HER HONOUR:
1 Daniele Guidetti, the applicant, was employed as a warehouse manager by Labour Force Solutions (General) Pty Ltd (“Labour Force Solutions”), when on 28 September 2005 he suffered an injury to his left ankle as a result of being struck by a forklift (the incident).
2 Mr Guidetti seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings of common law against Labour Force Solutions to recover damages for pain and suffering in respect of the injury to his left ankle following the incident.
3 He seeks to satisfy the requirement for leave pursuant to s134AB(19)(a) that the injury is a serious injury by relying on paragraph (a) of the definition of “serious injury” under s134AB(37); namely, that he suffered permanent serious impairment or loss of body function of the left ankle.
4 It is not in dispute that as a consequence of the incident at work Mr Guidetti suffered a compensable injury.
5 Pursuant to an order made by Her Honour Judge Millane on 20 March 2012, the matter was referred to the Medical Panel. Relevantly, the Medical Panel was asked a series of questions concerning the nature of the medical condition of the plaintiff’s left foot and left knee respectively. This arose because of a contention by the plaintiff that he suffered consequential injury to his left knee as a result of the left ankle injury.
6 The Medical Panel confirmed its opinion that the plaintiff is suffering from mild, residual dysfunction of the left foot following surgical repair of a ruptured tibialis anterior tendon. It also considered that the plaintiff was suffering from severe, longstanding, constitutional osteoarthritis of the left knee that did not result from nor was it materially contributed to by the medical condition of the left foot.[1]
[1]Defendant’s Court Book (“DCB”) 15, 16
7 In respect to the physical condition of the left foot only, excluding any psychological or psychiatric consequences of such physical injury, the Medical Panel considered that the plaintiff did have a capacity for his pre-injury work as a warehouse manager.[2]
[2]DCB 16
8 The principal issue between the parties to this application is whether the consequences of the plaintiff’s compensable injury to his left ankle satisfy the statutory requirements for serious injury.
9 Mr Ryan, on behalf of the defendant, submitted that the consequences of the compensable left foot injury do not satisfy the statutory requirements and therefore the application should fail.
10 It was accepted that Mr Guidetti had some residual problems related to his compensable left ankle injury, however he submitted that they are not of the requisite magnitude to satisfy the narrative test for serious injury.
11 In particular, Mr Ryan referred to the multiplicity of other medical conditions that the plaintiff suffers from, including a cardiac condition, disc prolapse, morbid obesity and other physical ailments as set out in the treating doctors’ medical notes. He submitted that the plaintiff has not discharged his onus and could not disentangle what pain flows from his other ailments as compared to that related to the left ankle.
12 Mr Ryan was critical of the fact that there was no other evidence to support the plaintiff’s contention that he suffered pain and ongoing disability related to his left ankle injury. In particular, he said that there had been no relevant radiology investigations since 2008. Further, Mr Guidetti ceased seeing Dr Salimi, General Practitioner, and Mr Beischer, treating Orthopaedic Surgeon, both of whom treated the left ankle injury, in 2007 and there has been no further follow up or treatment.
13 Mr Ryan pointed out that Mr Beischer, the treating Orthopaedic Surgeon, opined that he did not believe that Mr Guidetti would have any further significant impairment of the function of the foot following discharge from his care.[3] Furthermore, all the medical material relied on from the treating doctors is somewhat dated, being over six years old.
[3]Plaintiff’s Court Book (“PCB”) 28
14 Mr Ryan emphasised that Mr Guidetti had plenty of opportunities to complain about the ongoing left ankle problems but that there is a real dearth of any contemporaneous medical material that would support that submission. For example, he referred to the clinical notes recorded by ‘Back in Motion’ that do not document any complaints of left ankle pain.
15 He referred to the clinical records of Dr Soliman, General Practitioner, who has been involved in managing Mr Guidetti’s healthcare since 1999. His clinical notes show that there have been numerous attendances over the years. However there is no entry in relation to ongoing problems or complaints relating to the plaintiff’s left ankle injury.
16 Mr Ryan submitted that the other medical reports from medico-legal specialists that have been collated on the plaintiff’s behalf do not specifically disentangle or apportion what pain is said to be attributable to the left ankle condition as opposed to his other medical conditions.
17 Insofar as the consequences of the compensable injury, Mr Ryan submitted that what is known is that the plaintiff has not lost capacity for full-time employment. He relied upon the Medical Panel’s finding that he was fit for pre-injury employment.
18 He further submitted that there is no independent evidence that supports the plaintiff’s evidence that he began limping after the surgery.
19 Mr Walsh, on behalf of the plaintiff, submitted that there has been acceptance of a compensable injury for the left ankle. The Medical Panel opinion, dated 14 May 2012, confirms that the plaintiff has ongoing dysfunction of the left foot which it characterises as being ‘mild’. He submitted that the Court also ought to have regard to the plaintiff’s evidence given during the application whereby he stated that his condition is getting worse. He highlighted that the Medical Panel opinion is now somewhat dated.
20 He submitted, having regard to the nature of the plaintiff’s complaints which the Court ought to accept, the chronicity of his complaints and the fact that Mr Guidetti requires significant over-the-counter medication to alleviate his ankle pain are all factors that should be taken into account.
21 He described Mr Guidetti as a stoic. He referred to the evidence that Mr Guidetti was informed by his treating Surgeon, Mr Beischer, on discharge from his care, that there were no other options for further treatment and that he would just have to learn to live with his condition.
22 Mr Walsh submitted that there was objective evidence of the organic problems relating to the left ankle condition recorded including calf wasting, a floppy big toe and drop foot. He relied upon the plaintiff’s description of the cause of his ongoing pain as being 70 per cent attributable to the left ankle and 30 per cent attributable to his left knee.
23 He submitted that the Court ought to accept what the plaintiff says in his affidavit as being the consequences of the compensable injury. Further he relied upon the evidence of Mr Beischer, the treating Surgeon, and that of Mr Mangos, Mr Haw, Mr Miller and Mr Jones, such that the Court ought to find that the consequences to Mr Guidetti are “serious”.
24 As has been often stated in these applications, the plaintiff’s credit is important. It has a bearing on whether a court can confidently accept the histories provided to doctors and also the details of what a plaintiff says are the ongoing consequences as being accurate.
25 Some video surveillance film, taken from surveillance over a period of time, was shown during the course of the application. The first video was taken on 16 November 2009 and ran for a duration of approximately four minutes. The second video was taken on 17 March 2010 and ran for a few seconds duration. The third video was taken on 28 February 2011 and ran for a few seconds duration. The fourth video was taken on 3 September 2011 and ran for two minutes and 44 seconds duration. The fifth video was taken on 3 September 2011 and ran for 47 minutes duration. The sixth video was taken on 4 November 2011 and ran for three minutes and 56 seconds duration. The seventh video was taken on 12 and 13 July 2013 and ran for duration unknown.
26 The defendant, through Mr Ryan, confirmed that a total of 75 hours of surveillance investigations were undertaken, with an estimate of the total time of video material obtained being two hours.
27 None of the video material discredited the plaintiff. I find that the video surveillance shows him walking with a slow loping gait, limping favouring the right leg. He is observed walking to a supermarket, pushing a shopping trolley and driving his car.
28 I am satisfied that Mr Guidetti was a reliable and credible witness.
29 The uncontested evidence is that Mr Guidetti is aged 60. He migrated to Australia from his country of birth, Italy, in 1959. He completed Year 12 at school and undertook a tertiary course for approximately one year. He has a good working history commencing with the Department of Supply in 1973. He then had another position with Ausdoc. He began working with Labour Force Solutions as an assistant warehouse logistics manager in 2003. His employment was terminated with the defendant on 13 March 2009. In February 2011 he commenced employment with National Census until October 2011.
30 The mechanism of his injury was that on or about 28 September 2005, whilst he was walking through the rear of the warehouse, a forklift driver reversed his forklift and the bottom lip of the forklift struck him on the left ankle.[4] The force of the accident caused him to stagger but not to fall. He noted acute pain in the left ankle and in the bottom part of his leg. He reported the injury to the warehouse manager at the time, Guy Cheatley.
[4]PCB 2, the plaintiff’s affidavit sworn 11 September 2009.
31 Mr Guidetti initially attempted to self-manage the left ankle condition and was optimistic that it would improve. Eventually in January 2006 he was referred to Dr Shaun Salimi, General Practitioner, who worked at OccWest, an Industrial Medical Clinic in Sunshine that had an association with the defendant’s company. Dr Salimi arranged a CT scan of the left ankle and treated him conservatively, with physiotherapy, medication and referral to a specialist.
32 On 18 April 2006 he referred Mr Guidetti to Mr Andrew Beischer, Orthopaedic Surgeon, at the Victorian Orthopaedic Foot and Ankle Clinic. Mr Beischer confirmed when he reviewed Mr Guidetti that clinically and radiographically it appeared that he sustained a rupture of his tibialis anterior tendon which left him with weakness of the ankle dorsiflexion and an inability to walk on his heel when he first examined him. An MRI and vascular ultrasound confirmed rupture of the tibialis anterior tendon, and therefore he recommended surgery.
33 Surgery was performed on 30 April 2007. Following surgery, Mr Guidetti was placed in a short leg walking cast and eight weeks post-tibialis anterior tendon reconstruction he was placed in a CAM walker and commenced physiotherapy. On 30 October 2007 Mr Beischer discharged him from his care.[5]
[5]DCB 15-17
34 In the letter written to the plaintiff’s solicitors, Mr Beischer states that Mr Guidetti appeared to do well following the surgery and it was not anticipated that he would require any further surgery for the problem in the future.[6]
[6]PCB 61
35 Mr Beischer stated when he last saw the plaintiff in October 2007 he seemed to be functioning well. He said that he usually expects the patients, following reconstruction of the tibialis anterior tendon, to be able to walk well but they will often find running activities difficult and may develop some functional foot drop if they become tired, due to persistent weakness of the tibialis anterior tendon function.[7] Mr Beischer also informed the plaintiff pre-operatively that there was a risk of the operation causing him to have a floppy big toe.
[7]PCB 61
36 Mr Beischer confirmed that as a result of his surgery Mr Guidetti had a weakness of great toe dorsiflexion as the extensor hallucis longus tendon has been transferred to reconstruct his chronic rupture of the tibialis anterior tendon. Apart from the lack of great toe extension, and possibly fatiguing of the tibialis anterior tendon at the end of the day, he did not believe that he would have any significant further impairment of the function of his foot or ankle.[8]
[8]PCB 62
37 Mr Guidetti’s evidence is that he has both a floppy big toe and also has problems with foot drop.
38 Mr Guidetti has been seen by a number of medico-legal assessors.
39 All medico-legal specialists confirm that Mr Guidetti suffered an injury to the left ankle in the form of a rupture of the tibialis anterior tendon and that he has had this repaired by way of surgery.
40 Mr Peter Mangos, General Surgeon, saw him on 12 April 2010 and 23 May 2011. He notes the tibialis anterior tendon is the main muscle dorsiflexing the ankle and, as it was revealed clinically, when divided Mr Guidetti had a foot drop. He considered that Mr Guidetti does have reasonable ankle movements but these are certainly reduced and lack strength. Mr Guidetti’s major problem is weakness in the left leg and difficulty mobilising, especially on uneven surfaces and climbing stairs and ladders. He finds it very hard to hurry or to run.
41 Mr Mangos considered the plaintiff’s condition had stabilised and opined that he has a sizable disability/impairment with regards to the left leg. He considers that the plaintiff has had appropriate treatment and management via surgery. The outcome has been reasonable, however there has not been full recovery. He says special investigations, including CT of the ankle and ultrasound, show a ruptured tendon and there is evidence that he has early osteoarthritis in the region of the tarsal joints and he felt that would be aggravated by the injury.
42 Mr Mangos says that there is permanent impairment of the left ankle.[9]
[9]PCB 66
43 When last reviewed, on 23 May 2011, Mr Mangos considered that Mr Guidetti had lost extension power and extensor hallucis. He continues to have weakened dorsiflexion and plantar flexion of the left ankle and has difficulties with mobilisation. As a result of the left ankle injury, Mr Guidetti has suffered a good deal of chronic pain, loss of power of the ankle in dorsiflexion and plantar flexion and loss of extension of big toe. Mr Mangos noted that he moved with a marked limp, particularly on the left side.[10]
[10]PCB 66b
44 Mr Chris Haw, Orthopaedic Surgeon, reviewed Mr Guidetti on 4 March 2011. His examination findings were consistent with those of Mr Mangos. He considers that Mr Guidetti has permanent impairment due to the loss of dorsiflexion as well as some permanent weakness and power, and an inactive dorsiflexion compared to normal power on the right of dorsiflexion. He considers that the problem has left him with diminished capacity to work in his garden, which is one of Mr Guidetti’s interests. He has limited ability to walk distances which has significantly affected his social life inasmuch as he can no longer dance as he formerly did with his partner. He confirmed in a letter dated 3 February 2012 to Nowicki Carbone, the plaintiff’s lawyers, that at the time of his assessment Mr Guidetti’s major problem related to his ankle rather than his left knee.[11]
[11]PCB 71(ii)
45 Mr Russell Miller, Orthopaedic Surgeon, saw the plaintiff on 30 June 2011. His assessment was that Mr Guidetti’s condition was improved by surgery but that he did have significant ongoing symptoms, and he considered the prognosis for the left foot to be only fair. He said the plaintiff will require ongoing conservative treatment and that will continue indefinitely.[12]
[12]PCB 71e
46 Dr H. Sutcliffe, Occupational Physician, reviewed Mr Guidetti on 18 August 2011. He confirmed following surgical intervention for tendon repair that Mr Guidetti had loss of range and control of movement of the left first toe, and also had developed some numbness in the plantar aspect of the distal foot and toes. His permanent function of the left ankle has suffered. The condition is stabilised. He considers that he has developed osteophytic impingement in the left ankle as a result of the compensable injury. He has limited capacity for standing, sitting, walking on rough ground and cannot climb a ladder. Social activity is restricted. He has permanent loss of function of the left ankle, left foot, and left first toe. [13]
[13]PCB 71n
47 Mr Ian Jones, Orthopaedic Surgeon, reviewed Mr Guidetti on 10 June 2010 and 28 February 2011. He did so at the request of the defendant’s solicitors. At the time of his examinations he noted Mr Guidetti walked with a slight left-sided limp. He examined the left foot and confirmed the range of left ankle movements were slightly restricted compared with the right ankle and a minor restriction of flexion was noted. The subtalar joint in the left foot was also slightly stiff compared to the right side. The left ankle was slightly weak on active extension being estimated as power four out of five. The left great toe has a power of extension three out of five. He says as a result of the compensable injury to the left foot Mr Guidetti has been left with a slight restriction of left ankle flexion and extension and some weakness of power of extension in the ankle and the left great toe. He noted incidentally Mr Guidetti suffers a moderate degree of osteoarthritis in the left knee causing him to limp. The prognosis for the left foot is one of persisting symptoms long term.[14]
[14]DCB 64, 68
48 When Mr Jones reviewed the plaintiff on 10 June 2011, he noted Mr Guidetti’s description of weakness in the left foot with pain in the foot and ankle region being a problem. He reported difficulty on uneven ground and experienced tiredness symptoms in the foot and ankle region after 10 to 15 minutes. He also noted weakness in the left great toe which takes the form of occasional dropping and catching unless he takes care to clear his forefoot from the ground when walking. He reported that he had recently fallen in the shopping centre.[15] He is unable to run, but can sit and stand for unrestricted periods and is able to drive a car. He confirmed that he was taking Panadol four times a day.
[15]DCB 66
49 Mr Jones confirmed his previously expressed opinion and said the prognosis for the plaintiff’s left foot and ankle in the short and long term is likely to be one of persisting symptoms at the current level and no other medical specialist assessment is indicated. No other treatment, such as physiotherapy, is likely to improve his ankle or left great toe weakness.[16]
[16]DCB 68
50 In regards to the left ankle condition, because of the restriction of ankle movements, as well as weakness of extension of the plaintiff’s ankle and left great toe, Mr Jones states he is limited to employment on flat and level surfaces where no extremes of ankle movement are required, including squatting, stair or ladder climbing. He considered that Mr Guidetti’s arthritis in the left knee was a significant contributing factor to his ability to walk and he did not think that his peripheral diabetic neuropathy was a factor in his ankle complaints.[17]
Conclusions
[17]DCB 68
51 From a consideration of all the medical material and the Plaintiff’s evidence which I accept, I am satisfied that, as a consequence of the incident at work on 28 September 2005, Mr Guidetti suffered a compensable injury. He suffered a rupture of his tibialis anterior tendon in the left foot that has been surgically repaired.
52 I find that the injury has impaired the function of Mr Gaiety’s left foot and that it has caused lasting consequences.
53 I accept Mr Guidetti’s description of the consequences of the injury as set out in his various affidavits. He suffers from chronic pain for which he takes Panadol Osteo daily. He has ongoing discomfort in the left ankle. He suffers stiffness and restriction of movement in his left ankle and foot. This impacts on physical activities such as walking and standing for long periods, both of which tend to exacerbate the pain in his left ankle.
54 The plaintiff’s difficulties with walking were amply demonstrated in the video surveillance material.
55 I accept he has difficulty moving his left foot up and down and is unable to straighten his left foot. His left big toe is limp and numb. He is precluded from enjoying his main hobby of gardening. He can no longer tolerate walking upstairs without difficulty.
56 I accept that as a consequence of pain in his left ankle he has trouble with sleeping. He cannot run and prolonged walking exacerbates his pain. Consequently, his ability to engage in any sort of exercise or physical activity has been severely diminished. This is a serious consequence given the need for him to maintain mobility and reduction of weight to alleviate other symptoms related to his cardiac condition.
57 Social activities have been affected. He no longer dances and no longer goes on lengthy walks.
58 Over time Mr Guidetti has noticed increasing difficulty with the left foot drop. He finds when walking his left foot does not land squarely on the ground and his gait has become altered. He finds it difficult to walk on uneven surfaces. He finds it difficult to walk up and down stairs. His difficulties climbing ladders has impacted on his ability to do handyman work around the home.
59 In the latest affidavit, sworn 13 August 2013, there is evidence of the chronicity of the plaintiff’s problems. Mr Guidetti says he has continued to experience ongoing significant problems with the left ankle and suffers pain every day.[18]
[18]PCB 20d
60 He states his left foot continues to be a major problem, causing him constant pain which varies in severity from day-to-day. It is especially painful whenever he is required to do a lot of walking. He also has difficulty standing for any length of time or walking on uneven ground. His left foot aches when he is required to walk upstairs and he tries to avoid these activities.
61 Mr Guidetti’s son, Christian Guidetti, swore an affidavit on 29 March 2010, attesting to the difficulties his father has doing household tasks due to his impaired mobility and also the reduction in the time he spends gardening, and the difficulty he has undertaking any tasks associated with the garden. He confirms his father has reduced his social activities.
62 Mr Guidetti’s wife, Angela Guidetti, confirms that the injury has impacted on his ability to do the gardening and his ability to undertake activities around the home, as well as causing difficulties with socialising and affecting his sleep, as he wakes up during the night because of the pain in the ankle.
63 Mr Guidetti’s friend, Tomaso Varano, confirms that since the incident Mr Guidetti now struggles with walking, even short distances, because it tends to aggravate his pain, and he moves very slowly.
64 I accept the uncontested evidence from the plaintiff’s wife, his son and his friend about the disabling effects of the plaintiff’s ankle condition.
65 The picture painted is one of a sixty year old man who has a permanent injury to his left ankle that has had serious consequences. The chronic nature of the ankle pain is accepted. It is likely that Mr Guidetti will continue to have to take pain relief medication into the future for his left ankle condition.
66 Much criticism was made of the plaintiff for his failure to attend upon his General Practitioner, Dr Soliman, to report to him about his left ankle condition or to complain to any other medical practitioner despite opportunities.
67 I accept Mr Guidetti’s explanation that once Mr Beischer gave him the clearance and told him that there was nothing further he could do medically that he heeded that message. He has learnt to manage his condition and no other medical intervention has been suggested.
68 Therefore the fact that he has not consistently complained to his General Practitioner or any other medical practitioner about ankle symptoms does not impact upon my assessment of his credibility or reliability, nor does it affect my acceptance of his evidence about the nature and level of his ankle pain.
69 The evidence was that he tolerated his situation in relation to the left ankle for many months prior to seeking active management and one can draw the conclusion from that that he is a rather stoical individual. He was prepared to endure his situation in an attempt to self manage his condition in the hope it would repair.
70 The words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2)[19] are apt. That is:
“The injury suffered by the stoical plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case the objective evidence of the disabling effect may be of less significance than usual.”
[19][2008] VSCA 260
71 When one considers what the plaintiff could do prior to the left ankle injury compared to what he can now do, it is obvious that the compensable injury has interfered with his enjoyment of life.
72 It is a fact that he was able to resume his pre-injury employment and also the Medical Panel considered that he was fit for his pre-injury duties. However, that is not to say that he is still not affected by his injury or that his injury precludes him from performing a number of tasks, such as going up and down stairs or ladders, or walking over uneven ground, associated with his employment.
73 All of those matters must be taken in to account in assessing his loss of enjoyment of life, in a broad sense, in order to understand the effect of his impairment upon the numerous aspects of his daily life and activities.
74 I am satisfied that Mr Guidetti suffers consequences following the repair surgery. He has developed additional problems such as loss of dorsiflexion, a floppy big toe and drop foot following the surgery. His condition has stabilised and is unlikely to improve in the future. There is no other medical management that is indicated at the present time. He has to endure chronic ongoing pain and even with the use of medication he suffers pain daily.
75 I am satisfied that, capacity for employment aside, his injury produces chronic pain that interferes with his ordinary activities of life, including sleeping, mobility, performance of household and family duties, recreational activities, social activities and enjoyment of life.
76 Mr Ryan submitted that there was a disentangling exercise in relation to the consequences suffered by the plaintiff given all his other medical conditions.
77 I am satisfied from the bulk of the medical evidence that there is a clear designation of the symptoms the plaintiff suffers attributable to his left ankle condition and the consequences. I accept the plaintiff’s evidence that 70 per cent of his pain is attributable to the left ankle and 30 per cent is attributable to his left knee condition.
78 I am satisfied that the plaintiff has sufficiently disentangled the consequences of his left knee condition.
79 This is a case where there is a clear pattern that can be discerned from the evidence of the consequences of the injury. This is so notwithstanding Mr Guidetti has a number of other major health concerns.
80 Taking into account Mr Guidetti’s experience of pain resulting from his left ankle injury, and the debilitating effect of that pain in the circumstances as I have described, it is my opinion that the pain and suffering consequences to which the compensable injury to the left ankle materially contributes are very considerable.
81 Overall, I accept that the pain and suffering consequences suffered by Mr Guidetti may be described as being “significant” and “marked and very considerable” as is required by s134AB(38)(c).
82 I consider that the injury to the left ankle is a serious injury and that Mr Guidetti has met the threshold test for leave to bring proceedings for damages under s134AB(19)(a). I therefore grant leave.
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