Hutchins v CGU Workers Compensation (Vic) Limited &

[2010] VCC 1168

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT WARRNAMBOOL
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-09-05958

TIMOTHY JOHN HUTCHINS	Plaintiff
v
CGU WORKERS COMPENSATION (VIC) LIMITED	First Defendant
And
LEIGH ANTHONY CLARKE	Second Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Warrnambool
DATE OF HEARING:	11 & 12 August 2010
DATE OF JUDGMENT:	3 September 2010
CASE MAY BE CITED AS:	Hutchins v CGU Workers Compensation (Vic) Limited & Anor.
MEDIUM NEUTRAL CITATION:	[2010] VCC 1168

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 – s.134AB – application in respect of pain and suffering damages only – traumatic injury with chainsaw to the left foot – casual worker in irregular employment – credit issues – plaintiff continuing in some work-type activities – whether burden of proof discharged.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Brookes SC with	Stringer Clark
Mr N Bird
For the Defendants	Mr P Scanlon QC with	Lander & Rogers
Mr P Jens
HIS HONOUR:

General background

1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave in relation to pain and suffering damages only. Reliance was originally placed upon both sub-paragraph (a) and (b) of the definition of serious injury contained in s.134AB(37) of the Act, but the plaintiff abandoned any such reliance upon (b) at the conclusion of the evidence. The injury is one to the left foot which the plaintiff alleges he sustained on 4 September 2006 when a chainsaw which he was operating came into contact with that foot. I might say at this stage that, whilst there are two named defendants, their interests overlap entirely. Henceforth I shall refer only to “the defendant”, meaning Leigh Anthony Clarke, by whom the plaintiff was employed and in whose employment the plaintiff sustained the injury in question.

2          Mr D Brookes SC with Mr N Bird of counsel appeared on behalf of the plaintiff. Mr P Scanlon QC with Mr P Jens of counsel appeared on behalf of the defendant. The plaintiff was called to give evidence and was cross-examined. The balance of the evidence was documentary in nature, including surveillance material, and was tendered by consent, which was a most sensible and cost-efficient manner in which to conduct this application.

3          I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this and shall endeavour to apply the principles set out in them in coming to a decision in this case. I shall not list such cases here but shall refer to any cases which I consider to be specifically relevant in the course of this judgment. It was not argued but that the plaintiff bears the burden of proof.

Factual background

4          The following findings of fact are made for the purposes of this application and are not intended to be findings which are in anyway determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.

(i) The plaintiff

5          I found the plaintiff to be an unusual man, but one who was in essence a reliable witness. I gained the impression that he may be “a bit of a character” and I note that Mr Paul Keirce, orthopaedic surgeon, examining on behalf of the defendant, referred to the plaintiff as having “a friendly affect”. The plaintiff was subjected to quite demanding and detailed cross-examination, and surveillance of him was shown. However, I am of the view that he emerged from all of that with his credit intact. The activities and matters which featured large in cross-examination shall be discussed, as shall the surveillance. Basically, however, I am of the view that the plaintiff is a reliable witness in relation to the symptoms, restrictions and consequences which he describes. As a historian, and particularly in relation to the work that he has performed, he was far from precise, but I do not in any way attribute this to deliberate obfuscation or a lack of candour.

(ii) The plaintiff’s education, background and training prior to the injury

6          As the plaintiff is seeking leave in relation to pain and suffering damages only, the amount of detail required under this heading is less than might otherwise be the case. Suffice to say that the plaintiff is now aged 52 years, having been born on 6 July 1958. He is a single man. He was orphaned at the age of 8 years and then lived in an orphanage in Geelong. He had very little education, leaving school after Form 2. He has worked as a farm labourer, and in various manual jobs such as in a meatworks, as a gardener, as a labourer cutting firewood and as a casual labourer working on the construction of the Albury bypass. Whilst the details are far from clear, it would also seem that the plaintiff performed some duties as a track work rider and stable hand. Exactly when this occurred is not clear. Certainly, essentially unskilled physical work has formed the basis of his working life. He has also had his share of troubles with the law, although apparently there have been no major problems involving imprisonment since 1995. Substance abuse may be an ongoing issue. The plaintiff also has a great love of horses, and particularly racehorses, and obviously enjoys what can be described as “pottering around” stables. It would appear that, prior to his injury, he did some work in this regard, including the riding of track work. When he sustained the injury he had been working for only a matter of a few weeks with the defendant, apparently, who was a share farmer. The plaintiff’s position was that of a casual farm labourer working approximately 24 hours per week.

(iii)	The injury of May 2003
(a)	The state of the plaintiff’s health prior to the injury

7          There is no suggestion that the plaintiff had sustained any injury to, or suffered any conditions of, the left foot or leg prior to the incident of injury. The plaintiff had suffered from psychological problems over the years, and, prior to obtaining work with the defendant, had been on a disability pension. When he was approximately 16 years of age, he was involved in a motor vehicle accident in which he went through the windscreen and sustained substantial facial lacerations. He has a lengthy beard, and I note that he has given a history that this is to hide the scars which he received. It would also seem that, approximately 20 years ago, he sustained an injury to the right knee following which he underwent surgery for the removal of metal fragments, and which incapacitated him for quite a lengthy period. It is also apparent that he has had a number of colonoscopies involving removal of polyps, although whether these events took place before or after the incident of injury is not entirely clear.

8          Whilst I bear the above in mind, I am quite satisfied that there is nothing in the plaintiff’s prior medical history which has any bearing upon the symptoms, restrictions and consequences from which he now suffers as a result of the left foot injury. This is a case of a single traumatic incident without any background of pre-existing conditions and whether the consequences suffered as a result of that incident are sufficient to meet the statutory test.

(b) The injury of 4 September 2006

9          The plaintiff suffered injury on 4 September 2006 whilst operating a chainsaw and cutting branches from a tree on the defendant’s property. The chainsaw cut through the boot on the plaintiff’s left foot and, indeed, the boot in question, lacerated by the saw and with obvious teeth marks, was put in evidence. The chainsaw cut to the plaintiff’s left foot just at the rear of the steel cap of the boot. The plaintiff then rode a four wheel motorcycle back to where the defendant, fortuitously, was speaking to a couple of veterinary surgeons who provided some initial emergency assistance until an ambulance arrived. The plaintiff was taken to the Warrnambool Hospital where surgery was performed and where he was hospitalised for some nine or 10 days. Mr Philip Gan, general surgeon, was the plaintiff’s treating specialist. The plaintiff has sworn that, whilst in hospital, he was in a lot of pain and was given morphine, and I accept this.

10        According to Dr Sue Richardson, a general practitioner who subsequently treated the plaintiff and who has provided a report apparently based upon clinical records, it would appear that the injury sustained by the plaintiff was a contaminated laceration of the left foot, divided extensor hallucis tendon, divided digital nerve to the great toe and cortical breach of the first metatarsal bone. Mr John Henderson, orthopaedic surgeon, who examined the plaintiff at the request of his solicitors, described the chainsaw as slicing through the plaintiff’s boot; through the skin; through one or more extensor tendons, and one or more peripheral nerves, to involve the medial side of the cortex of the proximal part of the first metatarsal bone, resulting in a compound fracture, which was subsequently complicated by an episode of infection in the wound.

11        The plaintiff received some physiotherapy from Mr Ian Zeunert who described the plaintiff as having divided his EHL (extensor hallucis longus) tendon and destroyed digital nerves to the first and second toes. Mr Zeunert first treated the plaintiff on 10 October 2006, at which stage the plaintiff was still on crutches, and Mr Zeunert seems to have given him seven treatments overall.

12        It should be said that the plaintiff does not seem to have been particularly reliable or enthusiastic about medical treatment. Mr Gan has referred to the plaintiff not keeping follow-up appointments with Miss Harris, the podiatrist, and indeed not returning to Mr Gan for a review.

13        In any event, Mr Gan saw the plaintiff again on 19 December 2006 when the wound had healed. The plaintiff presented again to Mr Gan on 27 March 2007, having effectively stubbed his left great toe on the ground, and fearing that he may have ruptured the extensor tendon again. An ultrasound subsequently performed on 2 May 2007 indicated that the tendon was intact.

14        In the meantime, the plaintiff had consulted Dr Mooney on 18 April 2007 for an infection of the left forefoot, and was treated with Ibilex and antibiotics. On 6 September 2007, the plaintiff attended upon Dr Sue Richardson (apparently from the same practice as Dr Mooney) with a wound breakdown of the left foot and an antibiotic was again prescribed. On 13 September 2007 the plaintiff again saw Mr Gan, apparently having been referred by Dr Richardson. I gather that Mr Gan again warned the plaintiff concerning the permanent loss of sensation to the left great toe and adjacent dorsum of the foot, and stressed the importance of appropriate protective footwear and of keeping his appointments with the podiatrist.

15        On 24 October 2007 the plaintiff again saw Dr Mooney with a possible infection of the left big toe. He was seen by Dr Richardson on 28 May 2008 with a sore, cramping foot for which acupuncture was used. Dr Richardson has reported that acupuncture has been used from time to time and regularly since January 2009. Reporting on 7 June 2010, Dr Richardson stated that she had been seeing the plaintiff regularly, he attending approximately weekly for acupuncture, although there had been a gap of several months when he had none. He saw Dr Richardson again on 8 April 2010 complaining of pain in the foot and requesting further acupuncture. Dr Richardson concluded that the plaintiff has a good response to the pain in his foot, but the response is relatively short lived and requires ongoing treatment.

16        The plaintiff has been seen for medico-legal purposes by Mr Henderson on two occasions, these being at the request of the plaintiff’s solicitors. On 12 December 2007 Mr Henderson noted complaints that the plaintiff had effectively no feeling in quite a substantial area on the dorsum of the distal half of the left foot on the medial side. The plaintiff also complained of his fourth toe being a hammer toe, and that his big toe does not work properly. He also complained of instability with his left foot and altered gait. He was wearing a type of ring in his shoe to take pressure off the lump on the dorsum of the foot. Upon examination, Mr Henderson noticed a raised, lumpy, discoloured scar involving the skin over the dorsum of the left foot and around the medial side of the proximal side of the first metatarsal bone. This was quite tender, consistent with being inflamed. Mr Henderson noted the area of numbness, marking it upon colour photographs which were placed in evidence. He also recorded abnormal motion of the left big toe. His conclusion was that the plaintiff had suffered a nasty accident and described the injury as previously set out. He described the plaintiff as now suffering from “quite profound disability”, referring to the large area of sensory loss and to the problem with the big toe. Mr Henderson also mentioned that the plaintiff had a large painful tender scar which had to be protected. He described the plaintiff has having a substantial disability, which disability he also described as “quite profound”. He considered the prognosis to be very guarded and to be “not good at all” in relation to both the plaintiff’s gait and to his work capacity.

17        Mr Henderson saw the plaintiff again on 23 June 2010. On this occasion the plaintiff mentioned to Mr Henderson that he was getting some work a couple of hours a week using a motor mower and was having acupuncture once a week. He stated that he had not improved very much, and had constant pain in the joint of the left big toe. He still had problems with the discoloured lump on the dorsum of the left foot and profound numbness over the same area of the foot as previously described. He still had a problem with the left big toe, with some stiffness of the lesser toes. He stated that he walked with a rocking motion and complained of coldness in the left foot at all times. He also mentioned aching of the whole foot after being on his feet for a couple of hours and described a problem when he attempts to ride horses. He said that he could not put his full weight on the left stirrup. Upon examination, Mr Henderson noted that the area of the scar or lump was still painful, tender and inflamed, and measured the lump as being some two centimetres across and four centimetres in length. The actual scar is some four and a half centimetres in length and two to three millimetres in width. A large area of sensory loss was again noted and went around as far as, and including, the pad of the big toe. There was marked abnormal motion of the left big toe.

18        Mr Henderson’s conclusion was that the plaintiff had now developed a significant hallux rigidus injury to the left big toe resulting either directly from the injury, from the plaintiff’s abnormal gait as a result of it, or from a combination of both factors. He again commented upon the large, painful, tender lump on the dorsum of the foot, and also stated that the plaintiff “still has a very abnormal gait/disability, which has been further exacerbated, now, by the development of the hallux rigidus condition affecting MT/P joint of his left big toe”. Mr Henderson again referred to the quite profound sensory loss extending over a substantial part of the foot and also commented that the plaintiff has substantial loss of movement of the toes of the left foot now further aggravated by the condition affecting the big toe. He considered the plaintiff to be even further incapacitated than when previously seen and concluded:

“In my opinion, your client’s long-term prognosis, in relation to the quite profound disability arising out of his left foot injury/condition, is now not very good at all!”

19        He suggested further radiological investigation.

20        The defendant organised for the plaintiff to be seen on two occasions by Mr Paul Kierce, orthopaedic surgeon. Mr Kierce first saw the plaintiff on 9 November 2006. Mr Kierce noted that the plaintiff was able to walk without a limp, essentially on his heels. He observed the presence of a five centimetre Y shaped scar, with the wound still being a little swollen and with some eschar, or scab. Mr Kierce noticed a considerable area of numbness, and diminished strength in the left big toe. His conclusion was that the plaintiff had sustained a significant laceration to the dorsal aspect of his left foot sustaining a severance of the left extensor hallucis longus and of cutaneous nerves to his great and second toes on their dorsal aspect together with a compound fracture of the proximal shaft of the left first metatarsal. He also referred to the complication of infection, and suggested that a visit to a podiatrist might be worthwhile.

21        Mr Kierce again saw the plaintiff on 18 August 2008. This appears to have been principally for the purpose of an impairment assessment. Mr Kierce noted complaints of the area of numbness from the top of the plaintiff’s left foot, the fact that the left big toe drooped, and that the plaintiff had to walk on the outside of his left foot because of the numbness. The plaintiff also complained of aching in the left big toe in cold weather, and stated that he was only able to walk about 500 metres before being affected by cramps. He expressed some doubt as to whether he would be able to return to riding horses and track work. On this occasion Mr Kierce noted the scar to be in the order of seven centimetres, and also noted a blunting of sensation on the dorsal aspects of the left great toe, left second toe and left third toe. He did notice some callus on the tip of the left big toe which would indicate that the plaintiff was putting considerable weight on that toe when he walked, which did not fit comfortably with the plaintiff’s description of his gait. There were restrictions of movement of the left big toe.

22        Mr Kierce’s conclusion was as follows:

“The worker suffered a severe injury to his left great toe suffering a compound fracture of the left 1st metatarsal bone, severing the left extensor hallucis longus tendon and the branches of the superficial peroneal nerve.”

23        Mr Kierce considered that the plaintiff’s impairment had stabilised and proceeded to make a whole person impairment of six per cent pursuant to the AMA Guides.

24        On the basis of this material, I find that on 4 September 2006 the plaintiff suffered an injury to the left foot as described. I accept the description of the injury and of the resultant lump and scar as given by Mr Henderson, Mr Kierce and in the report of Dr Richardson. There is considerable similarity in these descriptions.

25        I was provided with colour photographs taken by Mr Henderson of the lump, scar and the marked areas of sensory loss, which are quite extensive. I also inspected the plaintiff’s left foot. The lump and scarred area were clearly visible and looked inflamed. The plaintiff was wearing boots to court, rather than thongs which he apparently frequently wears, and this may have aggravated his condition. I noticed some areas of callus on the sole of the foot and in the area of the big toe.

26        I accept that the plaintiff has been left with a considerable area of numbness along with a large, painful and tender lump on the dorsum of the left foot. I accept that he has quite major problems with his left big toe and lesser problems with other toes. I accept that his gait has been affected and, viewing both his manner of moving in the court room and the quite extensive surveillance, it seemed to me that he frequently walked in a fashion which was not normal. I can understand what he means when he says that he walks with a rocking motion.

27        As stated, the question of aggravation does not arise. Previous injuries suffered by him do not seem to me to be relevant, and it was not argued with any force that they were. Secondly, whilst the plaintiff has a background of some psychological difficulties, there is no suggestion that any such factors play a part in his present condition. Obviously psychiatric and psychological factors are not to be taken into account, but in my view they are either minimal or non-existent. The plaintiff may have had some difficulties with illicit substances, but again I do not see this as having any great impact upon the case.

28        I am satisfied that the requirement of permanence in relation to impairment and consequences has been established. Mr Kierce, examining on behalf of the defendant, stated that the plaintiff’s impairment had stabilised, and was prepared to make an assessment pursuant to the AMA Guides in this regard, permanence being a pre-requisite. I also note that the defendant, through its insurer, on 2 September 2008 accepted liability pursuant to s.98C of the Act, and I would refer to the observations of Ashley JA in Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171 in this regard. I would also point out that, in the opinion of Mr Henderson, the plaintiff’s prognosis is “not very good at all”. Bearing these matters in mind, I am of the view that permanence within the meaning of the Act has been established in that the plaintiff’s impairment and the consequences thereof will persist for the foreseeable future.

(iv) The plaintiff’s employment, training and other developments since the injury

29        It is apparent that the plaintiff has done bits and pieces of part-time work since the injury. He told Mr Kierce that he did some casual cleaning work, commencing four months after his injury, and working 15 hours a week for one year. As at the time of seeing Mr Kierce on 18 August 2008, he was due to commence a job at the Warrnambool Cheese & Butter Factory in the near future. In evidence, he stated that he had worked at Kraft in 2009 for approximately 10 days but could not cope (this presumably being the job mentioned to Mr Kierce). He does a limited amount of lawn mowing work, and surveillance revealed him doing this. Indeed, I note that he mentioned this to Mr Henderson, stating that he did a couple of hours mowing a week. The circumstances surrounding his lawn mowing and whether or not he gets paid for it are somewhat blurred, as he seems to paying off a debt in this regard. In any event, he does a modest amount of part-time work such as this. It would also appear that, at some stage, he did a couple of hours of work cleaning cars, and also cutting up paper at an office, but this seems to have been part of, or pursuant to, a Community Based Order. A considerable amount of fuzziness exists in relation to some of these matters, but I accept overall that the plaintiff has done some part-time cleaning work and continues with some part-time lawn mowing duties.

30        Considerable attention was paid to the fact that the plaintiff was in the habit of going to the stables of a racehorse trainer called Dean Elford. Apparently the plaintiff helped out at Mr Elford’s stables in return for a 10 per cent share in a horse (the share apparently being worth $1,500) trained by Mr Elford. The plaintiff denies that he ever received any money, but helped out at the stables for approximately two to three hours per day. He did such things as the “mucking out” of boxes, hosing and scraping horses and the like. I might say that counsel became far more excited about this issue than did I. I did not regard this as a major credit issue. I am not of the view that the activities in which the plaintiff apparently engaged cast any significant light upon his level of impairment for the purposes of pain and suffering damages. I accept that, whether he was paying off a share in a horse or simply enjoying himself (or a combination of both), the plaintiff regarded what he did as “helping out”. Further, the plaintiff had always liked horses, and it is not unknown for people like the plaintiff, otherwise largely unemployed, to visit stables frequently and “help out”. The plaintiff had a “blue” with Mr Elford some four or five months ago, and the two no longer seem to be on speaking terms.

31        I also accept that the plaintiff has done a minimal amount of riding since the accident, and has difficulties in relation to the use of stirrups. He has a horse, either of his own or a friend, in a paddock. I gather that this is a racehorse, but its preparation for racing, if any, seems to be extremely limited. Again, I do not see credit issues of any magnitude emerging from these matters.

32        Given the plaintiff’s very patchy history of employment pre-injury, I appreciate that it is well and truly arguable that his post-injury activities do not reflect any substantial alteration to his lifestyle. However, I do not otherwise regard them as either having any significant impact upon his credit or casting any great light upon the level of his impairment or his degree of pain and suffering.

Ruling

33

In my opinion the plaintiff has discharged the burden of proof in relation to pain and suffering damages.

34

I have reached this conclusion for the following reasons which are not set out in order of importance or significance.

(a)	I inspected the plaintiff’s left foot. The scarred and lumpy area looked red and inflamed. I appreciate that sub-paragraph (b) of the definition of serious injury is no longer to be considered in this case, but nevertheless the appearance of an injured part of the body can assist assessment of symptoms, restrictions and consequences. Having inspected both the colour photographs and, particularly, the plaintiff’s foot I have no doubt that the area of the scarring and the lump could indeed be painful. I appreciate that the plaintiff does not often wear boots, and was wearing boots to court, but even so the appearance of the area in question was quite unpleasant. I note that the plaintiff complains of pain and swelling at the base of the big toe which he describes as virtually useless. The big toe does seem to sit below the level of the adjoining toes. Mr Henderson has referred to the plaintiff having a painful, swollen, shiny, discoloured lump on the dorsum of his left foot and that was what I observed. I accept that the plaintiff has pain all the time, and that it is frequently at a comparatively high level. I also accept that there is quite a large area of numbness or loss of sensation.
(b)	I accept that, because of the injury, the plaintiff has developed an abnormal gait. I observed his manner of walking in the courtroom, and particularly on the quite extensive surveillance that was taken of him. As previously stated, I accept that he does, at least at times, limp and does walk with a rocking motion. Indeed, as the video material went on, and the plaintiff was viewed from different angles, and particularly in the second film, his abnormal gait seemed to me to be more apparent. I might add that, in my opinion, the surveillance did not damage the plaintiff’s credit. The fact that he does lawn mowing, as shown on the film, was no secret. The second film, taken on 4 and 5 August of this year, seemed to me, if anything, to enhance his claim. That is particularly so in relation to his abnormal gait.
(c)	Mr Henderson has described the plaintiff’s disability as being substantial and quite profound. Mr Keirce has described the plaintiff’s injury as being severe. It is to be remembered that Mr Keirce was examining on behalf of the defendant. I agree with these descriptions of the injury.
(d)	The plaintiff has sensory loss extending over quite a large portion of his foot, and this is also described by Mr Henderson as being quite profound. In addition, he has substantial loss of movement of the toes of his left foot. The importance of these disabilities is not to be underestimated.
(f)	The plaintiff has a particular problem with his left big toe. He has there developed a hallux rigidus condition. This condition is described by Mr Henderson as significant and the plaintiff has described constant pain in the “knuckle” of the left big toe. Indeed, Mr Keirce’s description of the injury to the plaintiff’s foot as being severe seems to be particularly directed towards the big toe.
(g)	The plaintiff is aged 51 years. He has already put up with substantial pain and restrictions for some four years. His prognosis, as stated by Mr Henderson, is “not very good at all”. As was discussed by the Court of Appeal in Stijepic v One Force Group Aust Pty Ltd & Victorian WorkCover Authority [2009] VSCA 181, age can be a factor to be taken into account. The plaintiff could well have two to three decades, or more, of the pain, restrictions and consequences of injury ahead of him.
(h)	As stated, the plaintiff has a great love of horses. I accept that his ability to ride horses has been severely compromised. He cannot ride properly or in the manner to which he was accustomed and I accept that he now seldom rides. This was a source of enjoyment for him.
(i)	The plaintiff finds it difficult to wear boots for any lengthy period and is compelled to wear either thongs or moccasins for a large part of the time. In addition, his left foot is unstable and, because of the numbness, he cannot tell how much pressure is upon it. I also accept that his left foot feels cold all the time. Obviously some of these matters are of lesser and greater magnitude, but they all contribute to consequences which, in my opinion, satisfy the statutory test.
(j)	Whilst the plaintiff’s pre-injury work history could comfortably be described as patchy, nevertheless there is some force in the argument of Mr Brookes that, with his injury, the plaintiff could not go back to work such as that which he was doing with the defendant. This is the clear view of Mr Henderson, and I accept it. I also accept that, as put by Mr Brookes, the plaintiff does not have a lot of resources at his disposal. He has lost the ability to participate in some employment activities and whilst, for obvious reasons, no application is made in respect of loss of earning capacity, nevertheless the ability to participate in some areas of employment has been removed from a man who had limited skills in any event. I accept that activities that require him to stand or walk for extended periods now create difficulties. In addition, the plaintiff is of the view that he could not work as a strapper in stables, a type of work which, it would seem, he had done before and which he particularly liked. It certainly seems apparent that he could not ride track work apart from having an inability to participate in some other stable duties.

35

For all of the above reasons, I am of the view that the pain and suffering consequences of the plaintiff’s impairment could be fairly described as being more than significant or marked and as being at least very considerable.

Conclusion

36        The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings in respect of pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.