Johnson v Transport Accident Commission
[2021] VCC 1396
•1 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-05593
| BRADLEY PAUL JOHNSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 September 2021 (via Zoom) | |
DATE OF JUDGMENT: | 1 October 2021 | |
CASE MAY BE CITED AS: | Johnson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1396 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the knee – injury to the elbow – whether the plaintiff continues to have symptoms which are “very considerable”. Lack of treatment.
Legislation Cited: Transport Accident Act 1986
Cases Cited:Johns v Johns v Oaktech Pty Ltd [2020] VSCA 10; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Carbone v Toyota Motor Corporation [2017] VSCA 249; Thapa v Transport Accident Commission [2021] VSCA 239; Hooley v Transport Accident Commission [2019] VSCA 263
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis with Mr C Cantor | Shine Lawyers |
| For the Defendant | Mr C Blanden QC with Ms J Clark | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1This is a serious injury application brought pursuant to s93 of the Transport Accident Act 1986 (“the Act”). The principles in respect to such applications are well known and are not in dispute in this proceeding. The dispute in this proceeding is simply whether the plaintiff has ongoing impairment consequences from a compensable injury that are “serious”, or as Senior Counsel for the defendant said, it is a “range” case.[1] By that, I take it to mean the issue is whether the plaintiff can identify impairment consequences from compensable injury, either in respect to pain and suffering and/or pecuniary loss consequences, or in combination, which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, can fairly be described as “more than significant or marked” and as being at least “very considerable”.
[1]Transcript (“T”) 3, Lines (“L”) 29
2In assessing the seriousness of the claimed impairment consequences, I must consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[2] I take into account the broad range of impairments and impairment consequences, not just those that come before the Court.
[2]TTB SMS Pty Ltd v Reading [2020] VSCA 203 at paragraph [30]
3The plaintiff relies separately upon injury to the right knee and injury to the right elbow as the “serious” injury. He relies upon the physical consequences of such injury. Via his counsel, Mr Valiotis and Mr Cantor, he submitted that the application was made effectively as a pain and suffering case with some prospective pecuniary consequences, not having suffered any economic loss to date.[3]
[3]T2, L18ꟷ24
4Where, as in this proceeding, the plaintiff relies upon injuries to separate body functions to the right knee and right elbow, it is not permissible to aggregate those impairments for the purposes of determining whether an injury is a “serious injury”.[4]
[4] Carbone v Toyota Motor Corporation [2017] VSCA 249 [58]
5The application otherwise proceeded in the usual way. The plaintiff was cross-examined as to the content of affidavits and the parties otherwise tendered relevant medical reports and materials. I have taken into account the transcript of the plaintiff’s oral evidence and all of the tendered evidence, but I shall only refer to it to the extent necessary in these reasons.
6The resolution of this application involves answering the question whether a man who has effectively had no treatment, who continues to work full time, up to 60 hours per week, in his own business, with some intermittent pain, interference for some daily activities and some aspects of his work, can demonstrate that he has suffered a “serious injury” in circumstances where the injuries claimed by him to be “serious” are not particularly remarkable. The determination as to whether a “serious injury” has been suffered involves questions of degree and value judgment.[5] For the reasons that follow, my judgment is that the answer to the question is that the plaintiff has not demonstrated that he has suffered a “serious injury”.
[5] Thapa v Transport Accident Commission [2021] VSCA 239
A short chronology
7The plaintiff, Bradley Johnson, is now fifty-five years of age. He completed Year 10 at school and then completed an apprenticeship as a butcher. His working life has been in manual-type employment. From approximately the year 2000, he has owned and operated a commercial street-cleaning business. He remains engaged in that business. Broadly, the plaintiff’s medical history is unremarkable. Since approximately June 2015, he has been prescribed and used Zoloft to manage a psychological condition that, at least in part, was caused and perpetrated by psychosocial factors. In 2020, he suffered a heart attack, for which he continues to take medication. Apart from long term smoking of tobacco and marijuana, he was otherwise fit and well and able to engage in hard work in his own business.
8The plaintiff was riding his bicycle in Lilydale at approximately 5.00pm on 23 September 2016, when he was hit by a four-wheel drive vehicle, causing him to be thrown from his bike and suffer injury (“the accident”). Police and ambulance attended. He was taken to the Maroondah Hospital. On examination he was alert and orientated, but lacerations were noted over his right elbow and right thigh, as well as a deep wound over the right calf. At hospital, his knee was described as “tender”. He was admitted to the trauma unit and underwent debridement and closure of the right calf and elbow wounds. A formal CT report of the right knee was reported as showing a nondisplaced fracture of the medial femoral condyle. The plaintiff discharged himself from hospital on 24 September 2016 and did not attend a scheduled review appointment.[6]
[6]Report of Maroondah Hospital, dated 4 November 2019 at Plaintiff’s Court Book (“PCB”) PCB 64
9After discharge from hospital, the plaintiff came under the care of his general practitioner, Dr Chris Fildes, although there were only a limited number of attendances for any accident-related injuries. But, he continued to attend Dr Fildes from time to time for unrelated conditions. His last such attendance was on 21 August 2019, and recorded by Dr Fildes as to air “some remaining psychological issues pertaining to his accident, and the lack of follow-up by Police”.[7] By that stage Dr Fildes’ opinion was that the plaintiff’s physical injuries had resolved and did not require any further treatment.
[7]Report of Dr Fildes dated 30 August 2019 at PCB 63
10There is no dispute that the plaintiff suffered an injury to the right knee by way of a nondisplaced fracture of the medial femoral condyle. There is also no dispute that the plaintiff suffered injury to the right elbow, being a lateral epicondylitis (“tennis elbow”). The dispute is simply whether the plaintiff has persisting impairment consequences from one or the other of those injuries that are “serious”.
The evidence of the plaintiff
11The defendant, via its counsel, Mr Blanden QC and Ms Clark, challenged the plaintiff in cross-examination as to the extent of his ongoing symptoms and consequences from the claimed injuries. The defendant submitted that this proceeding was not really a “credit case”, but there were some background factors in the plaintiff’s life that might otherwise go to his reliability or motivation. Having seen the plaintiff in the witness box, he struck me as a direct, straightforward and reliable man. He made appropriate concessions. I accept his affidavit evidence as to the accident and the impairment consequences to him in the broad sense.
12The plaintiff swore two affidavits in support of this proceeding. In his first affidavit, he described suffering ongoing intermittent right elbow pain, as well as ongoing right knee pain most of the time. In the first affidavit, he said:
“I continue to suffer intermittent right elbow pain. The presence and level of this pain depends generally on forceful or repeated use of the right upper limb. The elbow is in almost constant pain if it is exposed to the cold. The pain can be worse some times more than others. The elbow sometimes ‘locks’, especially if I sleep on it. The elbow pain affects my ability to push, pull, lift repeatedly or lift heavy objects, make reaching movements, or expose the elbow to cold conditions. I have lost some range of movement and strength in my dominant upper limb, as a result of the accident. Sometimes when the elbow pain is at its worse and I lift an object such as a two litres bottle of milk, I have to use my left hand to support the object. I continue to suffer right knee pain. This pain is present most of the time. Its presence and severity is generally dependent on weight bearing activities that includes prolonged standing or walking, and going up or, particularly down, stairs. It also becomes painful in cold weather. The right knee gives way. The knee injury affects my ability to run, jump, walk for long periods or over rough or uneven ground, squat, and kneel.”[8]
[8]Affidavit of Plaintiff, sworn 21 August 2020, PCB 10 at paragraph [10]
13The plaintiff then described his work and expanded on his impairment consequences: He said:
“I led a full and active lifestyle at the time of the accident. I worked around sixty hours a week in the business. The business cleans carparks, schools, factories, streets, and construction sites. I operated sweeping and scrubbing machines, drove the ‘business’ two 3-tonne trucks, and used mops and brooms. Prior to the accident, one particular task involved using my left hand to steer a ride-on sweeper while, at the same time, holding a blower weighing around ten kilograms, in my right hand, in order to blow debris around the perimeter of a site into the path of the sweeper. I held the blower in the right hand for prolonged periods while doing this task. I would also kick the debris lying along the perimeter with one of my feet to get it in the path of the sweeper. This system of work greatly cut down the time I had to spend cleaning up sites. I often worked in cold conditions, especially during winter. I maintained the ‘business’ machinery, including the hydraulic pumps and change the filters. Working ‘hands-on’ required the full and free use of my right elbow/arm and right knee. I was drawing $1,032 a week from the business of which $700 went towards my own expenses.
I enjoyed interests and activities away from work at the time of the accident. I was a single Dad to William (born 1997) and Lewis (born 2000) and enjoyed sharing activities with them. I enjoyed playing cricket, cycling, and running. I was proud of my high level of fitness. I also have a daughter Charlie (born 2002) who was living with her mother at the time of the accident. I was in an ‘on-off’ relationship with ‘Gillian’.
Each of the elbow and knee injuries continues to impact heavily on my life. I was off work for a short time. I had to get back to running the business as quickly as possible otherwise I would have had to shut it down. However, I have had to change the way I work because of the state of the right elbow and knee. For example, I can no longer hold the blower while operating the ride-on sweeper. This slows me down considerably, as does my inability to kick debris into the path of the sweeper with my right leg. The condition of the knee makes it difficult to be on my feet for long periods or to walk over uneven or rough ground. Each injury makes it painful to work in cold conditions.
Each of the elbow and knee injuries continues to affect most of my other interests and activities. For example, each affected my ability to share activities with William and Lewis. They now live away from me. Each injury has affected my ability to play cricket. Although I only played socially at the time of the accident, I did play competitive cricket before the accident. Each injury restricts my ability to engage in cycling, for example if I ride over a bump in the road it jars and hurts the elbow. The state of the knee limits my ability to cycle over difficult terrain, especially for long periods. I am a lot less physically active because of each injury. I have lost a lot of my former fitness. I have lost interest since the accident, in many of my usual activities, for example in socialising. This is partly because each injury limits my ability to share physical activities with others.”[9]
[9]Affidavit of Plaintiff, sworn 21 August 2020, PCB 10ꟷ11 at paragraphs [12]ꟷ[15]
14The first affidavit describes combined impairment consequences from the right elbow and the right knee. Of course, in assessing whether the injuries are serious, the impairment consequences cannot be combined. The plaintiff must identify the impairment and consequences separately from each injury that are said to be “serious”.
15In his second affidavit, the plaintiff said that since his first affidavit, “very little has changed”.[10] He otherwise repeated restrictions for physical activities such as bike riding, playing cricket, playing sport with his children and physical activity. He said that he had been offered a steroid injection for his right elbow which he had refused because he understood it would only give temporary pain relief and he “didn’t see the point”.[11]
[10]Further Affidavit of Plaintiff, sworn 25 August 2021, PCB 15 at paragraph [8]
[11]Further Affidavit of Plaintiff, sworn 25 August 2021, PCB 15 at paragraph [9]
16In his second affidavit, the plaintiff described the impact on his work as follows:
“I have tried not to let the injuries impact upon my work because it means so much to me. Everything takes longer to complete. My eldest son William is a qualified diesel mechanic and he gave up working to come and work full time with me because I can trust him to do the work properly or as I instruct him to do it. It’s a good business and I am hoping that with his experience he can grow it and take it over if he wants to.
William does the majority of the physical work and he also undertakes the repairs and servicing of the vehicles. William replaced two employees I had, one was with me for 17 years and another who was casual for 5 years. He’s doing the hard yards that I used to do because jumping in and out of the truck or driving the sweeper whilst using a hand blower is really difficult and painful with a sore right elbow. He does the harder jobs that require the ability to clear the gutters or the pathways manually so the sweeper can pick things up including smaller branches or twigs or debris.”[12]
[12]Further Affidavit of Plaintiff, sworn 25 August 2021, PCB 16ꟷ17 at paragraphs [13]ꟷ[14]
17In his second affidavit, the plaintiff also noted that he was then caring for his brother who had suffered a stroke.
18The plaintiff tendered and relied on the evidence contained in an affidavit of his son, William Johnson, sworn 9 September 2021.[13] That affidavit goes into detail as to the nature of the sweeping business. He describes the restrictions he had seen that his father now has for heavier aspects of the sweeping business and how his father’s injuries now limit him for the heavier work in the business. The son’s affidavit describes impairment consequences from both the right knee and the right elbow, but broadly describes the right elbow as the major problem for heavier work.
[13]PCB 19
19The plaintiff was cross-examined as to his attendance on general practitioners and the lack of treatment for either his right knee or right elbow. He accepted that he continued to work up to sixty hours a week in his own business.[14] More recently he had also been caring for his brother, although his brother had now moved out to live independently. He accepted he had returned to try some form of exercise since the heart attack, including riding his bike.[15] It was suggested to him that he had lacked motivation, likely due to smoking marijuana, and he agreed that was right, and “that’s probably why I stopped it”. [16] He accepted he had five physiotherapy visits following the accident in late 2016 and that since then there had not been any further active treatment from anyone regarding the injuries. In respect to having treatment for the injuries he said “Not really. The heart attack sort of overrules them”.[17]
[14]T20, L23
[15]T22, L12
[16]T22, L20ꟷ21
[17]T23, L4-5
20In re-examination, he was asked about his motivation for exercise and said “my exercise is work”.[18] He was then asked whether his work was impacted either by his elbow or knee and he said that it was. He described increased pain from doing his work and being lucky that his son was now involved in the business. He described himself as a “semi-retire”.[19] He was asked about jobs that he can no longer do and why he could not do them and said: “Because you’ve got to lie down on the ground on your back and lift heavy things up, and - and - and there’s no way”.[20]
[18]T23, L31
[19]T24, L17
[20]T24, L28ꟷ30
21In re-examination, the plaintiff said he had not recovered from either his right elbow injury or his right knee injury. He said he was never pain free.
The medical evidence
22The relevant medical evidence in this proceeding is limited.
23Mr Garry Grossbard, orthopaedic surgeon, examined the plaintiff for medico-legal purposes and provided a report dated 10 February 2020.[21] In that report, Mr Grossbard confirmed there had been an undisplaced fracture of the femoral condyle of the right knee. He found a full range of motion and no knee joint effusion, but considerable patellofemoral crepitus and irritability of the patellofemoral joint.[22] He also described a soft-tissue injury to the right arm and the plaintiff exhibiting signs of epicondylitis with a degree of weakness of the arm.[23]
[21]PCB 51
[22]PCB 54
[23]PCB 54
24Mr Grossbard then re-examined the plaintiff and provided a report dated 17 June 2021.[24] Mr Grossbard took a history of the plaintiff continuing to run his cleaning business, but with his son having joined him and doing most of the heavy activity. He noted the plaintiff was able to drive machines, but had difficulty starting pressure washers and blowers. He confirmed he was still working up to sixty hours per week.[25]
[24]PCB 56
[25]PCB 56
25In the second report, Mr Grossbard describes an examination of the plaintiff’s right arm. There was a full range of elbow motion and no major muscle wasting, but there was tenderness to palpation of the elbow. Grip strength was approximately 50 per cent of the non-dominant left side. Mr Grossbard also examined the plaintiff’s right knee. There was no knee joint effusion. Range of motion was full. The knee felt stable but, again, Mr Grossbard found signs of patellofemoral and anteromedial tenderness with mild patellofemoral crepitus.
26Mr Grossbard opined as follows:
“Mr. Johnson has suffered multiple injuries resulting from the motor vehicle incident of 23rd September 2016. He has ongoing issues in relation to his right elbow and right knee. The right elbow injury has been of a soft tissue nature. The major ongoing concern other than the pain has been weakness in the right upper limb, which does not appear to have altered significantly over several years. I would therefore suggest this man will continue to have right upper limb weakness and have difficulty with activities including taking his full bodyweight through the right arm such as is required whilst doing push-ups, and sudden pulling activity as may be required to start machinery.
This man has also suffered a significant injury to the right knee, where he has fractured the femoral condyle. He has ongoing knee pain particularly in the colder weather and continues to have symptoms suggestive of patellofemoral pain with associated patellofemoral tenderness and crepitus. I do not believe the calf scarring causes any specific disability.
The situation is complicated by this man’s other health issues including his recent myocardial infarction. He also has ongoing psycho-social issues about which I am not qualified to comment, but have been alluded to [in] the report of Dr. Albert Kaplan of 3rd February 2020. These have become a little more complex since then.
I believe this man’s situation is stable. I doubt there will be any significant improvement in his level of pain and usability of his right arm in particular.
I believe Mr. Johnson does have a work capacity as demonstrated, but this is restricted, particularly for heavier activity. I think obtaining assistance for heavier work (from his son) is appropriate and may need to be permanent if he is to maintain his business.
This man’s ability to undertake heavier work, particularly using his right upper limb, is significantly restricted. Whilst he is able to resume cycling, he has chosen to confine this to bike paths and has limited the amount of cycling he is undertaking. This is also partly influenced by his long hours of work.
Whilst Mr. Johnson is able to return to his previous work, it is restricted, and he has made appropriate adjustments in order to cope.”[26]
[26]PCB 57ꟷ59
27I have already mentioned the report from Dr Fildes, dated 30 August 2019, in which Dr Fildes expressed the opinion that the plaintiff had recovered from his physical injuries. In fact, the plaintiff transferred his care to the Knox Medical Centre, where he has been attending the general practitioner Dr Win Htut Naing. In a report dated 30 April 2021,[27] Dr Naing notes the plaintiff had attended roughly monthly since the first attendance on 4 June 2020. The first mention of the accident was at an attendance on 15 January 2021. Dr Naing describes the plaintiff’s right elbow as being “quite painful” and a finding of weakness of right sided grip strength. He noted some tenderness of the lateral epicondyle area and a diagnosis of a right tennis elbow injury. By way of treatment, an elbow band and exercise was recommended, as well as physiotherapy, and then later on the option of a corticosteroid injection. Dr Naing says that the plaintiff declined the injection due to the invasive nature of it.
[27]PCB 66
28Dr Naing says that the plaintiff’s right elbow injury is “likely to continue over time with risk of further deterioration” and that there may be a need for analgesia, physiotherapy, injection and surgical review if the conditions are not improving. He said that in his opinion the plaintiff could not perform manual tasks of lifting more than 10 kilograms, frequent wrist movement, and that the plaintiff required rest breaks. He also noted some interference for domestic and leisure activities.[28] Dr Naing does not appear to have had a history of any injury to the right knee. It is clear that no treatment has been offered for any right knee injury.
[28]PCB 67
29The only other medical report is a medico-legal assessment of Mr Vishal Pai, orthopaedic surgeon, obtained at the request of the defendant. In his report dated 25 August 2021,[29] Mr Pai sets out the history and examination findings. The right knee examination was normal, with no significant objective findings. He said that the right knee fracture had healed well without any deformity, the knee was stable and there was a full range of movement.[30] He said, on his assessment, there was a soft-tissue injury to the right elbow and right knee, but on clinical assessment both injuries had healed well, with minor residual symptoms in the right elbow, with no indication for any intervention treatment.[31] He said there was no absolute contraindication for the plaintiff to engage in his original work tasks with postural modifications and pacing his activities.[32]
[29]Defendant’s Court Book (“DCB”) 3
[30]DCB 6
[31]DCB 7
[32]DCB 7
Analysis
Right knee
30There is no dispute that the plaintiff suffered a fracture of the right femoral condyle. Equally there is seemingly no dispute that the right knee fracture has healed well. The plaintiff has a full range of movement and little or no objective clinical findings, perhaps apart from some mild crepitus. The plaintiff has no active treatment for his knee. There is no suggestion that he will require any treatment. His current general practitioner does not appear to be aware of any knee injury and, of course, Dr Fildes thought that the plaintiff’s condition had healed when he ceased treating the plaintiff in August 2019. The situation is that the treatment is not at the lower end of a range, it is simply not in the range at all.
31The evidence at its highest is that the plaintiff has right knee pain, as set out in his affidavits. In his first affidavit, he described knee pain as present most of the time, generally dependent on weightbearing activities and where he described effectively how the more he did with his right knee the more pain he had. In his second affidavit, he described the impact on activities such as jogging, cycling and the like. The plaintiff does not explain in his affidavit material the level of pain he suffers, but by inference it is certainly not bad enough to complain to his general practitioner or seek treatment.
32Accepting the evidence of the plaintiff, even taken at its highest, there is such limited complaint of pain and restriction that, on my assessment, bearing in mind the range of possible impairment consequences, the claimed right knee is simply not “serious”. It does not produce a very considerable consequence, either in respect of pain and suffering or pecuniary loss, or in combination. Indeed, on a consideration of the whole of the evidence – limited as it is – the irresistible conclusion is that the right knee injury could simply not be said to be “serious”.
The right elbow injury
33The defendant accepts that the plaintiff has an ongoing right tennis elbow related to the accident. A consideration of the plaintiff’s affidavit material and the whole of the evidence tends to the conclusion that the right elbow is of greater consequence to him than the right knee.
34I accept the plaintiff’s description of ongoing intermittent right elbow pain. However, once again, there is on the evidence no clear indication as to the level of pain. The plaintiff was recommended to undergo a corticosteroid injection which speaks of some ongoing symptoms but, again, does not speak of disabling pain. As put by the defendant in closing submissions, the fact that the plaintiff has chosen not to get the injection, is perhaps an indication that he is able to put up with the pain and to get on with his life.
35The plaintiff has effectively had no treatment for his right elbow. In his most recent affidavit, he describes taking six Panadol a day, but it is unclear whether the Panadol is taken for the knee or the elbow. While the use of six Panadol tablets per day is of some consequence, equally, it is not a prescription medication and it is not a strong painkiller and is at the lower end of a range for the use of medication. That level of medication (assuming it is used to manage elbow pain) also tends to the conclusion that the plaintiff has mild, but manageable, right elbow pain, consistent with his decision not to have an injection.
36Taken at its highest, the plaintiff’s affidavit material describes interference with social and recreational activities, such as cycling, playing cricket and basketball, (bearing in mind that he is now fifty-six years of age). But, by the same token, the plaintiff is able to live independently, and more recently, he has been able to care for his brother. He described some loss of grip strength and difficulty with simple daily activities, such as lifting bottles of milk, but there is no suggestion of anything other than an ongoing ability to engage in the usual daily domestic activities. In isolation, my assessment is that the plaintiff’s right elbow does not cause serious pain and suffering impairment consequences. Perhaps they could be described as “mild” and more than trivial, but certainly, in my view, they could not be said to produce a “very considerable” pain and suffering consequence.
37The next issue is the impact on the plaintiff’s work from his right elbow. In his first affidavit, he describes difficulty with tasks that require the use of the right elbow/arm, such as holding a blower and working hands on to maintain equipment. In his second affidavit, he again describes difficulty with tasks such as using a hand blower. His son also describes restrictions for activities that require his father to use “two capable hands” and strength.[33] He describes his father as not whingeing, but seeing him rub his elbow at the end of the day.
[33]PCB 21
38In closing submission, the plaintiff’s counsel said that there was now a risk factor for him being able to continue in the business and of him struggling to keep up at work.[34]
[34]T40
39The plaintiff accepts that he has not suffered any pecuniary disadvantage to date. Rather, he submitted that he may suffer a pecuniary disadvantage in the future because of his inability to engage in all aspects of his business. As was said in Hooley v Transport Accident Commission,[35] a serious injury may exist where a person has their field of employment reduced, even if there is no actual pecuniary disadvantage to date.
[35][2019] VSCA 263 at paragraphs [46]ꟷ[52]
40I accept the plaintiff’s evidence that he has a loss of strength in his right arm due to his right elbow injury. I accept his evidence that he has intermittent pain and, where possible, avoids heavier aspects of his work. However, contrary to the submission put on his behalf, there is no real suggestion (the “risk factor”) that the plaintiff will need to give up his work. In fact, the evidence tends to the opposite conclusion. It seems there is enough work for both him and his son, and he is able to accommodate whatever restrictions he has from his right arm injury. At times he still engages in hands on tasks. The medical evidence does not indicate he will have to give up work and neither does the plaintiff’s own evidence. As set out in paragraph 16 of these reasons, in his second affidavit the plaintiff describes it as a good business and his hope that the addition of his son will enable the business to grow before his son takes over if he wants to. I accept the submission that the plaintiff is somewhat of a stoic and it is to his credit that he is able to work up to sixty hours per week, notwithstanding some pain and restriction for the use of his right elbow. But, apart from speculation, there is no evidentiary basis to conclude that there will be any pecuniary disadvantage to the plaintiff in the future.
41Again, it could be said that the impairment consequences of the elbow injury on the plaintiff’s work are not trivial, in the sense that he has difficulty with some of the heavier work, but by the same token at present he has not suffered any pecuniary disadvantage and the evidence does not enable a conclusion to be drawn that there will be a considerable, let alone a “very considerable” pecuniary disadvantage in the future.
42Of course, the plaintiff may combine the pain and suffering and pecuniary disadvantage consequences for an assessment of the seriousness of the injury. But, as already mentioned, the pain and suffering consequences, on my assessment, are limited and mild. Even when those limited consequences are combined with the restrictions that the plaintiff has for employment, I do not consider the plaintiff to have demonstrated a “very considerable” consequence.
43Pausing here, it is worth remembering that the seriousness of an injury is to some extent informed by not only what is lost, but what is retained. In the present case, the plaintiff still works up to approximately sixty hours per week. He is still able to engage in recreational and social activities. He has been able to form a new relationship. He has been able to care for this brother. He has no treatment, and apart from the possibility of an injection in the elbow, treatment is not indicated. In my view, notwithstanding that the plaintiff struck me as a thoroughly decent and stoic man, he simply does not have impairment consequences which are “very considerable”, either in respect to the right knee or the right elbow. Indeed, I would go so far as to conclude that, even if he could combine the impairment consequences of right knee and right elbow injuries - which of course he cannot - then, in combination, the injuries would not produce a “very considerable” consequence.
44Accordingly, the application is dismissed.
45I will hear from the parties as to the question of costs.
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