Kenning v TAC
[2018] VCC 504
•20 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-04340
| MARY ADELE KENNING | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2018 | |
DATE OF JUDGMENT: | 20 April 2018 | |
CASE MAY BE CITED AS: | Kenning v TAC | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 504 | |
REASONS FOR JUDGMENT
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Subject: Transport accident
Catchwords: Serious injury; Elbow injury; Range of consequences
Legislation Cited: Transport Accident Act 1986;
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Abbas v TAC [2015] VSCA 217; Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187; Dwyer v Calco Timber Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Valiotis | Arnold Thomas Becker |
| For the Defendant | Ms B. Myers | TAC Legal |
HIS HONOUR:
Introduction
1 Mary Kenning was involved in a transport accident when a bicycle she was riding in St Kilda Road, Melbourne was struck by a motor vehicle on 7 January 2015. As a result of the collision she fell from her bicycle landing on her right side, and suffered injury to her right elbow and shoulder.
2 She was taken to the Alfred Hospital by ambulance. She remained under observation for a period of hours, and was then discharged with her right arm in a sling. She was given come medication and referred for physiotherapy.
3 At the time of the collision Ms Kenning was 26 years of age and was working in the hospitality industry. She had been raised in Northern Ireland and originally came to Australia in 2011. She had obtained tertiary qualifications in Northern Ireland, including a Bachelor of Sports Sciences. During her studies she had been employed as a part-time netball coach and engaged in that sport competitively.
4 As a result of the transport accident she experienced ongoing difficulties with her dominant right elbow and underwent surgery in November 2015. She now seeks leave to claim damages in accordance with the provisions of section 93 of the Transport Accident Act 1986 (“the Act”) on the basis that she suffers a “serious injury” as defined in section 93(17) of the Act. Ms Kenning relies upon paragraph (a) of the statutory definition, and identifies the right upper limb as the body function said to be relevantly lost or impaired.
5 The defendant opposes the grant of leave principally on the basis that the consequences claimed by Ms Kenning do not satisfy the statutory definition in that they fall short of being fairly described as “at least very considerable and more than significant or marked.”[1] The defendant challenged, to some degree, the plaintiff’s reliability as an historian, although the case before me ultimately did not turn on the plaintiff’s credit.
[1]Humphries v Poljak [1992] 2 VR 129 at [40]
6 The plaintiff was the only witness required for cross-examination. The parties otherwise relied upon material tendered from their respective court books. There was little dispute as to the nature of the plaintiff’s elbow injury. The argument centred on the extent of long-term consequences said to impact the plaintiff.
The lay evidence
7 Ms Kenning relied upon affidavits sworn on 22 November 2017 and 10 April 2018.[2] In her initial affidavit the following matters were of particular relevance:
[2]Exhibit A, p1-8
· At the time of the transport accident Ms Kenning was employed as a restaurant manager “on the floor” in a restaurant in St Kilda Road, Melbourne, and was doing 40 to 50 hours per week. In addition she was playing netball once per week, attending gym three times per week and running and cycling to keep active.[3]
[3]Exhibit A, p2[6] & [7]
· Following the transport accident she went back to work in February but was still doing physiotherapy and in pain. She tried to resume work but her right elbow was extremely painful and she could no longer perform front of house duties at the restaurant and:
“… I had to resign my job. I was incredibly upset about this, but I knew that I had to find work.”[4]
[4]Exhibit A, p2[10]
· In March 2015 she obtained work as a sports co-ordinator at the Albert Park Indoor Sports Centre:
“It is an Administrative role generally involving the co-ordination of events at a private sports centre.”[5]
· At that stage she had ceased netball completely.[6]
· Ms Kenning underwent surgery on 2 November 2015 as her elbow had commenced locking. The surgery fixed that issue and allowed her close to a full range of elbow movement, but she still has pain when force is applied to the arm.[7]
[5]Exhibit A, p2[11]
[6]Exhibit A, p2[11] to [12]
[7]Exhibit A, p2[12] to [13]
8 The first affidavit went on to describe ongoing difficulties suffered by Ms Kenning at that time, and also set out her concerns about the potential development of osteoarthritis as advised by both her treating surgeon and a medico-legal consultant.[8]
[8]Exhibit A, p3[21]
9 In her most recent affidavit Ms Kenning confirmed her ongoing employment as a netball/sports co-ordinator at the Albert Park Sports Centre. She set out details of her earnings from 2014 to 2017 and described suffering a small financial loss as a consequence of the transport accident.[9]
[9]Exhibit A, p6[5] to [6]
10 She confirmed that she was taking little medication and had sought no medical treatment in relation to her elbow over the past two years. She additionally described some restrictions in her physical activities, especially with lifting weights when attending the gym.[10]
[10]Exhibit A, p3[9] to [10]
11 Ms Kenning described in considerable detail the impact of her elbow injury on her participation as a netball player.[11]
[11]Exhibit A, p7[10] to [15]
12 The affidavit also made reference to some restrictions impacting on both her flexibility of employment, her personal care and domestic activities.[12]
[12]Exhibit A, p8[16] to [18]
13 When cross-examined I noted the following matters as relevant to this application:
· Ms Kenning had worked for the Melbourne Tigers basketball team as a sports administrator between 2013 and 2014. This was essentially administrative work.[13]
[13]Transcript (“T”) 8, Line (“L”) 22 to T 9, L 6
· She had also worked as a sports coach for Camp Australia in 2013 and 2014.[14]
[14]T 9, L 7-11
· Her restaurant position prior to the transport accident involved administrative duties, but also being on the floor constantly, including collecting plates and taking food out. She had done this for about a year and a half prior to the accident.[15]
[15]T 10, L 1-13
· Her current role was 38 hours per week and involved mainly administrative duties, but also “a small part but a necessary part” of her work involved setting up sports equipment.[16]
[16]T 11, L 11-22
· Her treatment following the accident involved avoiding weight bearing on the arm for six weeks and starting physiotherapy after two weeks to try and build up strength. She was told that the fracture would heal by itself.[17]
[17]T 12, L 11-27
· She was certified off work from 7 to 23 January and believes she returned to work after about two weeks following some physiotherapy and then had further time off. She had a trip to Thailand booked in mid-February.[18]
[18]T 13, L 7-31
· Ms Kenning agreed that in her first affidavit she had stated:
“I took six to seven weeks off work to the end of February 2015.” … “By the end of February I went back to work whilst I was still doing physio and still in pain.”[19]
[19]T 14, L 18-31
· By mid-March, after working two to three days, Ms Kenning believed she would be permanently unable to do her duties and would cease the job she had enjoyed.[20]
[20]T 16, L 2-12
· She believed she had commenced physiotherapy two weeks after the accident, but agreed with a physiotherapy record noting her first attendance on 16 February 2015.[21]
[21]T 16, L 22-30
· Ms Kenning further agreed that a note by the physiotherapist to her employer suggested that she had returned to work by 16 February 2015:
“I would have been back for maybe a day.”[22]
[22]T 17, L 23-30
· Ms Kenning only applied for one alternative job and was offered it after a few days.
“I think it was the following - the next week, I think it started.”[23]
[23]T 19, L 10-20
· By the time she commenced the new employment she agreed that she had spent two weeks in Thailand and had only very limited physiotherapy and treatment from a general practitioner. She had taken no medication other than what was given to her at the hospital.[24]
· She denied that she had always intended to get a job in sports administration:
“I enjoyed hospitality and I enjoyed the interaction and the social side of it. I worked in hospitality since I got to Australia.”[25]
· She agreed she had a passion for sport but not for sports management.[26]
· She agreed with a notation by her physiotherapist on 11 March 2015 that she was progressively weight bearing and strengthening and her pain had improved, “none at all now, just fatigued.” She was doing a home exercise program involving repetitions of one kilogram weights.[27]
[24]T 20, L 11 to T 21, L 1
[25]T 21, L 15-18
[26]T 21, L 13-20
[27]T 22, L 23-31
14 There was further cross-examination concerning Ms Kenning’s progress with physiotherapy and also noting reports of locking in the elbow and pain when progressing to three to four kilogram weights. This related to the period prior to the surgery in November 2015 and is not particularly relevant to the present application.
15 I noted further cross-examination relevant to the orthopaedic referral and the plaintiff’s later progress.
· She underwent a CT scan of the right elbow on 16 June 2015 and was referred to the orthopaedic surgeon, Mr Csongvay.[28]
[28]T 27, L 16-26
· She underwent surgery on 2 November 2015 and had a couple of days off work followed by physiotherapy in the Cabrini private rooms. She believed the physiotherapy continued until about January or February.[29] She did not know the names of the physiotherapists.
[29]T 28, L 18-31
· She returned to netball in mid-2016, but following the operation when she returned she had been playing at a lower level. She denied playing at the same level as before the accident stating that she was just a week-by-week proposition:
“I was just a fill-in.”[30]
[30]T 30, L 2-16
· She had gained weight because she was doing a more administrative role now and not on her feet as much and not playing as much netball as she did before the accident.[31]
· Ms Kenning agreed that she had been hospitalised during 2017 on a number of occasions for a stomach problem and had missed netball because of that condition. She was still attending the gym three times per week and still doing some weights, but was limited to anything above five kilograms.[32]
· Ms Kenning participated in activities at the gym, but avoided activities that irritated her elbow.[33]
· She continued to run and described her cycling as riding “to work, just … yes, across the park.”[34]
· In addition to her trip to Thailand she had returned to Ireland in 2017 to get married. She had a honeymoon in Europe visiting France, Spain, Croatia and Italy and was away for six weeks.[35]
· She had last seen her treating surgeon, Mr Csongvay, in February 2016 and described at that time some minor intermittent discomfort in her elbow. She had not seen her general practitioner in respect of the elbow injury since January 2015, nor had any physiotherapy since February 2016.[36]
· Ms Kenning had not been prescribed any prescription medication, but did occasionally take some over-the-counter painkillers.[37]
· Finally in cross-examination she agreed that she had “a normal life with some elbow pain.”[38]
[31]T 30, L 25-29
[32]T 31, L 1-19
[33]T 32, L 19-30
[34]T 33, L 2-3
[35]T 33, L 4-18
[36]T 33, L 25 to T 34, L 13
[37]T 34, L 14-16
[38]T 34, L 27-28
16 When re-examined Ms Kenning explained that in her current work she would be involved in changing the netball and soccer posts for competitions, and would ask a staff member or one of the patrons to assist her. She also gave evidence that the stomach problems over the last two years had caused her to spend five or six days in hospital and only caused her to miss one game of netball. She also confirmed that since the transport accident she had played about half the number of netball games she had previously played stating:
“I used to play maybe three, four games a night. Now, I haven’t played in seven, eight weeks. So since the accident I probably play half the amount of games that I used to.”[39]
[39]T 36, L 7-11
The medical evidence
17 The plaintiff tendered in evidence three reports from the treating orthopaedic surgeon, Mr Csongvay, dated 12 October 2015, 16 November 2015 and 15 August 2017.
18 Additionally two brief reports were tendered from Dr Judith Carman at the Acland Street Medical Centre.[40] Dr Carman could only comment that Ms Kenning had one consultation with another general practitioner at the clinic on 8 January 2015. There was otherwise no record of further treatment.
[40]Exhibit A, p17-19
19 Mr Csongvay first saw Ms Kenning on 1 October 2015 when she complained to him of discomfort around the elbow and intermittent elbow locking. He arranged for an MRI scan and subsequently performed an arthroscopy and debridement on 2 November 2015. He reviewed her in November 2015 and finally on 8 February 2016 where he noted:
“She had regained full active elbow mobility with the elbow clicking also having resolved. She had some minor intermittent discomfort in the elbow with certain positions but overall was coping very well. She was very happy with the result and I was more than happy for her to gradually return to her normal activities and I discharged her from my care.”[41]
[41]Exhibit A, p14
20 In his most recent report dated 15 August 2017 Mr Csongvay expected Ms Kenning to have a normal capacity for employment. As to prognosis he commented:
“My expectation is that Mary is likely to have very minimal right elbow problems into the future with appropriate care and activity modifications. There is a possibility that this small area of chondral injury can progress over time and may develop into focal post-traumatic osteoarthritis of the radiocapitellar joint which may require further attention and treatment.
I believe the risk of this developing is low - moderate.”[42]
[42]Exhibit A, p15
21 Ms Kenning also relied upon medico-legal opinions from Mr Douglas Gardiner, orthopaedic surgeon, Dr David Middleton, occupational health and rehabilitation consultant, and Dr Chris Baker, specialist in occupational medicine.
22 Mr Gardiner examined Ms Kenning on two occasions and provided reports dated 21 August 2017 and 20 February 2018.[43]
[43]Exhibit A, p20-30
23 In Mr Gardiner’s first report he noted the findings made by Mr Csongvay at operation and in particular a small defect in the radial head articular cartilage and some synovitis. He further noted that the arthroscopy had resolved the mechanical locking in Ms Kenning’s elbow, but she continued to experience intermittent pain which prevented her momentarily from straightening the right elbow. His diagnosis noted the radial head fracture, traumatic synovitis in the elbow and traumatic chondromalacia. He further commented that she had restrictions in employment that required repetitive or vigorous use of the right arm stating:
“She has abandoned her employment as a restaurant manager because of the difficulties related to lifting and carrying heavy weights.”[44]
[44]Exhibit A, p23
24 He expressed the opinion that she had suffered:
“… a small degree of irreversible disruption of the articular cartilage of the radial head which may continue to cause mechanical symptoms as well as any other general injury to the synovium and the capsule of the right elbow joint. These changes are irreversible and likely to continue causing her problems in the future to a mild to moderate degree.”[45]
[45]Exhibit A, p23-24
25 He further noted that:
“… the likelihood of developing osteoarthritis of the right elbow has been detectably increased to a level above what it would have been had the road accident of 7 January 2015 never occurred.”[46]
[46]Exhibit A, p24
26 Following a review of Ms Kenning in February 2018 Mr Gardiner noted:
“Ms Kenning still finds herself limited in the activities that she can perform with her right upper extremity due to right elbow pain and weakness which include both occupational and recreational aspects of her life.”[47]
[47]Exhibit A, p28
27 He believed her current employment as a netball co-ordinator was suitable as that role did not require vigorous physical effort. His comments otherwise in relation to the future prognosis of her condition and the likelihood and the development of osteoarthritis were essentially the same as expressed in his earlier report.
28 Ms Kenning also relied upon a report from Dr David Middleton dated 15 March 2018.[48] Dr Middleton had examined Ms Kenning on 6 March 2018. He noted the then current symptoms as “an intermittent sharp pain with activities involving the right elbow, it being pain free at rest.” He further noted that the pain was aggravated when lifting heavier items or attempting forceful use of the right elbow where Ms Kenning restricted herself to weights or forces around five kilograms. He further noted that she avoided activities such as vacuuming and occasionally strapped her elbow when playing competition netball.[49]
[48]Exhibit A, p31-42
[49]Exhibit A, p34
29 Dr Middleton noted a loss of grip strength of about 15 per cent in the dominant right hand when tested using a hand dynamometer. He also noted a small loss of extension in the expected range of movement of the right elbow.[50]
[50]Exhibit A, p35
30 Dr Middleton’s diagnosis of the injury was similar to that of Mr Gardiner. He was of the opinion that she was restricted to non-manual employment duties:
“… with significant limitations in the use of her right upper limb and needs to avoid forceful, prolonged and/or repetitive activities involving the right upper limb.”[51]
[51]Exhibit A, p41
31 He was guarded as to Ms Kenning’s future prognosis and expressed a view that:
“… there is a measurable likelihood that Ms Kenning’s current condition will deteriorate.”[52]
[52]Exhibit A, p41
32 Mr Valiotis, who appeared on behalf of Ms Kenning, tendered into evidence an earlier medico-legal report obtained by the Transport Accident Commission from Dr Chris Baker.[53] Dr Baker had examined Ms Kenning in September 2016. Dr Baker also noted the symptomatology at that time commenting on a lifting limitation of five kilograms with the right arm, and the avoidance of activities such as turning door knobs or throwing a ball. He further noted that quick movements were causing pain at that time.
[53]Exhibit A, p44-48
33 Dr Baker’s opinion was that Ms Kenning had:
“… functional limitations with the use of the right arm and is limited when undertaking forceful movements with the arm and limited in carrying weights.”[54]
[54]Exhibit A, p48
34 Dr Baker felt that these limitations would continue into the foreseeable future and also expressed an opinion as follows:
“… I anticipate that she will develop post-traumatic arthritic change in the region of the radial head.”[55]
[55]Exhibit A, p48
35 Ms Myers, who appeared on behalf of the defendant, tendered into evidence a medical report from Mr Peter Gard, orthopaedic surgeon, dated 21 February 2018.[56]
[56]Exhibit 1, p1-4
36 Mr Gard examined Ms Kenning on the same date. He noted her symptoms as follows:
“Mary has persisting pain, which is predominantly lateral and occurs during lifting or pushing, particularly overhead or with repetitive movement. Sometimes with activity Mary is able to do it without pain and at other times the pain will be intense and she will either have to stop or rest or modify her approach to lifting or pushing.”[57]
[57]Exhibit 1, p2
37 He further noted that she had to discontinue her role as a restaurant manager due to difficult in lifting and carrying and had subsequently found work as a sports co-ordinator. In relation to this employment he noted that she:
“… enjoys the work and feels like she is able to cope with most things. With some moving of sports equipment and other moving activities she sometimes summons assistance.”[58]
[58]Exhibit 1, p2
38 On examination he found no focal tenderness in the elbow but commented:
“There was perhaps a tiny amount of crepitus with 90 degrees of flexion and using pronation/supination at the posterolateral aspect of the elbow. The elbow exhibited a good range of motion with full extension achieved and flexion equal to the other side of around 145 degrees.”[59]
[59]Exhibit 1, p3
39 He also opined as to her future prognosis as follows:
“There is a small possibility that there could develop radio-capitellar arthritis at some distant future time.”[60]
[60]Exhibit 1, p3
40 He did not recommend any further treatment and commented:
“I think her residual pain is related to the small area of chondromalacia and no appropriate treatment exists for that. Intervention such as radial head removal or replacement would be excessive for the degree of symptomatology.”[61]
[61]Exhibit 1, p3
Analysis
41 The medical evidence is clear in terms of the nature of the injury suffered by Ms Kenning in the transport accident of 7 January 2015. I am satisfied that she suffered an undisplaced fracture of the right radial head, which was treated conservatively, but later required surgical intervention by Mr Csongvay in November of that year. The surgery appears to have been required because Ms Kenning was suffering some intermittent locking of the elbow, which has now resolved.
42 I am satisfied that she now presents with intermittent pain and some loss of function of the dominant right arm which impacts on aspects of her domestic and recreational life, and to some limited extent, on her employment.
43 Mr Valiotis, in final address, urged me to take account of the plaintiff’s youth and the medical evidence supporting the likelihood of a deterioration in the elbow over time with the development of osteoarthritis. Mr Valiotis submitted that the medical evidence was unanimous in pointing to an increased risk of the development of osteoarthritis at some future time.
44 I was also referred to the authority of Abbas v TAC[62] to support the submission that the plaintiff’s change of employment from hospitality to sports administration should be taken into account as a potential pecuniary disadvantage relevant to the plaintiff’s application.
[62][2015] VSCA 217
45 Although the evidence indicated that the plaintiff had received little by way of medical treatment, Mr Valiotis submitted that her evidence of taking medication once or twice per week should be given weight as being indicative of the plaintiff’s endurance of daily pain requiring frequent use of medication.
46 I was also referred to the plaintiff’s evidence as to her loss of physical conditioning due to the reduction in playing netball and restrictions suffered by her in terms of her daily care, including hair washing and aspects of dressing. Mr Valiotis also submitted that the plaintiff’s weight gain, as recorded by Dr Middleton, was a relevant consequence to be considered as part of the application.
47 Ms Myers, on behalf of the defendant, submitted that the extent of consequences suffered by the plaintiff did not satisfy the statutory test to enable leave to be granted. She also challenged the plaintiff’s reliability as a witness and highlighted matters in her affidavits which were inconsistent with the evidence given by Ms Kenning before me.
48 In particular she submitted that the circumstances in which the plaintiff had left her employment as a restaurant manager and obtained employment in her current position, and her participation in netball since the transport accident, were matters that should be viewed with a degree of caution.
49 Ms Myers further submitted that the medical evidence was supportive of the plaintiff obtaining a good result from the surgery performed by Mr Csongvay and urged me to accept his opinion that Ms Kenning had a normal capacity for employment and was likely to face only very minimal right elbow problems into the future. She further emphasised the absence of ongoing medical treatment and the failure of the plaintiff to lead any evidence from the physiotherapist who had attended her post-surgery.
50 Insofar as the range of consequences is concerned, Ms Myers referred me in particular to the approach to such assessment set out in Dwyer v Calco Timbers Pty Ltd[63] where Eames JA stated:
“The appellant undoubtedly suffered an unpleasant injury which has affected his life and restricted the movement of his arm. Her Honour was not denying that, but she was obliged to try to place the injury within a scale that ran from a trivial injury to the total loss of the limb. Within that range was a point where an injury became very considerable, and the legislation obliged her Honour to make a conscientious determination whether this injury, as unfortunately as it was, crossed that line.”
[63][2006] VSCA 187 at [19]
51 I was also referred to the authority in Dwyer v Calco Timber Pty Ltd (No 2)[64] where Ashley JA stated at [27]
“Finally, I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
[64][2008] VSCA 260
52 Finally, Ms Myers referred me to a number of authorities where the Court of Appeal had commented on the factors to be considered when assessing applications of this type. It is unnecessary in these reasons to recite these authorities.
53 I accept Ms Kenning as a generally truthful witness, although I note that there were some matters, including her two overseas trips, which may have led to some erroneous conclusion about the severity of symptoms in February 2016 or mid-2017 when these trips were taken.
54 Nevertheless I must assess the application in relation to the consequences suffered by the plaintiff at the time the application proceeds and I do not place any weight on the fact that she was well enough to travel at those earlier times.
55 It is also clear from the plaintiff’s evidence, and from the details of her earnings in the years surrounding the transport accident, that there has been no significant impact on her earning capacity as a result of the transport accident. Indeed Mr Valiotis did not place too much weight on an interference with the plaintiff’s earning capacity, but rather emphasised the loss of a type of employment as part of Ms Kenning’s case.
56 In this regard I cannot accept that the circumstances in which the plaintiff obtained her present employment are entirely consistent with a person suffering an injury of a type that necessitated a career change as was apparent in the authority of Abbas to which I was referred. I do accept that the plaintiff’s loss of enjoyment from the social interaction of working in the hospitality industry is a matter that can be taken into account, but beyond that I think little weight can be placed on the change of employment.
57 I was also referred in submissions to the prospect of the development of arthritis in the elbow. Although there is some medical support for the probability of this condition actually developing, the overall tenor of the medical evidence is that the prospect of the development of arthritis is “measurably” or “detectibly” increased. In this regard I take account of what was said by Ashley JA in Dwyer v Calco Timbers Pty Ltd (No 2) at [26]:
“I next agree with the submission for the respondent that, in assessing the extent of the present and prospective consequences of injury, the prospect that the appellant may develop arthritis in the elbow should not to be overstated. I have not accounted it a matter of much significance in assessing whether or not the impairment consequences are serious for the appellant.”
58 In the present case I could not assess the prospect of the development of arthritis, or indeed the impact of that condition on the plaintiff, as anything more than speculation at this stage. It is a matter that I do take into account, but ultimately it can have little weight absent persuasive evidence as to what impact the development of that condition would have on Ms Kenning. Further, there is no indication from any medical practitioner as to when such a deterioration is likely to occur.
59 Ultimately I am left to assess the consequences of an elbow injury on a young woman who has largely retained her capacity for employment, had the ability to travel oversees to marry and to return to her sporting activities, albeit on a restricted basis. I accept that she has pain and discomfort and that there is a degree of weakness of the elbow which does restrict her in certain activities in her present employment and her sporting pursuits.
60 Notwithstanding these restrictions and my acceptance of the plaintiff as a witness who has done her best to give a truthful account of her symptoms to me, I cannot be persuaded that these consequences should be described as “serious” for her when an appropriate comparison of the consequences suffered by the plaintiff is made with a range of other possible impairments or consequences. I find the consequences to fall in the mild to moderate range and certainly not greater than “significant or marked”.
61 Ultimately in these applications the plaintiff bears the onus of proving her entitlement for leave. I am not satisfied that the consequences of her right elbow injury can fairly be described as at least very considerable or more than significant or marked.
62 The application must be dismissed.
63 I will hear the parties in relation to formal orders and the question of costs.
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