Kidane v Victorian WorkCover Authority
[2015] VCC 656
•29 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-01934
| YODIT KIDANE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 May 2015 | |
DATE OF JUDGMENT: | 29 May 2015 | |
CASE MAY BE CITED AS: | Kidane v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 656 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to right shoulder and right wrist – pain and suffering only – restriction in areas of employment - whether consequences “very considerable” – wrist and shoulder injury as one body function – Medical Panel Reasons
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b); Evidence Act 2008, s135
Cases Cited: Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr M Belmar Salas | Maurice Blackburn Pty Ltd |
| For the Defendant | Ms J M Forbes QC with Ms N Wolski | Minter Ellison |
HIS HONOUR:
Preliminary
1 The plaintiff, Ms Kidane, injured her right wrist and shoulder when she was assaulted by a patient in the course of her work as a personal carer for Doutta Galla Aged Services (“Doutta Galla”). She was diagnosed as suffering a ligament injury to her right wrist which was surgically repaired in July 2006. She was also diagnosed as having a tear to a tendon of the right shoulder which developed into a frozen shoulder. A hydrodilatation procedure was undertaken.
2 Ms Kidane was off work for a period, and returned after the wrist surgery, eventually to her normal 28 hours per week, although with restrictions. Her employment was terminated in 2008. At the present time, she does some voluntary work at the Sunshine Hospital and work in the community.
3 She claims a range of domestic, recreational and social activities are lost or affected as a result of the injury.
4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of Ms Kidane’s employment on 11 March 2006. The body function said to be lost or impaired is the right upper limb. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act, and leave is sought in respect of pain and suffering only.
5 Ms Kidane was the only witness called to give evidence and be cross-examined. In addition, her two affidavits, medical and radiological reports and clinical notes were tendered in evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which proscribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
6 Ms Kidane was born in Eritrea, Africa in 1964. She experienced conflict and war in that country. In the 1980s, she moved to the Sudan and migrated to Australia in 1990. She was married in 1989 and has two adult children. Her husband died in a motor vehicle accident in 2003.
7 When she came to Australia, she started work as a kitchenhand, before working for a community homecare group called Omni-Care. Over a number of months in about 2000, she obtained a Certificate III in Community Aged Care. Eventually, she obtained work with Doutta Galla, working at an aged-care facility in 2004. She worked 28 hours a week over four days. Sometimes she worked up to 36 hours a week. There were sixty or so residents and the work was shared amongst four carers. Her work included assisting residents of the facility with personal hygiene, helping make the beds, toileting, helping them dress and shower, cleaning their rooms and serving meals. Most of the residents were reasonably independent, but some required higher care, and had to be moved using a lifting machine. She enjoyed the work and felt she was making a contribution to the community.
8 Ms Kidane was distressed after the death of her husband, and received some psychological treatment, although there were no significant ongoing symptoms.
9 In 2010, Ms Kidane was treated for bowel cancer with laser surgery, which was successful.
10 Ms Kidane was otherwise well and, in particular, had no pain nor difficulties with her right wrist or shoulder. She was able to carry out all her domestic tasks and enjoyed a social life.
The injury and its consequences
11 On 11 March 2006, Ms Kidane was assisting a patient who was affected by dementia. He grabbed her by the right hand and pulled and twisted it. She struggled for some time and was finally able to break free. She realised she had done some damage to her right arm. She went to see her general practitioner, Dr Navani, on 12 March 2006, complaining of pain in her right hand, wrist and shoulder. He initially treated her with anti-inflammatory medication and rest. She was off work until 15 May 2006. An x-ray of the right wrist suggested “widening of scapho-lunate space”.
12 In May 2006, Dr Navani referred Ms Kidane to a hand surgeon, Mr Richard Maxwell. He treated her from May 2006 until March 2007.[1] She complained to him of pain in the wrist and shoulder, and also pain in the elbow. He injected the elbow with cortisone. He arranged an MRI scan of the right wrist, which showed disruption of the volar distal radio-ulnar ligament, with widening of the joint space. On 20 January 2006, he operated to stabilise the joint using K-wire fixation. She was in plaster for six weeks after the surgery.
[1]Plaintiff’s Court Book (“PCB”) 42(a) – (e)
13 According to a letter from Mr Maxwell of March 2007, the surgery was successful, as there was good anatomical alignment in the wrist, with good wrist flexion, but some limitation in extension and with gradually improving grip strength. He discharged Ms Kidane back to the care of Dr Navani in March 2007.[2]
[2]PCB 42(e)
14 Symptoms continued in the right shoulder, and an MRI scan of October 2006 showed:
“… signs of supraspinatus tendinosis with a partial thickness in-substance tear involving the anterior inserting fibres.”[3]
[3]PCB 46
15 Dr Navani referred Ms Kidane to an orthopaedic surgeon, Associate Professor Martin Richardson, whom she saw in December 2006. He diagnosed her as suffering frozen shoulder syndrome and suggested she undertake hydrodilatation. This was carried out on 8 January 2007. According to his report, she was much improved after the procedure.[4] She subsequently complained to Professor Richardson of ongoing shoulder pain, which he described as “ongoing bursitic symptoms … and evidence of some supraspinatus tendonosis”.[5] He injected the shoulder with local anaesthetic and noted she was doing light duties at work.
[4]PCB 41
[5]PCB 41
16 Professor Richardson reviewed Ms Kidane again in April 2007 and she said her shoulder symptoms had significantly improved, although her neck was causing symptoms. An MRI scan of the neck showed some degenerative disease, in particular, at C5-6 and C6-7.
17 On his last review in August 2007, Ms Kidane told Professor Richardson the right shoulder symptoms continued to be good, with some ongoing discomfort. He recommended acupuncture. She was seeing a physiotherapist, Mr Rob Hunter. She had not returned to Professor Richardson for treatment since.
18 Ms Kidane has remained under the care of Dr Navani, whom she sees presently once a month or so, and he provides WorkCover certificates. She is not seeing any specialist. She cannot remember when she last had physiotherapy.
19 Initially, Ms Kidane returned to work on 15 May 2006 on modified duties. She was away from work for a considerable period after the surgery to the right wrist in July 2006. She returned to work in 2006 and remained working approximately the same hours as before injury until her employment was terminated in October 2008. Over that period, she did lighter duties, including changing bed linen, helping residents with personal hygiene and generally supervising them. She was in charge of five residents (significantly less than before). She says she was never able to return to her pre-injury duties. In evidence, she said she would still be working if this job had remained available.
20 Ms Kidane did a business course over a number of months and obtained a Certificate III in Business Administration – Medical. She thought this might lead to some employment as a medical receptionist. She has applied for jobs but has only obtained one interview. She thinks she did not get that job because of her injury. Presently, she works as a volunteer at the Sunshine Hospital three hours per week. She makes tea and coffee and talks to patients at the hospital. She also visits some members of the Eritrean community. She has provided her résumé to the local Council and is presently being assessed for voluntary work. She is uncertain what that voluntary work will be.
21 Prior to her injury, Ms Kidane went to a local gymnasium for fitness and exercise classes. Since the injury, she has maintained her membership. She still goes to dance classes several times per week. However, she says that they are not as energetic as the classes she enjoyed before. She has to pace herself, and exercises within the limitations of her injury. She enjoys going to the gym, as it gets her out of the house.
22 Ms Kidane claims a range of consequences as a result of the injury of March 2006:
· She has constant pain in her right wrist and shoulder, in particular, the shoulder. She is restricted in the movements of her right arm, and there is a loss of strength.
· It affects her sleep. The pain wakes her and she sleeps on her back and left side.
· She goes to see her general practitioner once a month or so about her symptoms. She takes two Panadol, two to three times a week, for pain. Recently, she has been prescribed Mobic, and takes one tablet, three or four times a week. She uses a heat pack on her right shoulder.
· She has constant pain in the shoulder but regularly has episodes where the pain becomes severe.
· She is able to drive a car, but driving is restricted to about 20 minutes.
· She is restricted, in particular, in the heavier domestic duties at home, which are now done by her children. She shops regularly, but for small items, which she mostly carries using her left arm. She needs the assistance of her children for a major shop.
· Significantly for her, she has lost the ability to work as a carer in the way she did before injury. The work provided her with satisfaction and she felt she was giving to the community. This is a big loss for her.
Medical opinions
23 According to the various reports of Dr Navani, Ms Kidane suffers post-operative wrist pain with capsulitis in the right shoulder and degenerative disease in the neck. He also said she has a secondary Adjustment Disorder. He said she has the capacity for alternative duties, although he said she found typing and keyboard activities increased her pain. He referred her to a psychologist, Sharon Turner, in 2011, to deal with her ongoing pain issues. He said:
“Her functional capacity is restricted and she manages herself within her functional limitations.
…
Yodit is capable of part time work up to 28 hours per week in alternative capacity with restriction to overhead activities and lifting weight over 2 kilograms.”[6]
[6]PCB 39-40
24 Ms Kidane was examined by Mr Robin Williams, orthopaedic surgeon, in May 2008. The report is now old and of limited assistance. He thought her neck and shoulder symptoms were aggravated by having a plaster cast on the wrist for a long time. He thought her soft-tissue injuries had healed but that she had a Chronic Pain Syndrome affecting the right side of her neck and shoulder. He said she was not fit for her pre-injury duties.
25 Ms Kidane was examined by Mr Rodney Simm, orthopaedic surgeon, in February 2015. He provided an extensive report, tracing her history and treatment. She told Mr Simm that the symptoms in her wrist and shoulder had not changed for some years. The pain was over the top of the right shoulder without radiation. She said she felt quite weak in the right hand and arm and there was intermittent numbness in the fingers. She said she could not carry shopping, sweep or vacuum and was now doing many things left handed. She was restricted in other heavier domestic duties. Neurological examination showed no signs of radiculopathy. He diagnosed the following as a result of the incident of March 2006:
“i.A soft tissue injury to the right wrist, with MRI scan evidence of disruption of the distal radio-ulnar joint. The disruption was treated surgically with K-wire fixation. The x-rays I viewed showed that the distal radio-ulnar joint disruption was corrected and there were no clinical signs of persistent radio-ulnar disruption. The surgery proved to be ineffective. She has chronic residual symptoms, without significant restriction of wrist movement following the surgically treated injury.
ii.A soft tissue injury to the right shoulder. She was possibly rendered prone to an injury to the right shoulder from pre-existing degenerative rotator cuff pathology, which included supraspinatus tendinosis and a partial thickness tear. It seems from the file material that as a result of the soft tissue injury to the right shoulder she developed a frozen shoulder syndrome. She has recovered fully from the frozen shoulder syndrome. Clinical examination does not currently reveal any clinical signs of a specific pathological condition of the right shoulder. Therefore she has residual right shoulder pain following a post-traumatic frozen shoulder syndrome in the present of MRI scan changes of early supraspinatus degenerative pathology.”[7]
[7]PCB 54
26 Mr Simm observed some features of chronic pain. He said her movements were more active when viewed spontaneously as opposed to formal examination. He said she showed marked evidence of pain when examined and had developed a –
“… chronic adverse pain response in association with the soft tissue injuries to the right shoulder and right wrist. There may be an associated longterm emotional disturbance, which would need to be assessed by a Psychiatrist.”[8]
[8]PCB 54
27 Mr Simm said she would not be able to perform physically demanding activities using her right arm and would not be able to return to her unrestricted work in aged care. He said she was now confined to light work with the limited use of her right arm and could not carry heavy weights. He said it would be difficult for her to find suitable light employment. He concluded:
“She has an entrenched pattern of chronic pain, which is unlikely to change in the foreseeable future. Future medical treatment will be limited to self-regulation of activities and over-the-counter analgesic medication. It seems that her symptoms are controlled to some extent by a regular exercise programme and I expect she will continue to go to the swimming pool and gymnasium.”[9]
[9]PCB 55
28 Ms Kidane was examined by Dr Nigel Strauss, psychiatrist, at the request of her solicitors in April this year. She told him that she was frustrated and upset about not being able to work, and became depressed. He did not think that her time in war-torn Eritrea significantly contributed to her psychiatric state, nor the loss of her husband in the car accident. He said she suffered a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and some features of traumatisation because of the incident. He observed:
“I also believe that her circumstances and her emotional upset are being translated into ongoing pain which would explain some of her physical presentation. There was nothing at interview to suggest that this woman is deliberately over exaggerating her presentation and she struck me as being a genuine person. However she is upset and distressed which is understandable because of her injury and the circumstances surrounding her injury, and she manifests her upset in the form of physical pain.”[10]
[10]PCB 63
29 The Victorian WorkCover Authority arranged for Ms Kidane to be examined by Dr David Weissman, psychiatrist, in May 2009. His report is rather old and of limited assistance. He diagnosed her as probably suffering a very Mild Adjustment Disorder with Depressed and Anxious Mood, but was not convinced she had developed a Chronic Pain Disorder, although that was possible.
30 Associate Professor Anthony Buzzard, general surgeon, saw the plaintiff in May 2012, and again in March 2015. On each occasion, she complained to him of pain in the right shoulder region which was variable, although worsening, and pain in the wrist with associated pins and needles. He accepted that she had suffered a ligament injury to the right wrist in the incident but he could not explain her ongoing wrist problems as being related to it. He also accepted she suffered a shoulder injury to the rotator cuff area and that her ongoing symptoms in that area were related to that work injury. He thought that the right wrist symptoms did not have a physical explanation.
31 Dr Paul Kornan, psychiatrist, examined Ms Kidane in May 2012. He said she suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He noted she was upset at losing her job and not being able to do her normal activities without discomfort.
32 Finally, Ms Kidane was examined by Dr Mary Wyatt, occupational physician, in April 2015. She received a history of persistent pain in the right neck, right shoulder and right arm, and that there had been limited improvement in the condition over the years. She complained of disturbed sleep. Dr Wyatt said:
“Ms Kidane sustained a disruption of the distal radioulnar joint which has been treated surgically. I note reports that there has been a good outcome from treatment, although at this review Ms Kidane advised she had persistent right wrist pain, and advised residual right shoulder girdle pain.
No wasting was noted in the right forearm, suggesting regular use of the dominant arm.
There is normal range of motion at the right shoulder, although there is tenderness in the shoulder girdle muscles.
I think it is reasonable to accept there are residual mild shoulder dysfunction symptoms as a consequence of the injury of 2006. There is no objective evidence of a significant continued problem at the right shoulder, the right wrist or the neck. It should be noted that musculoskeletal complaints are common in the community, with over half the population experienced long term musculoskeletal soreness. I would put Ms Kidane in that group.”[11]
[11]DCB 57
33 Dr Wyatt said Ms Kidane was generally active, although she thought it was plausible that there would be difficulty with more intense and demanding activities over long periods. She said it was likely she would continue to suffer the symptoms into the foreseeable future. She also thought it was plausible that Ms Kidane would have difficulty returning to her usual duties. She said non-physical factors were now playing a substantive role. Even with the continued pain, she said it should not be causing significant limitations in her day-to-day activities and work capacity.
Medical Panel Reasons for Opinion
34 Ms Forbes, for the defendant, relying on the dicta of Ashley JA in Grech v Orica Australia Pty Ltd & Anor,[12] sought to tender the Medical Panel Reasons for Opinion dated 25 September 2013 as an exhibit. In Grech, Ashley, JA identified two bases upon which the reasons for opinion could be admitted. Ms Forbes submitted that the first basis applied, in essence, that the reasons may be admitted if they were part of the material medical examiners relied upon in reaching their conclusions. Mr McGarvie objected to the tender on the basis that, even if admissible (which was not conceded), the reasons are prejudicial and ought to be excluded under s135 of the Evidence Act 2008.
[12](2006) 14 VR 602
35 I ultimately accepted Ms Forbes’ submission and allowed the Reasons to be tendered. I, however, consider the Reasons to be admissible in a limited manner; that is, insofar as they show that a medical examiner has considered and relied upon those Reasons. The Reasons are not admitted for the medical opinion they express.
36 Having reviewed the Reasons, I do not consider that that they advance the matter in any significant way.
Conclusions
37 Video surveillance film of Ms Kidane was taken on 21 April, 5 and 6 May 2015. It shows her engaged in various activities, including shopping, going to the gymnasium, driving a car and using public transport. In submissions, Ms Forbes said the utility of the film was not so much an attack on Ms Kidane’s credit, but rather a snapshot of her current life, showing her actively engaged in a range of day-to-day activities with little apparent restriction.
38 I do not see the surveillance film as of great significance either as affecting the plaintiff’s credit, or as disclosing a particularly active lifestyle different from what she said in her affidavit and the histories given to the doctors. On one occasion, she lifted and carried a number of blue plastic shopping bags containing fruit and vegetables using her right arm, and then pushed closed her car door. Also, there was an occasion where she used her right arm to lift a bag of oranges across a check-out counter in the supermarket. I accept these activities are somewhat inconsistent with her injury and complaints of pain and restriction, but they represent only a small snapshot in time, and could adequately be explained by her pain and restriction on that day being modest.
39 It is clear Ms Kidane suffered injuries to her right wrist and shoulder in the work incident of March 2006. The injury to her wrist required surgery to the radioulnar joint to fix it in good alignment. Technically, the surgery was successful, although I accept the plaintiff has ongoing symptoms in the wrist, particularly pain and some loss of movement and strength.
40 I further accept she suffered an injury to her right shoulder in the incident. I accept Mr Simm’s opinion that it was likely she had some pre-existing, but asymptomatic, rotator cuff pathology. I accept the diagnosis of many of the practitioners of supraspinatus tendinosis with a partial-thickness tear of the shoulder. Further, and probably as a result of having her right wrist in plaster over a considerable period after surgery, she developed a frozen shoulder. Again, technically, the hydrodilatation procedure performed by Professor Richardson in 2007 was successful, but again, she has been left with residual symptoms in the shoulder with some limitation of movement and strength.
41 I accept the opinions of Dr Navani, the general practitioner. He has treated the plaintiff over a considerable period and I accept his assessment that she suffers ongoing pain, that her functional capacity is restricted and that she is capable of returning to part-time work to the same hours as before injury, albeit with restrictions.
42 Of all the consultant medical opinions, I was most impressed by the opinion of Mr Simm. His report is comprehensive and his assessment thorough. He accepted she has ongoing residual symptoms in the wrist and the shoulder. He accepted those symptoms would prevent her from undertaking physically demanding activities and she would never be able to go back to her unrestricted work in aged-care. Effectively, he said it would be difficult for her to obtain suitable light work. I further accept his opinion that she has some features of a Chronic Pain Syndrome. The context of his report makes it clear that he is referring to a psychological, and not a physical or organic syndrome. In fact, many of the practitioners draw the same conclusion.
43 I raised with Ms Forbes whether there was an issue as to whether there could be an aggregation of the consequences of the injuries to the right wrist on the one hand, and the right shoulder on the other. Quite sensibly, Ms Forbes accepted this was not a case where a separate assessment of the consequences of the right wrist and the right shoulder had to be made. She accepted that in large part, the frozen shoulder syndrome arose as a consequence of the right wrist being in plaster. Thus, to a significant extent, the right shoulder problem was a consequence of the right wrist problem. In all the circumstances, it is appropriate to consider the right arm as a whole, including the consequences which arise from both the wrist and the shoulder.
44 However, the authorities make it clear that the consequences arising from a non-organic injury must be disentangled and set aside from the consequences arising from a physical injury. I accept the assessment of Mr Simm that the plaintiff does present with some feature of a Chronic Pain Syndrome. Dr Strauss explained this well when he said that because of the injury and the emotional upset it brought, this was translated into some form of physical pain. He said she was not deliberately exaggerating her presentation and he found, as do I, her to be a genuine person.
45 It is never easy in cases such as this to precisely determine the extent to which a worker’s pain and restriction is, on the one hand, physically based, and on the other, of psychological origin. Medically, the issue cannot be the subject of precise and accurate assessment. In Meadows v Lichmore Pty Ltd,[13] the Court of Appeal accepted that a two-step approach was appropriate. If it could be said that the consequences of which a worker complains have a substantial organic basis and that those consequences achieve the statutory test, then an application was likely to succeed. If that first step could not be affirmatively accepted, then the next step was to disentangle and set aside those consequences which had a non-organic basis.[14]
[13][2013] VSCA 201
[14]Meadows (supra) at paragraphs 21-25
46 In the present application, I am satisfied that Ms Kidane has proved that while there is some aspect of her presentation which is a psychologically-based Chronic Pain Syndrome, substantially her complaints have an organic basis. That is evident from the pathology of the wrist injury, requiring surgical correction, and the MRI scan of the shoulder showing a tear with tendinosis of the rotator cuff, requiring invasive treatment. That accepted, there is no need to further disentangle.
47 I accept the evidence of the plaintiff as to the consequences she suffered as a result of the incident. In particular, she suffers ongoing pain in her right arm which restricts her in the heavier domestic and workplace activities and requires some analgesic medication. It should be said that her present treatment is modest but that is more to do with the fact that there is little further that can be done for her. I accept that she suffers some disturbance of sleep and a restriction in a range of domestic tasks.
48 Of most significance in my view is the loss to her of her work as a carer. I accept the opinions of Mr Simm and Dr Navani that she would be unable to return to this work. She has made a fair effort to get back to work, including the voluntary work at Sunshine Hospital and registering with the local council. But to someone who enjoyed the unrestricted work she was doing and felt she was contributing to the community, this is indeed a significant loss to her.
49 Persuasively, Ms Forbes argued that, to some extent, the loss to Ms Kidane of the previous employment was compensated by her work at the Sunshine Hospital, her involvement in the Eritrean community and her time at the local gymnasium which provided a physical and social outlet. Further, she pointed to the fact that Ms Kidane accepted in evidence that had she not been dismissed from her employment in 2008, she would probably still be there today. She said Ms Kidane was actively looking for employment, and there were good prospects she would obtain work of a lighter nature and similar to that which she had done before working for Omni-Care.
50 I do not accept the activities referred to provide any real substitute for Ms Kidane’s former employment. I accept there is a real gap in her life, because she is now unable to work in the area she previously enjoyed, with the satisfaction to be gained from assisting others in the community. There is no evidence as to the availability of lighter work, and I note the opinion of Mr Simm that it would be difficult for her to find suitable light employment.
51 The loss of employment is relevant in the assessment of pain and suffering. In Peak Engineering & Anor v McKenzie,[15] the Court said:
“In summary, then, Mr McKenzie was entitled to rely on, and the judge was bound to take into account, any narrowing in the range of employment options open to Mr McKenzie after the hand injury, but only to the extent that this narrowing was probative of:
·the nature of Mr McKenzie’s experience of pain as such; or
·Mr McKenzie’s loss of enjoyment of life, relevantly because of his inability to engage in an occupation which he had previously enjoyed.”[16]
[15][2014] VSCA 67
[16]Peak Engineering & Anor v McKenzie (supra) at paragraph 45
52 I accept, in Ms Kidane’s case, that the injury and restrictions it brings do narrow the range of employment open to her. Ms Forbes argued that, like in an assessment for economic loss, it is not to the point whether work is available, rather it is a worker’s capacity to undertake employment that is relevant. I am not persuaded that argument is correct when one looks at the loss occasioned by the narrowing of the range of employment in a pain and suffering context.
53 Bearing all these matters in mind, I am satisfied that the consequences achieve the “very considerable” test the legislation requires.
54 I shall make consequent orders.
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