Lozanovski, Andrijana v Transport Accident Commission
[2009] VCC 1233
•30 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CRIMINAL DIVISION
SERIOUS INJURY
Case No. CI-08-05750
| ANDRIJANA LOZANOVSKI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 September 2009 |
| DATE OF JUDGMENT: | 30 September 2009 |
| CASE MAY BE CITED AS: | Lozanovski, Andrijana v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1233 |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident – whether injuries sustained by the plaintiff “serious” – consequence of plaintiff returning to alternative employment on application for leave to sue for pain and suffering damages.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Adams QC with | Vincent Verduci & |
| Mr M. Ruddle | Associates | |
| For the Defendant | Mr R. Middleton SC with | Solicitor to the Transport |
| Ms R. Annersley | Accident Commission | |
| HIS HONOUR: |
1 On or about 25 August 2005 the plaintiff was injured when a motor vehicle she was driving was struck from behind by another motor vehicle travelling at a fast rate of speed on the Western Ring Road (“the accident”).
2 This is an application by the plaintiff by originating motion by which the plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings against the defendant to recover damages for injuries suffered by her in the accident. The plaintiff seeks leave to bring proceedings for pain and suffering damages only.
3 Mr A. Adams QC, together with Mr M. Ruddle of counsel, appeared on behalf of the plaintiff and Mr R. Middleton SC, together with Ms A. Annersley of counsel, appeared on behalf of the defendant.
4 The body function which the plaintiff claims has been lost or impaired is the left lower leg. In opening Mr Adams described the impairment to me in the following terms:
“She asks Your Honour for a determination that she suffered a serious injury with respect to an injury to the left lower leg. It’s described variously as vascular damage. There’s nerve damage. Two rheumatologists have described the injury as being real and being a physical injury. So the loss of body function is the left leg but we’re happy to confine it really to the left lower leg, that is, below the knee.”
5 The following evidence was adduced during the hearing:
• the plaintiff gave evidence and was cross-examined; •
the plaintiff tendered the following evidence from the Plaintiff’s Court Book (“PCB”) pp.14-18 inclusive, pp.23-28 inclusive, pp.28(a)-(b) inclusive, pp.36-85 inclusive: Exhibit A;
•
the defendant tendered the following evidence from the Defendant’s Court Book (“DCB”) pp.1-15 inclusive, p.253, p321, p.328, p.625 and pp.626-631 inclusive: Exhibit 1.
The statutory scheme
6 The application is brought under the definition of “serious injury” contained in sub-s.(17) of s.93 of the Act which requires the plaintiff to prove that she has suffered a “serious long-term impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of a transport accident occurring on or after 20 May 1986[1]; (b) the injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future; (c) the plaintiff bears the burden of proof to be determined upon the balance of probabilities, sub-s.(6); (d) to be “serious” the consequences of the injury must be serious to the plaintiff. In forming a judgment as to whether, when regard is had to such consequence, an injury is held to be serious, the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as “very considerable” and certainly more than “significant” or “marked”?[2]; [1] Section 93(1)
[2] Humphries v Poljak [1992] 2 VR 129 at 140-1
8 I must identify the injury and the impairment said to be produced in consequence of the injury: whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test. I have applied the principles set out above in reaching my conclusions in this application.
9 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The plaintiff’s background and the transport accident
10 The plaintiff is now 44 years of age and was born in Macedonia on 14 January 1965. She migrated to Australia in 1983. She left school at the age of 17 after completing Year 11 and was married in 1984. She has three children, the youngest of which recently celebrated his eleventh birthday.
11 Between 1997 and 2003 the plaintiff worked as a temporary worker at the Target Distribution Centre in North Altona as a store person. This work involved unloading merchandise from shipping containers and trucks. The plaintiff describes her work in her affidavit sworn on 22 September 2008 as heavy work which often involved unloading boxes of 20 kilograms in weight. In 2003 the plaintiff was made a permanent worker at Target and continued doing the same work up until the time of the accident in August 2005.
12 The circumstances of the accident may be briefly described. At the time of the accident the plaintiff was stationery and her vehicle was hit by another motor vehicle travelling behind her at a fast rate of speed. The impact of the collision between the two vehicles pushed her vehicle forward and it collided with three other vehicles which were in front of her. The plaintiff said that she sustained injuries.
13 Following the accident the plaintiff was unable to work for a period of four months until December 2005. During that period she attended at an interview and was promoted from being a “team member” to a “team leader”. She effectively now works as a supervisor and her present work does not require her to do heavy manual work any longer. She is able to cope with her work and works five days a week, eight hours a day and some overtime according to the evidence which she gave me viva voce.
14 At paragraph 9 of her affidavit sworn on 22 September 2008 the plaintiff said that as a result of the accident she suffered:
(a) injuries to her neck and back; (b) left knee; (c) left leg; (d) left foot; (e) left and right shoulders; (f) left arm; (g) headaches; (h) shock; (i) anxiety, depressive neurosis. 15 In evidence before me today the plaintiff said that she had largely recovered from most of her injuries save for the injury to the left leg below the knee.
16 In evidence before me, by way of further evidence to her affidavit material, the plaintiff said that she finds it hard to walk upstairs because it puts pressure on her left leg and it swells as the day goes on depending upon the amount of time she is required to walk upstairs.[3] She was asked to describe the pain in her left leg and she did so in the following terms:
“The pain below my knees usually is very constant and generally gets like a burning sensation, a numbness to it, and the pain in the toes and underneath the foot and the back of the heal is just aching all the time. It’s just, depending on the day – like by the end of the day, my ankle swells, gets larger and my foot actually feels quite tight and sore in the shoes. The back of the calf, is like a sharp pain. It’s not there all the time, so when it is there, it’s quite severe. So if I have the toes, the heel, underneath the knee, the back of the calf, they’re the kind of days that I’ll require to take more medication. But if I’m having a good day, it’s mainly just in underneath and in just the heel.”
[3] Transcript (“T”) 12-13
17 The plaintiff told me in further evidence-in-chief that prior to the accident she enjoyed an active outdoor life with her family and children. She used to attend the Sunshine Roller Skate Centre but she has been unable to do that. She used to enjoy bike riding but has been unable to resume that activity also. The plaintiff also described being unable on occasions to do the cooking and household chores which she said she was assisted in by her husband.
Medical treatment
18 The plaintiff was taken from the scene of the accident to the Western Hospital by ambulance. A report from the Western General Hospital (PCB 36) indicates that she complained of pain over the posterior aspect of the neck and shoulders and pain in the anterior chest wall around the area of the seatbelt. She also had pain in her left knee and lower leg. The report indicates that the plaintiff’s left knee was bruised. She was noted to have a tender bruised left knee in the region of the tibial plateau. The report from the Western General Hospital said inter alia:
“Flexion and extension of her left knee was found to be within the normal range and she was discharged with analgesia and a TAC certificate. Crutches were provided for her painful leg and Tubi grip was applied prior to her discharge.”
19 After being discharged from the Western Hospital the plaintiff attended her local general practitioner, Dr Navani, on 29 August 2007. A report from Dr Navani (PCB 43) says inter alia:
“Mrs Lozanovski complained of painful neck, painful both shoulders, left worse than right, painful upper and lower back, painful chest area, painful left leg, left ankle and left knee.
She was particularly concerned for her left knee and left lower leg. Examination revealed generalised stiffness and tenderness across her upper back, both shoulder girdles and neck, tenderness of the left knee joint and puffiness and swelling related to left upper leg. X-rays of left knee and ankle were arranged which did not reveal any boney injury. She was treated with rest, anti-inflammatory medication and physiotherapy but failed to settle down. Mrs Lozanovski also tried massage therapy and funded it privately to try and improve her left knee condition to little benefit. She complained of ongoing neck pain, left shoulder pain, left leg and left knee pain. CT scan carried on out 5 October 2005 was clear.”
20 The report of Dr Navani indicates that an MRI scan of the left knee was done on 7 June 2006 which revealed minimal joint effusion and nil else. He referred the plaintiff to Dr Alex Stockman, a rheumatologist, in October 2006. Dr Stockman suggested conservative management and orthotics for her “left plantar fasciitis”.
21 Dr Navani provided a second report on 22 April of this year (PCB 45). He reports:
“Unfortunately, Mrs Lozanovski remains troubled with ongoing left leg below knee pain, left foot and heel pain with pain back of her left calf. She also has pain across her left shoulder, arm and left wrist … she is unable to kneel on the left knee but able to walk without much problem … examination showed persistent puffiness and swelling just below the left knee at the anterior aspect of the left tibia extending about six centimetres distally. Left knee itself was normal. Movement of her lumbar spine is normal. Her neck shows a full range of movement with some diffuse tenderness around the left trapezius and paraspinous muscle.”
22 Dr Navani’s diagnosis was as follows:
“Diagnosis is mainly soft tissue injury involving her left lower leg with left plantar fasciitis with left shoulder rotator cuff strain injury and soft tissue injury of the cervical spine with associated secondary adjustment disorder.”
23 Dr Navani referred the plaintiff for physiotherapy to Mr Dennis Jones who saw the plaintiff on 2 February 2007. Mr Jones has provided a report (PCB 38). Mr Jones noted that the symptoms at the time of referral were “pain in the anterior left knee and lower left calf Achilles tendon area”.
24 On examination Mr Jones found in relation to the left knee – “full range of movement – ligament test no abnormality detected – tender medial joint line – poor quadricep muscle control (especially VMO) – tender to palpate infero- medial margin of left patella”.
25 In relation to left ankle Mr. Jones found – “full range of movement – thickened tender lower soleus muscle – weak left calf (cannot left leg calf raise body weight) – gait pattern – lower limb internal rotation excessive during stance phase in gait – excessive pronation of feet in weight bearing, again bilateral with left less than the right”.
26 Mr Jones reported that after a holiday, which the plaintiff had in April 2007, her symptoms dramatically improved and the left knee and lower calf settled. However, upon returning to work, in May 2007, and increasing her prolonged standing on hard surfaces, the symptoms again returned.
27 Dr Navani referred the plaintiff to Dr Alex Stockman, a rheumatologist, who saw the plaintiff for the first time on 11 September 2007. Dr Stockman has provided a number of reports. In his first report (PCB 48), when taking a history from the plaintiff Dr Stockman records:
“The main problem however was pain in the anterior aspect of the left lower leg below the knee, pain in the left heel and the lateral aspect of the left foot and ankle. These pains were worse when she was weight bearing and at the end of the day. Initially, Mrs Lozanovski had a lot of swelling in the left leg but this has gradually subsided.”
28 Dr Stockman’s examination of the left knee and ankle was normal:
“ … but there was tenderness and some swelling in the upper and anterior aspect of the left leg just below the knee. There was no obvious swelling of the ankle but the lateral aspect of the ankle and the dorsum of the foot near the ankle were tender. In addition, she had tenderness in the left heel. When walking on her toes she had a great deal of pain in the heel and could hardly manage this. She had normal straight leg raising tests. There were no reflex or power abnormalities in the lower limbs.”
29 Dr Stockman’s initial diagnosis was that of soft tissue injury in the left lower leg and left plantar fasciitis. He suggested continuation with massage and also referred the plaintiff for orthotics.
30 Dr Stockman reviewed the plaintiff on 11 September 2007. She reported a little improvement in regards to her left and calf since she began wearing orthotics. She also reported, “She was still troubled by the constant numbness in the left leg just below the knee and stated that the pain in the left ankle and foot had not resolved completely.” On examination, on 11 September 2007, Dr Stockman found no obvious swelling or crepitus in the knee and movement range was full. However, there was tenderness over the inferior and medial aspect of the knee and there was again altered sensation to touch and pinprick, just inferior to the knee on the medial and anterior aspect which extended some five to six centimetres distally.
31 Mr Stockman’s opinion was:
“Mrs Lozanovski sustained severe bruising of the left leg just below the knee as a result of a motor car accident in August 2005. She has been left with localised sensory deficit and pain in this area which I feel is due to a peripheral nerve and soft tissue damage/bursitis respectively. These symptoms are likely to continue, probably indefinitely and I would expect little change in the foreseeable future. Furthermore, Mrs Lozanovski has pain in the left foot and ankle, which is likely to be due to altered mechanics from plantar fasciitis. This has improved considerably since she has been wearing orthotics. She is likely to be left with minimal pain in this area provided she continues wearing her orthotics.”
32 On 12 December 2007 Dr Stockman reported to the general practitioner, Dr Navani inter alia as follows (PCB 54):
“She continues to complain of pain in the left knee and proximal aspect of the tibia. I feel that this is due to persistent soft tissue injury. I cannot suggest any treatment. However she has evidence of left plantar fasciitis and if this persists she may need an ultrasound of the heel and a steroid injection.”
33 Dr Stockman provided a further report at PCB 55. He said that he reviewed the plaintiff on 12 March 2008:
“Her main problem continued to be increased sensitivity to touch in the anterior aspect of the left lower leg and pain in the left foot. Because of sensory symptoms in the left leg I requested MRI scan of the lumbar spine to exclude nerve root damage. I next saw this lady more than 12 months later on 12 May 2009. She continued to complain of pain in the left and numbness in the front of the left leg just below the knee. She also continued to complain of pain in the left heel. Consequently, I sent her for ultrasound of this area. I requested cortico-steroid injection into the plantar fascia should the ultrasound confirm plantar fasciitis. Mrs Lozanovski was next seen on 22 July 2009. Her condition was unchanged with constant pain in the left heel, ankle and lateral aspect of the left foot, pain in the left leg and the knee. She stated that the symptoms were constant and were worse at the end of the day. She stated the pain was worse when she was weight bearing but was still there when she was lying down. The leg has been feeling hot.”
34 Dr Stockman reported that he saw the plaintiff again on 14 August 2009: “Her symptoms were unchanged since the previous visits, mainly she has been having pain in the inferior aspect of the left knee, pain in the left lower leg and calf, pain in the left ankle and lateral aspect of the left foot. She stated that her pain was constant but worse at the end of the day. Although walking was aggravating her pain, she was not limited in the distance that she could walk. She denied any pins and needles or numbness in the leg, nor has there been any change in temperature of the leg. However, tasks such as shaving or waxing her leg were causing her a great deal of pain.”
35 Mr Stockman’s opinion in his report of 14 August 2009 (PCB 57) is as follows:
“Since my last report to you in December 2007 Mrs Lozanovski’s continued condition has remained unchanged, namely she has continued to complain of pain in the left leg and particularly the left ankle and foot. The pain is constant but worse when she is weight bearing. Examination does not reveal any objective findings but there is tenderness as described above and sensory loss in the lower leg. I am of the view that her pain is originating from soft tissues in the left lower leg and the left foot and ankle. She also has some evidence of peripheral sensory nerve injury in the left lower leg. This cannot be precisely characterised. This could be a manifestation of chronic pain syndrome as mentioned by Dr Blombery.”
36 Dr Peter Blombery, a consultant physician saw the client for medico-legal purposes on 7 April 2008. In taking her history he noted “there were no symptoms of changes in temperature or colour of the leg”. In his opinion at (PCB 60) Dr Blombery opined, inter alia as follows:
“The injury to her left leg was in the nature of soft tissue injuries which have now been complicated by the development of a chronic pain syndrome in the affected area. In addition she has evidence of nerve damage as demonstrated by the area of altered sensation over the anterior and medial aspect of the calf. In regard to the soft tissue injuries to her left leg, these have also caused ongoing swelling in the leg which is significantly greater in circumference in the right calf. This swelling is due to a combination of lymphatic oedema and fluid retention in response to the soft tissue injury, confirming the severity of the injury.”
37 In a subsequent report from Dr Blombery (PCB 63) dated 25 August 2009 he did not change his opinion.
The defendant’s medical evidence
38 The defendant arranged for the plaintiff to be medically examined by Dr John Gurry, who saw the plaintiff on 27 October 2008 (DCB 6). Dr Gurry was asked for clarification of his report which he gave at PCB 15 on 25 November 2008 in the following terms:
“If you read my report fully you would notice that I said that this lady sustained significant soft tissue injuries to her left leg below the knee. Such injuries would involve smaller blood vessels and lymphatics which have been injured as a result of the trauma. She therefore has vascular disease resulting from trauma in her left leg.”
39 Michael Dooley, orthopaedic surgeon, also saw the plaintiff for medico-legal purposes on behalf of the defendant (DCB 1). He saw the plaintiff for medico- legal purposes on 27 October 2008. Mr Dooley opined:
“The mechanism of the motor vehicle accident would be consistent with Mrs Lozanovski sustaining an impact injury to the left knee and left leg. She has probably sustained some superficial damage to the patello-femoral joint. She had significant bruising of the upper leg after the accident. She has some residual pain in relation to the soft tissue bruising. Basically this is a post- traumatic symptom for which there is no particular treatment. There is no evidence of meniscal or ligamentous damage to the left knee. Mrs Lozanovski has a good range of motion of the left ankle and hind foot region. Again she notes some pain in this area secondary to soft tissue bruising.”
40 Mr Dooley noted in his first report that the plaintiff presented as a sensible and genuine historian and he did not believe that she was exaggerating her symptoms in any way.
Ongoing problems
41 As I have indicated earlier, in her affidavit of 22 September 2008 the plaintiff gives evidence of ongoing problems associated with the injuries that she sustained in the accident and she gave further evidence before me about those matters. In a further affidavit sworn on 5 August 2009, by way of updating the material, the plaintiff swore in paragraph 18:
“As regards my domestic activities, I continue to suffer many significant restrictions. I cannot kneel and this restricts my ability to undertaking dusting and cleaning tasks around the house. I am heavily reliant upon my husband to attend to the performance of such tasks. I also used to enjoy walking at night for exercise but am no longer able to participate in that activity. I used to enjoy cooking but find that the periods of standings involved cause me to suffer increased symptoms. By and large I am restricted in any activity requiring undue strain to be placed upon the injured parts of my body and in particular the injuries which I have suffered affecting the function of my left leg.”
42 She went on to say in paragraph 19 that the problems with her legs “are constant in nature”. She said that she has to be careful in undertaking activities not to overly exert herself. She finds that swimming assists with the reduction in the symptoms and she also has massage on a weekly basis to relieve her symptoms. She takes a variety of medications, including Panadeine and Panadol, for partial relief.
43 The plaintiff filed an affidavit of David Addicoat sworn 15 September 2009 (PCB 28(a)). David Addicoat is a fellow work employee of the plaintiff. Objection was taken to the affidavit on the basis that it was late filed and contains opinions. I accepted the affidavit into evidence after Mr Middleton advised me that the defendant was not prejudiced by its filing. He indicated, however, that he objected to the opinion evidence given in the affidavit. I have taken the affidavit into account but placed little weight on the opinion. Mr Addicoat gives evidence of the change in the plaintiff from the time of the occurrence of the accident and sustaining injury. Inter alia he says:
“I have noticed since the accident that she often complains of leg pain and physically struggles to cope with the work and demonstrates signs of discomfort and pain. She has become less enthusiastic about work and is not as cheerful as she was prior to her motor vehicle accident.”
Assessment of the plaintiff
44 As I indicated in argument my impression of the plaintiff was that she was a very credible witness and I did not get the impression that she was overstating the effects upon her of the injuries that she sustained in the accident. If anything, I thought that she was understating her position. She struck me as being quite a stoic person, as is evidenced by the fact that she has long since returned to employment, albeit in a better position. As well as being a mother of three she works eight hours a day five days a week and occasionally overtime.
45 Mr Middleton referred me to the decision in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292. He argued that the fact that the plaintiff has returned to full time work shows that she has not suffered a serious injury. In Sumbul, Chernov JA (with whom Nettle and Redlich JJA agreed ) said at paragraph 24:
“If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are “at least very considerable.” In my view, there was no such evidence before her Honour.”
46 However, what Chernov JA said in Sumbul was considered recently in Stijepic v. One Force Group Aust Pty Ltd [2009] VSCA 181. In that case the Court said at paragraph 47, inter alia:
“So far as the respondent’s final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”
47 As in Stijepic, in this case the plaintiff’s resumption of alternative duties on a full time basis has played but a small part in my conclusion that the pain and suffering consequences of her injuries do not satisfy the statutory test in section 93(17) of the Act.
48 Mr Middleton further argues that the injury has not been precisely enough defined by the plaintiff. He contends that where the plaintiff’s case is that there was an injury to the left lower leg below the knee, together with an injury to the left ankle and plantar fasciitis, that the plaintiff cannot aggregate the plantar fasciitis and the injury in the area of the left ankle to the soft tissue injury to the left leg below the knee. He relies upon the judgment of Chernov JA in Lu v Mediterranean Shoes Pty Ltd & Ors (2000) 1 VR 511.
49 In paragraph 23 in Lu Chernov JA said:
“In my view, the short answer to Mr Bingeman's principal submission is that the two injuries in question impaired two separate body functions, namely, the plaintiff's right shoulder area and his right elbow respectively. Consequently, they cannot be relevantly aggregated. The mere fact that those injuries had, in one sense, an effect on the movement of his right arm does not mean that the arm was the relevant body function. A body function that is indirectly, albeit detrimentally, affected by two separate injuries to two body functions, is ordinarily not thereby relevantly impaired by those injuries for the purpose of s135A(19)(a). Thus, an injury to the big toe of one foot and a later injury to the knee of the same leg may have a detrimental effect on the use of that leg, but ordinarily, it would be inaccurate to describe the two injuries as having impaired the one body function, namely, the leg. In case I am wrong in my conclusion on this matter, I shall proceed to analyse Mr Bingeman's primary case on the footing that the two separate injuries impaired the one body function, namely, the plaintiff's right arm.”
50 Here the case is squarely put that the injury giving rise to the permanent impairment is the injury to the left leg below the knee. Applying the law as stated in Lu, in my judgment I cannot combine the soft tissue injury to the ankle and the condition of plantar fasciitis beneath the foot in the plaintiff’s heel area with the soft tissue injury to her left leg below the knee. Were I to do that, in my view I would be infringing the principle stated by the Court in Lu.
51 However, even if I am wrong in that assessment, having given this matter considerable thought, it seems clear to me that, whilst the plaintiff suffered a number of soft tissue injuries in the accident, she is left with some ongoing pain and discomfort in her left lower leg area. The doctors have been unable to define that injury with precision beyond saying that she suffers from soft tissue injury in that area.
52 The plaintiff treats the pain from her left leg conservatively and takes Panadol or Panadeine when required. She has been able to return to work and has been able to return to most of her family duties.
53 Having regard to what the plaintiff has said in her affidavit in support of her application and in evidence before me, it is clear to me that the pain and suffering from which she continues to suffer is best described as pain in the sense of amounting to discomfort but it does not, in my judgment, constitute pain that could be described as “at least very considerable” and it could not be described as being more than significant or marked. The plaintiff is clearly inconvenienced by the level of pain but it is managed.
54 Accordingly, whilst I am of the view that whilst the plaintiff does continue to suffer from an injury sustained by her in the accident, the soft tissue injury to the left lower leg below the knee does not amount to a “serious injury” within the meaning set out in the Act.
55 In these circumstances the plaintiff’s application for a certificate from the Court to issue proceedings seeking damages for pain and suffering pursuant to s.93(4)(d) is refused.
56 I will hear the parties on the question of costs.
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