Miller v TAC

[2014] VCC 1617

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
(Not) Restricted
Suitable for Publication

DAMAGES LIST
SERIOUS INJURY DIVISION

Case No. CI-13-01604

GAIL MILLER	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

---

JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2014
DATE OF JUDGMENT:	1 October 2014
CASE MAY BE CITED AS:	Miller v TAC
MEDIUM NEUTRAL CITATION:	[2014] VCC 1617

REASONS FOR JUDGMENT
---

Subject:  Accident Compensation – Transport Accident

Catchwords:             Hand injury – effect on ability to perform work duties – potential earning capacity – pain and suffering  –  pecuniary disadvantage.

Legislation Cited:     Transport Accident Act 1986
Cases Cited:            
Judgment:                 Application for leave to proceed dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B.W. Collis QC with Mr A. Ingram	Melbourne Injury Lawyers Pty Ltd
For the Defendant	Mr P. Rattray QC with Mr D. Myers	Solicitor to Transport Accident Commission

HER HONOUR:

1 Gail Miller brings this application under s93 of the Transport Accident Act 1986 (“the Act”).

2       On 8 June 2006, Gail Miller was waiting to catch a tram in St Kilda Road to go to the Arts Centre.  The tram was heading towards the city. It approached the tram stop and stopped and opened its doors.  Ms Miller, who was holding her baby son in a capsule, leaned into the front doorway to ask the driver whether the tram was proceeding up St Kilda Road or was going to travel into Commercial Road.  The doorway of the tram suddenly closed, catching both her right and left hands and more particularly crushing her left hand (“the transport accident”). 

3       The door subsequently reopened and Ms Miller reported her injury to the tram driver.  She boarded the tram and travelled to the Arts Centre.  Her left hand swelled and so she then attended at The Royal Melbourne Hospital for assessment and treatment.  She was given some painkilling medication.

4       On the following day, she re-attended at The Royal Melbourne Hospital where a temporary splint was applied to her left finger and an x‑ray of the left finger was performed that demonstrated an evulsion fracture at the dorsal aspect of the base of the distal phalanx with approximately 2mm separation.  This is consistent with a mallet deformity (“the injury”).[1] 

[1]Plaintiff’s Court Book (‘PCB”) 23

5       Eventually she was referred to Mr Nigel Mann, a Plastic and Reconstructive Surgeon, who saw her on 27 June 2006 for treatment.  Later he undertook an open reduction of the fracture and returned the bones to normal position.  They were held in place with a K-wire pin.[2]  The wires were removed some six weeks later.

[2]PCB 45

6       Following surgery, the Plaintiff regained virtually no movement in the joint of her left index finger due to scarring and degeneration of the joint.[3]

[3]PCB 45

7       Ms Miller is right hand dominant. She is a dentist. She has maintained that her injury has significantly limited her practice as a dentist. In particular, that her  employment has been limited to the less lucrative public sector. 

8       Ms Miller has been a long term patient as the Ascot Vale Health Group.  Dr Skeahan, a general practitioner from that group, referred her to Mr Anthony Berger, Hand Surgeon, for a second opinion concerning her stiff index finger.

9       Mr Berger saw her on 22 January 2008. He arranged an x‑ray of the left index finger.  That revealed narrowing of the distal interphalangeal joint (“DIP”) joint and there appeared to be partial bony ankylosis.[4] 

[4]PCB 76

10      He reported that she had a stiff index finger which had arthrodosed itself in quite a useful position.  He did not consider any surgical options were available that would allow for restoration of movement.[5]

[5]PCB 77

11      On 31 January 2008, Ms Miller re-attended Mr Mann and he agreed that the left index finger had essentially fused and became completely stuck.[6] 

[6]PCB 45

12      Ms Miller was then referred for another opinion to Mr Philip Slattery, Hand Surgeon.  He confirmed she had a stiff DIP joint of the left index finger and required a tendon interposition arthroplasty.[7]

[7]PCB 38

13      On 2 September 2008, he undertook the surgery. He treated the arthrodesis by osteotomy and resected the bone.  Part of the palmaris longus tendon was then inserted into the residual articular defect and volar plate was re-attached.[8]  Post-operatively, Ms Miller regained 20 degrees active flexion of the DIP joint.  Mr Slattery considered she should be able to continue her work as a dentist without undue hindrance.[9]

[8]PCB 39

[9]PCB 39

14      Apart from hand therapy following the two operations, Ms Miller has not had any ongoing treatment.

15      Megan Fitzgerald, Hand Therapist , provided an occupational therapy service plan.  She first saw Ms Miller on 6 July 2006. She managed her condition and provided hand therapy following the two operations. She noted the prognosis was unlikely to change from its current status, which was that of a stiff DIP joint with extension lag and limited flexion.  She confirmed that Ms Miller suffered from daily ache, which was relieved by analgesia, heat and rest.  She postulated she may be more prone to chronic arthritis in the future.[10]

[10]PCB 34

16      Ms Fitzgerald confirmed the injury is stable and stated that it did not require any further treatment or pain management. She noted that Ms Miller continued to experience difficulties with some dental work related to access.  For example, at the back of the mouth where she is unable to bend the index finger sufficiently for positioning or to hold retainers securely.  She can no longer use a pen grip in the left hand.  She recommended that Ms Miller continue to work in an environment where assistance is available and there is opportunity for self-paced work with the ability to minimise repetition.[11]

[11]PCB 35

17      Ms Fitzgerald wrote to Mr Joe Mizzi, Human Resources at Dianella, on 4 November 2009 to confirm from 19 November 2009 that Ms Miller will not have any further work restrictions on her dental practice and that she was ready to return to work from 20 November 2009.[12]

[12]DCB 52

18      Dr Peter Ng, General Practitioner, last saw Ms Miller on 31 November 2011. At that time she reported difficulty, namely, impairment to her ability to perform her duties as a dentist attributable to the left index finger condition. 

19      Ms Miller seeks leave to bring proceedings to recover damages for pain and suffering and loss of earning capacity for injury suffered to her left index finger sustained in a transport accident on 8 June 2006.

20 She relies upon paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act, namely a serious long-term impairment or loss of function of the left hand.

21      It is not in dispute that Ms Miller suffered a compensable injury, namely an intra-articular mallet avulsion fracture of the left index finger[13] as a consequence of the transport accident. What is in issue in this trial is whether the consequences of the impairment to the left hand function following injury satisfies the test for serious injury. 

[13]PCB 44

22      Mr Rattray QC submitted, on behalf of the Defendant, that the application should be refused. Particular care should be given to whether to accept the Plaintiff’s claims about her impairment following injury. Any impairment in respect to her ability to work as a dentist cannot be attributed to the injury. Rather, there are other reasons for her inability to perform as a dentist. What the Plaintiff says are the difficulties she now has were not borne out by what her supervisor Dr Raju says about her work performance. The general consensus of the medical opinion is that her injury has stabilised and that Ms Miller should be able to continue to perform her role as a dentist. 

23      Mr Collis QC submitted the Court ought to be satisfied and grant leave to proceed. He relied on the medical evidence that shows the Plaintiff has been left with a permanent impairment of her left hand and in particular, her left index finger where all specialists agree that the distal joint is effectively fused. The Court ought to accept by reason of her injury she is precluded from the more lucrative private work and she is seriously injured.

24      Ms Miller is aged 58. She is a Fellow of the Royal Australian College of Dental Surgeons.  She has undertaken some post-graduate courses at Latrobe University in Dentistry in 2000 and, in 2001 to 2004, she completed a Law Degree at Latrobe University.  In 2006, she commenced a Master of Public Health which has not been completed. 

25      Ms Miller has worked as a dentist from 1981 onwards and has at times in the past combined private practice with public practice.  She commenced employment at Dianella Community Health Centre (“Dianella”) on 9 November 1988.[14]  Initially she was employed in a part-time capacity, but from around 4 June 2012, became a permanent full-time employee.  The hours were initially 22.5 hours a week, working Monday, Thursday and Friday.  She now works a 38 hour week, working Monday to Friday, and her core hours are 8.30am to 4.46pm.  She performs occasional overtime on Saturdays and an average of 12-16 hours a month.  This commenced in July 2013 due to additional funding being available.[15]

[14]Defendant’s Court Book (“DCB”) 97

[15]DCB 97

26      Ms Miller commenced maternity leave in February 2006 and was due to return around August 2006.  In the interim, the Plaintiff sustained injury on 8 June 2006 in the transport accident.

27      Ms Miller returned to work at Dianella around October 2006, performing her pre-injury duties.  She was advised not to do extractions for two weeks and then she returned to full capacity.[16]

[16]DCB 98

28      Mr Slattery re-examined Ms Miller on 30 January 2014 at the request of her solicitors. On that occasion, Ms Miller said that the left index finger was still causing her significant disability.  She said she had very little movement in it and that she could not use it for activities such as heavy lifting or gardening.

29      From a professional point of view, she said she was now doing general dentistry every day and she could not do certain dental procedures, such as removing impacted wisdom teeth.  She complained she could not use the left hand to retract a flap against bone.  She also added that she could not do rear endodontic work where the finger was required to retract the tongue and depended upon the co-operation of the patient. 

30      Mr Slattery noted on examination that the left index finger scars were well-healed and she had normal sensation to the tip of the finger.  Grip strength on the right side measured 26 kilograms, and on the left 20 kilograms.  Pulp to pulp pinch between the thumb and index finger produced a reading of five kilograms on the right side and one kilogram on the left side.  Movement in the DIP joint was very limited and clinically the joint appeared to be almost ankylosed, that is, fused.  He considered the condition of the left index finger was stable and that she did not require further treatment.[17]

[17]PCB 42

31      He considered her alleged limitations for work to be genuine and considered she would be able to work as a dentist albeit with some limited capacity. 

32      He noted that she reported difficulty with domestic activities such as gardening and heavy lifting and the measured reduced grip strength and pulp pinch strength confirmed this.  She said that the inability to flex the index finger also interfered with activities such as typing on a computer keyboard, and he considered all those difficulties to be compatible with the injury and his observed current status of the finger. 

33      Ms Miller has been examined by Mr Thomas Kossmann, Orthopaedic Surgeon, for medico-legal purposes.  He saw her on 30 July 2013.  At that time, she was complaining of pain in the left index finger, a dull ache, particularly at the end of the day, relieved by pain medication.  She also noted tightness in the left hand which could be relieved by heat and loss of grip strength in the hand.  She confirmed she was not able to hold a retractor and had major difficulties with pen grip.  She also had difficulties with using a keyboard of a computer and often made mistakes.  She complained that she has difficulties with fine movement in the left hand.  She takes painkillers in the form of Panadeine and Tramadol. 

34      On physical examination, he noted the left forearm had no muscle wasting.  On examination of the left hand there was no full grip strength and difficulties in making a fist were noted.  There were no difficulties moving the thumb.  He could not detect any difficulties in the mobility of the left thumb in her metacarpophalangeal joint (“MP joint”) and interphalangeal joint (“IP joint”) joint.  She was also able to abduct the left thumb normally.  In the index finger she has in the MP joint 80 degrees flexion, +15 degrees extension; in the proximal interphalangeal joint (“PIP joint”) 90 degrees flexion and 0 degrees extension.  She has an ankylosed DIP joint of the second index finger in 15 degrees flexion.  He could not detect any irregularities in terms of sensibility.[18]

[18]PCB 49

35      He confirmed the diagnosis as mallet injury at the DIP joint of the index finger on the left side, meanwhile healed with an ankylosed DIP joint and movement restrictions in the left hand/finger. 

36      He noted that she was able to return to work as a dentist and was working full-time.  She was not able to perform certain movements with the left hand.  However, he noted that she seemed to have adapted to her work as a dentist and was able to work in her present capacity at Dianella.[19]

[19]PCB 50

37      He did not consider the Plaintiff’s condition would improve to any significant extent.  No further surgical treatment is recommended and he suggested further ongoing conservative management.[20]  He considers medication and anti-inflammatories will be required in the future.

[20]PCB 50

38      Mr Damian Ireland, Hand Surgeon, reviewed Ms Miller on 21 November 2012 and 25 June 2014 at the request of the Defendant.  When he first saw her she complained of aching in the left index finger occurring two to three times a week, lasting for about two hours.  She was uncertain as to the cause, and the symptom was minimised by warmth and Panadol analgesics, of which she takes two per week.  She complained of diminished movement in the distal joint of the left index finger which caused functional difficulty with her work as a dentist.  The Plaintiff told Mr Ireland she could not gain full access to the mouth when treating patients, and had difficulty using some of the instruments, including the ultrasonic scaler.  She was not able to undertake tasks that require bimanual procedures.  She also claimed difficulty typing due to the symptoms.

39      He diagnosed restricted motion left index finger, following mallet finger fracture distal joint.[21]  The prognosis for further improvement was poor, and no surgical or conservative treatment was indicated. 

[21]DCB 4

40      In respect to the described functional awkwardness with work outlined by Ms Miller, he considered, although he would expect some loss of dexterity, there was no physical explanation to describe the degree of disability which she claimed. He considered with the minor difficulties described she would be able to engage in her normal duties as a dentist.[22]

[22]DCB 5

41      At the subsequent review he noted that she essentially remained the same.  She was now working full-time five days a week, 38 hours per week.  He noted that she was doing keyboarding work in addition to dentistry work, estimated at about 15 per cent of her normal working time. Ms Miller complained of awkwardness with the left hand due to the injury doing keyboard work as well as dentistry work. 

42      He noted on examination a full range of active pain-free motion of all joints of the thumb, middle, ring and little finger.[23]  At the index finger there was minimal atrophy of the distal phalanx but there was no shortening.  There was a mildly uncomfortable minute callosity on the very tip of the pulp (presumably the point of the K‑wire introduction).  There was a barely detectable U‑shaped scar on the dorsum of the index finger, based at the neck of the middle phalanx.  The scar was barely detectable, non-tender, non-hypertrophic, and non-adherent.

[23]DCB 11

43      Active range of motion of the index finger was measured by goniometer.  At the MP joint the range was 20 degrees extension to 90 degrees flexion.  At the PIP joint it measured 0 degrees extension to 100 degrees flexion.  The DIP joint was ankylosed at 15 degrees flexion.[24]

[24]DCB 11

44      He confirmed the diagnosis to be dysfunction of the left index finger following soft tissue and bony injury to the distal phalanx and distal joint, attributable to the transport accident.

45      He considered that the condition has stabilised and that there would be no deterioration.  Conservative treatment was recommended.

46      Dr Paul Kornan, Psychiatrist, examined Ms Miller on 18 November 2013 and considered, from a psychiatric point of view, that she presented with a Major Depressive Disorder and Adjustment Disorder with anxiety and specific anxiety phobias.[25]

[25]PCB 63

47      Dr John King, Psychiatrist, examined the Plaintiff on 30 November 2012 and 20 June 2014, and on the basis of his examination he considered that her condition was stabilised and that she had an Adjustment Disorder with mixed anxiety and depressed mood. 

48      He considered the condition stable, and believed that the psychiatric injury has not affected her capacity to work.  He recommended ongoing psychiatric or psychological counselling to help her to negotiate this very difficult time in her life.[26]

[26]DCB 25

The Plaintiff’s evidence

49      Ms Miller gave evidence and was cross-examined.  No other viva voce evidence was called.  The parties relied on tendered material that has been exhibited.

50      The thrust of the cross-examination was directed to assertions made by the Plaintiff in relation to the effect the injury has had on her ability to perform her professional practice as a dentist and how it limits her to the public sector. 

51      In her affidavit Ms Miller states prior to the injury she continued her professional practice as a dentist in the public health arena, working part-time both at Dianella and Hepburn Community Centre.  She was coming back off maternity leave following the birth of her youngest child and had only completed two or three days of work, with the intention of resuming her normal workload of up to five days per week.[27]

[27]DCB 9 & 10

52      She states that the consequence of her injury is that it has had a very severe impact upon her professional practice.[28] It was her aspiration to pursue private practice in addition to her public work so as to substantially increase her potential financial reward.  She states she is no longer able to pursue private practice because she would be required to inform any practitioner for whom she undertook such work that there are some tasks she cannot perform because of her injury, and therefore that renders the prospect of private work quite bleak.  She emphasised in her evidence the ongoing difficulties that she has in her ability to treat patients because of her left finger condition.

[28]PCB 13

53      I inspected her hand and she demonstrated to me the problems she has gripping a pen and using various implements in her dental work.

54      Ms Miller also attributes the difficulties she had with a patient that led to a complaint that was reported to the Dental Practice Board that ultimately resulted in a VCAT hearing to the injury. She was found to have engaged in conduct that was “unprofessional conduct” and/or was “professional misconduct” within the meaning of the Health Practitioner Regulation National Law (Victoria) Act 2009. As a consequence she was reprimanded for her unprofessional conduct and was required to undertake further education and training as set out in the order dated 26 July 2011.[29]

[29]DCB 171

55      Having regard to the totality of the evidence those assertions about the consequences of the injury cannot be sustained.

56      Following Mr Slattery’s surgery there were returns to work that were unsuccessful.  Ms Miller was employed by Hepburn Health Service between 11 December 2006 to 13 May 2007 on a permanent part-time basis.  Her employment was terminated by notice on 12 April 2007.  There were issues during the course of that employment regarding OH&S infection control and sharps disposal.[30] 

[30]DCB 166

57      Ms Miller was employed on 15 November 2010 by Djerriwarrh Health Service. Her services were terminated on 12 May 2011.  She was terminated in writing on 11 May 2011.[31]  A number of concerns over performance were raised, including concerns about clinical safety, following procedures, time keeping and poor interaction with staff.[32]  Ms Miller sought to challenge her termination but Fair Work Australia found that they had no jurisdiction.

[31]DCB 159

[32]DCB 158

58      Ms Miller was also employed at Banyule Community Health as a dentist part-time, commencing on 3 April 2007. She was terminated on 22 June 2010.[33]  Performance and conduct issues were raised concerning poor punctuality and inappropriate behaviour.  The termination was challenged through Fair Work Australia and the claim of unfair dismissal was not validated.[34]

[33]DCB 131

[34]DCB 124

59      Ms Miller goes into great detail concerning the disability resulting from her injuries in paragraphs 22 and 23 of her first affidavit.[35]

[35]PCB 15 and 16

60      The Defendant relied on the affidavit sworn by Dr Sachidanand Raju dated 17 September 2014 where he adopts a statement that was taken on 3 June 2014.

61      Dr Raju is the general manager of dental services at Dianella. He is responsible for supervising the Plaintiff. He directly supervises her in the performance of her work, and she reports to him directly. 

62      He confirms that Ms Miller is employed as a Level 3E dentist. The holder of this level of qualification is expected to perform a full range of dental procedures including treating patients who are classified as more complex patients.  At Dianella he confirmed Ms Miller performs all of the clinical duties expected of a Level 3E dentist.[36] 

[36]DCB 93

63      He confirmed that she does not presently work on restricted duties and has never done so whilst employed at Dianella.  He is not aware of any physical reason which either prevents or hinders her in the performance of her work.  Ms Miller has never complained to him of pain in her left finger or in either of her hands.[37]

[37]DCB 94

64      Dr Raju has known Ms Miller for quite some time. She first commenced working part-time at Dianella on 9 November 1988.  He notes the nature of her duties are light and the role is more technical sensitive.  Small tools are used on a small area. The more physical work is extractions, where more pressure is required.  The role is repetitive.  A dental assistant is always present during the procedure to assist. 

65      He confirms that she did not struggle with her duties as a dentist following her return to work after the injury. 

66      He confirmed Ms Miller’s duties include examination, scaling, dental fillings, extractions, construction of dentures, taking x‑rays, root canals referral to specialists, cleaning and providing clinical support to oral health therapists.  Ms Miller is required to see twelve to fifteen clients regarding dental care a day.  That is achievable and acceptable in a day’s shift.  He confirmed Dentist Level 3 is the highest clinical dentist.[38]

[38]DCB 99

67      Dr Raju provided a further affidavit sworn 19 September 2014 where he directly deals with the Plaintiff’s assertions concerning the impact of the injury upon her ability to practise dental work. He considers as her longstanding supervising dentist that she would not be impeded in the performance of the more complex procedures she is required to undertake by reason of the impaired movement of the tip of her left index finger.[39] 

[39]DCB 102

68      He confirmed that she routinely performs upper jaw procedures as part of her work and that there are clinic patient records to substantiate this.[40] 

[40]DCB 103

69      He stated that periosteal retractors are an item that are rarely used in the day-to-day dentistry work performed by dentists at Dianella.  In any event, he considers that Ms Miller would not be impeded in the performance of the use of such equipment by reason of the impaired movement of the tip of her left index finger.

70      He says that Ms Miller has never related to him any difficulties she may have, let alone persisting difficulties, and he does not believe she has any difficulties in a physical sense.[41]

[41]DCB 103

71      He confirms that Ms Miller has been employed on a full-time basis for the last 27 months or so and has been treating young and old patients alike.  There is no reason preventing her from treating elderly patients or nor anything that would cause her difficulty in doing so.

72      He confirms she is presently employed as a Level 3E dentist and was given an opportunity in acting in a role as Level 4 for a short period in 2011, but was found unsuitable for this position due to poor interpersonal skills.  The unsuitability for this position he states had nothing to do at all with any impairment to the left index finger.[42]

[42]DCB 104

73      The Plaintiff relied on the affidavit of Clare Knowles, who is a colleague and a qualified dentist.  It became apparent during cross-examination that Ms Knowles is a first year dentist.  She works part-time at Dianella with the Plaintiff.[43]  Ms Knowles states that she is aware that Ms Miller has difficulties in being able to perform root canals because of injury to her left hand and difficulty performing procedures at the back of a patient’s mouth because of the confined space and the requirement that the dentist’s hand and fingers have a particular degree of flexibility.[44]

[43]T 58, L 16-21

[44]PCB 23C

74      Overall, I prefer and accept the evidence of the Plaintiff’s supervisor Dr Raju because of his expertise, his knowledge of the Plaintiff’s work practices, and his observations of the Plaintiff’s ability to work formed over the many years both prior to and following the transport accident.

75      Having considered Dr Raju’s evidence, I am unable to accept Ms Miller’s assertions as being reliable.  I formed the opinion whilst Ms Miller was giving her evidence that she is a somewhat unusual person who is highly intelligent but lacks insight into how her behaviour impacts on others around her. I further find that she has tended to exaggerate the effects of her injury.

76      Therefore, I am not satisfied that the injury to the left index finger has had the significant impact on her professional practice that she alleges or that her ability to be able to work in the private sector has been impacted on because of the injury.  

77      I consider that there are a multitude of issues that impact on the Plaintiff’s employability that do not relate to her injury.  Ms Miller has recently experienced a total of 16 court cases, including proceedings relating to the Dental Board, VCAT, Supreme Court proceedings in relation to her mortgage, bankruptcy proceedings, Fair Work Australia claims, and also, in the past, there is a 10 year history of contentious litigation in the Family Court of Australia relating to the breakdown of her marriage. 

78      Further, the material that was relied upon by the Defendant shows that there were a series of jobs where Ms Miller’s services were terminated following the transport accident, for issues that were completely divorced from her injury. 

79      In those circumstances I reject her assertion that the injury has had a very considerable impact upon her career, her ability to perform private work and her potential earning capacity.

80      Given that I accept the evidence of Dr Raju, that means that I can only accord limited probative weight to the evidence of the medical practitioners who have relied upon the Plaintiff’s descriptions of how her injury impacts on her dental practice. Little credence can be given to the assessments made by them as to the impact of her injury on her capacity for work as a dentist. 

81      Overall, I consider that Ms Miller did consciously exaggerate the symptoms and the problems that she had relating to her injury.  One instance of this that was demonstrated relates to what she asserted in her affidavit sworn 4 September 2014. She said that because of stress associated with the injury and associated reflux problems she developed Barrett’s Syndrome and required endoscopes and other investigations. 

82      It is evident from the cross-examination that this condition was pre-existing.  There is a notation in the progress notes from the Ascot Vale Health Group that she had a history of ulcerative oesophagitis, for which she received treatment prior to the transport accident. 

83      Ms Miller was seen by Dr Peter Unger on 17 November 2000 and the diagnosis of ulcerative oesophagitis was made and she was prescribed Somac tablets.[45]  She continued to be prescribed Somac in 2002, on 21 February and 11 July. 

[45]DCB 27

84      On 22 July 2003, she was diagnosed with Barrett’s Syndrome.[46]  On 8 September 2003, she was treated for ulcerative oesophagitis.[47]  On 25 November 2004, she was referred to NW Endoscopy Services for follow-ups for endoscopy regarding the Barrett’s Syndrome.[48]

[46]DCB 30

[47]DCB 31

[48]DCB 35

Conclusions

85      I find that as a consequence of the transport accident Ms Miller suffered soft tissue and bony injury to the distal phalanx and distal joint of the left index finger. I am satisfied that she suffers permanent minor restriction of movement at the DIP joint of the left index finger and fusion of the distal joint of the left index finger.

86      I accept that she suffers impairment and loss of body function to the left index finger and hand. 

87      I am satisfied that the injury is permanent in the sense that it is not likely to change in the future. 

88      I am not satisfied that the injury and the loss of function of the left finger/hand consequences are at least “very considerable” and more than “significant” or “marked”. That applies to both pain and suffering and pecuniary disadvantage.

89      The application for leave is dismissed.