Nisi v Pro Repair Pty Ltd

[2011] VCC 1497

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-03849

COSIMO NISI	Plaintiff
v
PRO REPAIR PTY LTD	First Defendant
and
WORKSAFE VICTORIA	Second Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	20 and 21 September 2011
DATE OF JUDGMENT:	17 October 2011
CASE MAY BE CITED AS:	Nisi v Pro Repair Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2011] VCC 1497

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – serious Injury application in respect of pain and suffering consequences associated with injury to the left arm – findings as to credit and relevance of both non-organic presentation.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C W R Harrison SC with	Nowicki Carbone & Co
Mr M J Ruddle
For the Defendants	Mr A W Middleton	Wisewould Mahony
HIS HONOUR:

1          In this application, the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering consequences of an injury suffered by him in the course of his employment with the first defendant. The injury is described in the plaintiff’s particulars of injury as an injury to the left arm and hand involving scarring to the left arm and hand. It is clear from the evidence relied upon by the plaintiff in this application however that the injury involves no aspect of disfigurement and the application turns upon whether I am satisfied that the impairment of function of the plaintiff’s left arm and hand associated with the injury is such that it constitutes a serious injury within the meaning of the provisions of the Accident Compensation Act 1985 as amended.

2          In the proceeding, the plaintiff relies upon two affidavits sworn 12 February 2010 and 15 September 2011 respectively. In addition, the plaintiff gave viva voce evidence in the proceeding and was cross-examined. The defendants rely upon affidavits by Filipe Rodrigues and Steven Michaelides, the former being a co-worker of the plaintiff when he was employed by the first defendant and the latter being a co-owner of the first defendant company. Otherwise the parties rely upon medical records and other material tendered by them.

The Plaintiff’s Affidavit Evidence

3          In his first affidavit, the plaintiff deposed that he was then fifty-nine years of age and that he had worked for the most part of his adult life as a motor mechanic. He said that on 10 December 2004 he suffered an injury to his left arm, wrist and hand whilst working upon the transmission of a car. He said that whilst the initial injury involved a cut to his hand, within days of sustaining the injury his hand began to swell with the result that he presented to the Western General Hospital in Footscray where an infection of the wound to his left hand was diagnosed.

4          The plaintiff said that he continued to work for the first defendant until 21 December 2004. Three days later he underwent surgery for the purpose of repairing the extensor tendon in his left hand. He said that following this surgery, he was unfit to undertake any work duties until 25 May 2005.

5          The plaintiff deposed that following his surgery, by reason of the presence of continuing symptoms of “pins and needles” which radiated between the fingers of his left hand to his shoulder, he was diagnosed as suffering from left carpal tunnel syndrome in respect of which he underwent a carpal tunnel release on 18 July 2006. The plaintiff said that notwithstanding the surgery he had undergone he had continued to suffer from the following symptoms and impairments:

• constant “pins and needles” in his left fingers which travel to his left forearm and left shoulder;

• a tendency in his left hand to lock up;

• restricted movement in the fingers of his left hand;

• pain aggravated by lifting of heavy objects;

• pain radiating from his left hand to his shoulder which affected his ability to sleep and to sleep on his left side;

• the presence of a burning sensation along the inside and outside of his left wrist, which radiated to his shoulder.

6          The plaintiff said that his symptoms were such that they limited him to driving an automatic vehicle equipped with power steering; reduced his ability to undertake forceful activity involving his left hand; restricted him in his work as a mechanic by limiting his ability to undertake tasks which involved heavy lifting and the use of force to tighten and loosen nuts and bolts; and imposed limitations upon his ability to undertake domestic tasks and activities around the house.

7          The plaintiff said that whilst he had returned to work with the first defendant for a short period between April 2005 and July 2005, following his carpal tunnel surgery (which was performed on 18 July 2006), he had, on 31 August 2006, commenced working with his current employer, Metro Panels where he undertook “modified duties”. He said that in this regard, whilst he was employed on a full time basis:

“I do not have the same level of independence in carrying out my daily work duties …I am concerned about my level of financial earnings in the future given the work injuries that I have sustained, my lack of complete independence and functionality in the role, and the risk of any possible aggravation or recurrence of the injury.

8          In his further affidavit of 15 September 2011, the plaintiff said that he continued to suffer from pain and restriction of movement in his left arm, wrist and left hand as previously described him; that he felt that his physical condition had progressively worsened over time; that there were times when his pain was such that he was required to take “Panadol, Nurofen or Panadeine Forte” to manage his symptoms; that he no longer sought medical treatment as he believed his medical options had been exhausted; that his symptoms were such that they caused him to wake three or four times a night with symptoms of “pins and needles” and/or pain; and that on occasions he was required to wear a brace to assist him in the management of his symptoms.

The Plaintiff’s viva voce Evidence

9          In the course of evidence-in-chief, the plaintiff demonstrated the movement which was present in his left hand which revealed that his capacity to flex and extend his fingers was markedly restricted. When asked to make a fist, the plaintiff was unable to curl his fingers and I accept the description of Counsel for the defendants that the plaintiff’s capacity to make a fist was limited to about one half of the expected range of movement. I also accept that the plaintiff’s range of movement was consistent with the evidence given by him that his restriction of movement was such that whilst he may be able to hold a tennis ball within his closed fist, he would be unable to close his hand sufficiently to hold a golf ball.

10        The plaintiff said that he made use of Panadeine Forte which he consumed at the rate of one packet every one and a half weeks. He said that he supplemented his use of Panadeine Forte with the use of Panadol and Nurofen and that he obtained his supplies of Panadeine Forte from his mother-in-law or his mother.

11        In cross-examination, the plaintiff said:

• that he had not provided a history to Dr T Tadros that he had struck his hand against the wall;

• that upon his return to work, and since that time, he had not been certified as being limited to the performance of restricted or light duties;

• that his duties in his present employment with Pro Repairs were similar to those which he undertook with Metro Panels and that in both jobs he had, since occasioning his injury, avoided heavy lifting and had been restricted in his ability to loosen and tighten bolts;

• that he could lift items in his left hand of a weight greater than two kilograms;

• that he had been required to give up skiing and jet ski riding by reason of his injury and that he had not said otherwise to any medical practitioner who had examined him;

• that he accepted the material contained in the affidavit of Mr Rodrigues;

• that he had discontinued the hand therapy suggested by Mr Baldwyn because it was not making any difference to his condition;

• that he had lost the ability to make a full fist and had not been able to do so in the course of his examination by Mr Blombery;

• that he sometimes lifted bags with his left hand and that he sometimes employed his right hand instead of his left hand when he had the opportunity to lift things with either hand.

The Affidavit Evidence Relied upon by the Defendants

12        In an affidavit dated 22 July 2010, Mr Filipe Rodrigues states that following his injury, the plaintiff was able to work alone and repair transmission pumps and that he appeared to move freely and without restriction. He said that in July 2010, the plaintiff had brought a vehicle into the first defendant’s premises for a roadworthy inspection and that in doing so he was able to manually set the support pads of a hoist without assistance.

13        In an affidavit dated 9 August 2010, Mr Steven Michaelides states that following his injury, whilst the plaintiff had commented on arm problems, he appeared to work normally and did not seem to be restricted.

The issues

14        In this application, it is put on behalf of the defendant:

(i)	that the plaintiff now presents with symptoms of both organic and non- organic aetiology and that the medical evidence is such that the plaintiff has not made out his onus to establish the nature and extent of the organic consequences associated with his injury;
(ii)	that the consequences of the plaintiff’s injury are such that even if they are to be assessed on the high point of the evidence most favourable to the plaintiff, they do not satisfy the criteria established by the Act with respect to serious injury.

15        There is, however, no issue in the proceeding that the plaintiff has suffered a compensable injury or that the consequences of the compensable injury were such that:

• the plaintiff developed an infection associated with the injury;

• the plaintiff was required to undergo both an extensor tendon repair and carpal tunnel release surgery in order to treat the symptoms which arose by reason of his compensable injury.

The Medical Evidence relied upon by the Plaintiff

16        In a report dated 23 August 2011, Dr N Tadros, the plaintiff’s treating general practitioner, reports:

• that the plaintiff presented to his practice on 11 December 2004 with a small superficial laceration on the dorsal aspect of the base of his left middle finger;

• that on 21 December 2004, the plaintiff was seen by another doctor at his practice reporting that he had knocked his hand against a wall and flared up his injury as the result of which the plaintiff was referred to the Western General Hospital where he underwent a repair of the extensor tendon of his left hand on 24 December 2004;

• that the plaintiff subsequently attended in March 2005 with symptoms of numbness in his left arm and was referred to Mr Chris Hoare, who diagnosed the presence of mild reflex sympathetic dystrophy.

17        In a report dated 21 November 2006, Dr Mark Balwyn reported that the plaintiff presented to him in April 2006 with symptoms of:

“1.	Median Nerve Compression
2.	CRPS type 1”

18        Dr Balwyn reported that upon nerve conduction studies confirming the diagnosis of mild left carpal tunnel syndrome, and the plaintiff being advised that there was the risk he would be no better or worse if his CRPS flared up, in association with the surgery which was required to treat his carpal tunnel syndrome; the plaintiff elected to proceed with the surgery which was undertaken on 18 July 2006.

19        Following the surgery, Dr Balwyn reported that the plaintiff reported some improvement in his nocturnal symptoms but that he felt that he had achieved little, if any, improvement in his condition overall.

20        In the further report dated 13 March 2007, Dr Balwyn commented that the plaintiff was presenting with “pins and needles” affecting his entire arm such as to cause him to wake at night with pain and weakness in his hand and arm. He commented:

“On examination he has globally decreased the strength in his left arm, although I am not sure how hard he was trying. His reflexes seem normal to me and he has no dermatomal distribution of his subjective sensory symptoms. I am at a loss as to what could be causing this … it does not really fit well with CRPS.”

21        In a further report dated 19 February 2008, Dr Balwyn commented that the plaintiff continued to complain of severe pain; that he had discontinued attending hand therapy and that there was no treatment that could be offered to the plaintiff unless he decided to commit to a hand therapy regime.

22        In a report dated 14 September 2011, Mr McCombe, a hand, plastic and reconstructive surgeon, reports that he examined the plaintiff at the referral of his general practitioner on 17 September 2010, at which time:

(i)	the plaintiff’s grip strength was assessed as being 10 kilograms on the left and 48 kilograms on the right;
(ii)	nerve conduction studies demonstrated changes consistent with a mild carpal tunnel syndrome;
(iii)	“the plaintiff’s diagnosis at this time “was presumed to be chronic pain syndrome”;
(iv)	the plaintiff’s symptoms stemmed from his original work related injury;
(v)	the plaintiff was unfit for his pre-injury employment but was fit for restricted duties which did not require forceful or repetitive gripping or the operation of heavy machinery;
(iv)	the plaintiff’s symptoms were such that his activities of daily living, including social, recreational and domestic duties would be limited “because of his pain and restriction of capacity for the significant use of his left hand”.

23        In a report dated 3 December 2010, Mr Russell Miller, an orthopaedic surgeon, opined that the plaintiff had suffered an injury which was complicated by infection; a tendon injury requiring reconstructive surgery; and the development of carpal tunnel syndrome necessitating a carpal tunnel release. In addition, Mr Miller opined that the plaintiff had developed a mild form of reflex sympathetic dystrophy in respect of which the prognosis was only fair.

24        In a report dated 19 May 2011, Dr Peter Blombery opined that the plaintiff presented with a pain syndrome involving sensitisation of pain nerve pathways. Significantly, and at variance with the plaintiff’s evidence on this issue, on examining the plaintiff Dr Blombery found that he was able to make a full fist. Dr. Blombery opined that the plaintiff’s disability was physical in nature; that there was no major psychological enhancement of his symptoms; that the plaintiff’s injuries were caused by the accident of 10 September 2004; and that the plaintiff’s future treatment options would essentially involve supportive use of painkilling medication as required.

The Medical Evidence Relied upon by the Defendants

25        In a report dated 3 July 2009, Mr Anthony Buzzard expressed the opinion that the plaintiff’s presentation of symptoms of pain within “the whole of the left upper extremity” could not be explained on physical grounds and accordingly that the plaintiff’s presentation was functional.

26        Mr Damien Ireland, a hand surgeon, has provided a series of reports dated 6 May 2010, 28 July 2010, 7 September 2011 and 14 September 2011.

27        On 6 May 2010, Mr Ireland described the plaintiff as being “an honest recorder of the facts with no tendency to exaggerate his symptoms”. He recorded the plaintiff’s grip strength on the right hand as 42 kilograms compared with 23 kilograms on the left hand, commenting that his testing was undertaken to ensure that this represented a true effort; and opined that the plaintiff did not present with a functional component or a tendency to exaggerate or embellish his symptoms.

28        In a report dated 28 July 2010, Mr Ireland was presented with the results of a CT scan report dated 30 May 2007, the results of nerve conduction studies undertaken on 8 January 2008, and an unsigned letter from Dr Mark Balwyn dated 19 February 2008, and opined that he wished to re-assess the plaintiff with a view to establishing a definitive diagnosis.

29        Mr Ireland re-assessed the plaintiff on 7 September 2011 at which time he opined that the plaintiff presented with subjective neurological symptoms affecting his left upper limb which were not matched by corresponding objective physical findings. When he was asked to comment whether the plaintiff presented with any “functional component or psychological reaction to his physical condition”, Mr Ireland opined:

“As stated above, the severity of the subjective symptoms of which the patient complains are not matched by corresponding objective physical findings. Notwithstanding this, I have no reason to doubt that Mr Nisi suffers from the symptoms of which he complains.

…
I am unaware of any ‘adverse psychological reaction’ to his injury.”

30        In a further report dated 14 September 2007, which was prepared after Mr Ireland had been provided with the reports to which I have previously referred by Mr Russell Miller dated 3 December 2010 and Dr Peter Blombery dated 19 May 2011, Mr Ireland concurred with the diagnosis of Dr Blombery that the plaintiff presented with a chronic pain syndrome and disagreed with the opinion expressed by Mr Miller that the plaintiff presented with “mild complex regional pain syndrome”.

31        In a report dated 24 August 2011, Mr Murray Stapleton, a plastic and hand surgeon, opined that the plaintiff presented with a complex regional pain syndrome which was not severe and that there was no evidence of any functional or psychological reaction in the plaintiff’s presentation.

32        In a further report dated 14 September 2011, Mr Stapleton noted that both Mr Balwyn and Mr Ireland had not found evidence of the presence of a complex regional pain syndrome and commented:

“I would point out that the term ‘complex regional pain syndrome’ or ‘regional pain syndrome’ or any other syndrome that involves pain, should be regarded, in this instance, as really only a name.”

33        Mr Stapleton accepted that the plaintiff’s presentation to him was:

“… not sufficient to have an acceptable diagnosis of complex regional

pain syndrome so far as the AMA Guides is concerned.”

and opined that the plaintiff would:

“quickly recover … for he is improving with time. I believe therefore that

the prognosis for this gentleman is excellent.”

34        Mr Stapleton was asked to comment upon the reports of Mr Russell Miller and Mr Peter Blombery and observed; that there was a difficulty in assigning a name to the plaintiff’s problem; that he held the view that the plaintiff presented, for want of a better term, with “complex regional pain syndrome;” and that he disagreed with Mr Miller’s opinion that the plaintiff’s prognosis was not good, taking the view that the plaintiff’s symptoms would eventually settle.

Finding as to whether the Plaintiff presents with a Condition in respect of which the aetiology is Physical or Functional

35        I am satisfied on the balance of probabilities that the plaintiff presents with a physical rather than functional condition. In my opinion, the preponderance of the medical opinion supports that contention for the following reasons:

(i)	Whilst Mr Stapleton accepts that the name given to the condition with which the plaintiff presents may vary, I interpret his statement that the plaintiff did not present with a functional or psychological reaction, as supporting the position that the plaintiff’s symptoms are organic in origin;
(ii)	Mr Peter Blombery unequivocally expressed the opinion that the plaintiff’s disability was physical in nature and there was no major psychological enhancement occurring with respect to this symptomology or signs.
(iii)	Mr Damien Ireland, in his report dated 14 September 2011, concurred with the diagnosis of Dr Blombery. In his earlier report, dated 7 September 2011, he had opined that the plaintiff did not present with “adverse psychological reaction to his injury” and I interpret the combination of these two statements made by Mr Ireland in his reports of 7 September 2011 and 14 September 2011 as expressing an unequivocal view that the plaintiff presented with an organic condition.
(iv)	Whilst in his report, Mr McCombe does not comment specifically as to whether the plaintiff’s condition is organic or functional, his comments that the plaintiff’s symptoms stem from his original work related injury in the form of an original laceration to the left hand which was complicated by the development of carpal tunnel syndrome and a chronic pain syndrome; suggest in my opinion that the plaintiff’s symptoms were organic in origin.

I note in this regard that Mr McCombe had referred the plaintiff for a second opinion to Mr Anthony Berger, a hand surgeon. Mr Berger opined that whilst the plaintiff complained of significant pain and sensory changes in his upper limb and that he was unable to detect any abnormalities in the upper limb and expressed the opinion that “pain management and Lyrica is probably going to be the best option at this stage”.

I consider it unlikely that Mr Berger would not have suggested the prescription of Lyrica, a medication employed in treatment of nerve and fibromyalgic pain, in circumstances in which he was of the opinion that the plaintiff was presenting with a functional and non-organically based condition.

(v)     In his report, Mr Miller does not specifically comment upon whether the plaintiff’s presentation includes any non-organic features; the tenor of his report in my opinion however, indicates that he considered the plaintiff’s presentation to be organically based, there being no suggestion in his report that the plaintiff presented in a manner inconsistent with the existence of an organic cause for his symptoms.

(vi)   While Mr Balwyn originally diagnosed the plaintiff as presenting with chronic regional pain syndrome and subsequently commented that the plaintiff’s presentation by March 2007 did not really fit well with that diagnosis, I regard his reports as to whether the plaintiff presents with an organic or functional condition as being equivocal and as providing no assistance one way to my determination of this issue.

(vii)  Although Mr Buzzard unequivocally expresses the opinion that the plaintiff presents with a functional condition, he is the only medical expert to express this opinion and for this reason I do not find his opinion upon this issue to be persuasive.

The Plaintiff’s Reliability as a Witness

36        The defendants point to:

• inconsistent histories which appear in the various medical reports as to whether the plaintiff has or has not been forced to abandon skiing by reason of his injury and further;

• the fact that whilst Dr Tadros reported that the plaintiff had presented to a medical practitioner at his practice with the history of having aggravated his injury when he knocked his hand against a wall, which the plaintiff in the course of his viva voce evidence had denied;

• the inconsistency in the plaintiff’s documented grip strength and his evidence as to his capacity to form a fist when considered in the context of the findings of Dr Blombery;

as suggesting that the plaintiff was inclined to exaggerate his symptoms.

37        I note, however, that none of the doctors have opined that the plaintiff was inconsistent in his presentation to them, and when account is taken of this fact and of the fact that the plaintiff has continued to engage in employment which involves ambidextrous manual activity in circumstances in which I am satisfied he presents with organic symptoms of pain, I do not accept the submission on behalf of the defendants that the plaintiff’s evidence generally as to the nature and extent of his symptoms was not persuasive or should not be accepted.

38        That is not to say, however, that I am satisfied that I should accept all of the plaintiff’s evidence. In this regard:

• I do not find the plaintiff’s evidence that he has required to have recourse to significant amounts of prescription-strength painkilling medication in the form of Panadeine Forte, to be persuasive. When account is taken of the fact that the plaintiff provided Mr Russell Miller with the history that he managed his condition by the use of “Panadol and Nurofen”; that he provided a similar history to Dr Blombery; that he told Mr Stapleton that he employed Panadol as required; and that only Dr Ireland obtained a history that the plaintiff made use of Panadeine Forte; and that the plaintiff, notwithstanding his evidence that he was required to employ Panadeine Forte regularly, has never obtained a prescription for that medication; I am not satisfied that the plaintiff’s evidence on this issue should be accepted.

• Further, whilst the plaintiff gave evidence that the level to which the movement of his hand and fingers was restricted varied, he was adamant that he had lost the ability to make a fist. Having regard to the finding by Mr Blombery that the plaintiff was able to make a full fist at the time at which he examined the plaintiff, I am not persuaded that I should accept the plaintiff’s evidence on this issue.

39        Other than for these matters, however, the plaintiff struck me as being an honest and largely reliable historian. He readily conceded that he was able to lift items of greater than 2 kilograms and that he did not necessarily avoid the use of his left hand to lift items, even when his right hand was free. Equally, he did not, in my opinion, attempt to exaggerate the effect which the condition in his left hand had upon his capacity to work as a mechanic. The candid nature of the way in which the plaintiff gave evidence is further demonstrated by his ready acceptance of the content of the affidavit of Mr Rodrigues without qualification.

The Video Evidence

40        In the course of the trial, the plaintiff was taken to video evidence. Having regard to the evidence given by the plaintiff before the video evidence was shown as to the activities which he could carry out with his left hand, I am not satisfied that the video footage relied upon by the defendants depicted the plaintiff engaging in any activity or use of his left hand which was inconsistent with the evidence given by the plaintiff as to his capacities in this regard. I accept, however, that the video evidence did not suggest, during the limited period of the depicted observations of the plaintiff, that he avoided the use of his hand or that any disability in the plaintiff’s hand was readily noticeable.

Findings as to the Extent of the Plaintiff’s Impairment

41        In deciding the issue which arises in this case, namely; whether the plaintiff’s pain and suffering consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than significant or marked and as being at least very considerable, I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury has occasioned to him and determine where the facts of this case sit in the broad spectrum of cases. Whilst I am guided in my approach to the analysis of the particular circumstances of this case by the statements of the Court of Appeal in both

Haden Engineering Pty Ltd V Mc Kinnon[1] and Sutton v Laminex Group Pty

Ltd;[2] the task which I am required to undertake remains “a value judgment, in which matters of fact and degree, and of impression, are operative,”[3] and one in which I am required to take into account – “not only what symptoms there

are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to

some extent, by what is retained.”[4]

[1] [2010] VSCA 69

[2] [2011] VSCA 52

[3]            Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181

[4]             Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260

42        As indicated previously, I generally accept the evidence given by the plaintiff as to the extent of his disability and the effect of the condition, which I have found to be an organic condition, which is present in his left arm and hand, upon his life and lifestyle.

43        The general body of medical opinion expressed in the matter supports the proposition that the plaintiff’s condition is largely stabilised. I am satisfied that this is so, notwithstanding the opinion expressed by Mr Stapleton to the contrary.

44        In assessing the degree of the plaintiff’s disability and the impact of his symptoms upon his life and lifestyle:

• I find it of considerable significance that the plaintiff has since his return to work never been certified as being limited in the duties he is capable of performing; that independently of his employment with the first defendant he has been able to find and maintain employment as a motor mechanic; and that notwithstanding the presence of some restrictions in the duties he performs he is capable of undertaking the work required of him which must involve a high degree of ambidextrous activity.

• Further, the fact that the plaintiff is able to manage his symptoms; which must be tested by the manual nature of his employment; without recourse to regular prescription-strength medication, suggests that the plaintiff suffers from levels of pain at the moderate rather than extreme end of the spectrum. This in turn is consistent with the opinion expressed by Mr Miller that the plaintiff’s pain syndrome is appropriately described as moderate rather than severe.

45        Whilst I accept the plaintiff’s evidence that his symptoms have had an adverse impact upon his sleep, his evidence in this regard suggests the presence of an impact of moderate severity in that, whilst the plaintiff’s evidence is that his symptoms are such that they wake him during the night, there is no evidence that the plaintiff’s symptoms cause him to spend long periods awake or prevent him returning to sleep.

46        Whilst I accept that the plaintiff has lost the ability to perform activities which require the application of strength via his left hand, I am satisfied that the fact that the plaintiff’s injury has been sustained to his non-dominant hand is a factor which would tend to ameliorate the effect of this aspect of his injury upon his life and lifestyle.

47        In my opinion, the plaintiff’s level of incapacity associated with his injury falls at the very borderline of that which could be appropriately categorised as being serious within the meaning of that term as employed in the Act when judged by comparison with other cases in the range of possible impairments or losses of a body function. When account is taken of all the findings which I have made as to the consequences of the plaintiff’s injury to him; whilst I am satisfied that it is appropriate to describe the plaintiff’s incapacity associated with his injury as being significant or marked or considerable; I am not satisfied that it is appropriately described as being more than significant or marked and being at least very considerable.

48        For these reasons, I am not satisfied that the plaintiff’s impairment meets the high threshold established by the provisions of the Act.

49        Accordingly, I am not satisfied that the plaintiff has established that he is entitled to leave which he seeks in this application.

50        I will hear the parties as to the orders which should be made as the result of my findings and also as to costs.

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