Nunn v VWA

[2021] VCC 803

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-03041

MICHAEL NUNN	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2021
DATE OF JUDGMENT:	18 June 2021
CASE MAY BE CITED AS:	Nunn v VWA
MEDIUM NEUTRAL CITATION:	[2021] VCC 803

REASONS FOR JUDGMENT
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Subject:Accident compensation

Catchwords:          Serious injury; lower leg injury; scarring; organic consequences

Legislation Cited:         Workplace Injury Rehabilitation and Compensation Act 2013

s325(1)

Cases Cited:   Transport Accident Commission v Garcia [2015] VSCA 225; Peak
  Engineering & Anor v McKenzie [2014] VSCA 67; TTB SMS Pty
  Ltd v Reading [2020] VSCA 203

Judgment:  Application dismissed        

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Brett QC with Mr G. Pierorazio	Arnold Thomas Becker
For the Defendant	Mr P. Rattray QC with Ms L. Burke	Minter Ellison

HIS HONOUR:

Introduction

1Michael Nunn is now aged 67. He is retired. He was employed by the Greater Metropolitan Cemeteries Trust (“the employer”) on 29 September 2016 when he suffered an injury to his left leg.  The injury was sustained when he stepped backwards onto a defective grate while washing his work vehicle in a wash bay.  There is no dispute between the parties that the incident occurred and Mr Nunn suffered an injury.

2In the present application Mr Nunn seeks leave to claim damages in respect of pain and suffering on the basis that the injury to his left leg is a “serious injury” for the purposes of s 325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).  He relies upon paragraphs (a) and (b) of the serious injury definition and identifies the left leg as the body function said to be relevantly lost or impaired for the purposes of paragraph (a).

3Mr Brett QC, who appeared with Mr Pierorazio on behalf of Mr Nunn, indicated that the application would be limited to one in respect of pain and suffering, notwithstanding there had previously been leave sought in respect of pecuniary loss.

4Mr Rattray QC, who appeared with Ms Burke on behalf of the defendant, opposed the grant of leave on the basis that the injury suffered by Mr Nunn fell below the range of cases where it could fairly be described as a serious injury, either in terms of paragraphs (a) or (b) of the statutory definition.

5Mr Nunn was the only witness required for cross-examination.  The parties otherwise tendered material from their respective court books as evidence in the application.

The lay evidence

6Mr Nunn swore two affidavits in support of his application on 27 February 2020 and 22 February 2021.[1]

[1]Exhibit A, pp 5 to 9 & 20 to 22

7In his first affidavit Mr Nunn described his background, noting that he had left school during Year 10 and undertaken an apprenticeship as a printer and worked in that industry for nearly 30 years.  He had then worked for the employer continuously from 1998, and in his most recent position as a monumental mason supervisor since 2014.  He was working full-time in that position.[2]

[2]Exhibit A, pp 5 [4] to 6 [7]

8The first affidavit described the injury as follows:

“Although I was not aware of it at the time, the drain situated in the wash bay was broken in that one of the steel bars making up the grate was missing.  I was washing the car and as I stepped back, my left leg fell in the drain.  It felt like I had been shot in the leg.”[3]

[3]Exhibit A, p 6 [9]

9Mr Nunn described his injury as being a laceration of about eight centimetres across his shin bone and around the outer part of his left leg towards the calf muscle:

“It went through the muscle, maybe down to the bone.”[4]

[4]Exhibit A, p 6 [10]

10Mr Nunn’s first affidavit described the treatment up to that time, which appears to have involved considerable wound management and referrals to an orthopaedic surgeon, a plastic surgeon and a vascular surgeon.  He ceased work in July 2018, approximately one month prior to his 65th birthday.  He states in his affidavit that he had wished to continue working until at least the age of 70.  He described the ongoing symptoms of his injury at that time as follows:

“I continue to suffer from pain in my left lower leg, ankle and top of my left foot.  I experience an electric shock type sensation in the left lower leg, just above the wound site.  My left calf also cramps of a night time.

The injury affects my ability to get a good night’s sleep.  This happens most nights due to my left lower leg pain and I often place a pillow under my left leg.

I have put on some weight since ceasing work due to my relative inactivity, something in the order of a few kilograms.”[5]

[5]Exhibit A, p 7 [20] to [22]

11Mr Nunn’s first affidavit described a number of further recreational activities that were affected.  These included playing golf, attending music performances, watching football and managing a junior football team.  He described further restrictions on his ability to run or being able to swim or go out in a boat.[6]

[6]Exhibit A, p 8 [25] to [33]

12Mr Nunn’s second affidavit essentially updated the consequences flowing from his left leg injury.  In particular he described an incident where his leg had collapsed causing him to fall on a tap cutting his left lower leg.[7]

[7]Exhibit A, p 20 [2] to [3]

13Mr Nunn’s second affidavit referred to difficulties in standing for more than an hour.  He could not continue his football team management as it involved too much standing.  He limited his golf to once per week, whereas he would like to play between two and three times per week.

14He was taking Panadol to help with the symptoms and applying moisturiser daily to his scar and an anti-inflammatory cream on his ankle.  His affidavit described other difficulties with day-to-day activities and noting particular problems with his leg when engaging in activities with some of his nine grandchildren.[8]

[8]Exhibit A, pp 21 [11] to 22 [19]

15When cross-examined I noted the following matters relevant to my determination:

·        Mr Nunn takes over the counter medication, Panadol, probably 10 tablets per week.  He had not been wearing a leg bandage for approximately 12 months:

“It wasn’t doing me no good so it was exactly the same pain whether I had it on or not.”[9]

[9]Transcript (“T”) 5, Line (“L”) 20 to T 6, L 4

·        His recreations including music, golf and reading.[10]

[10]T 6, L 14 to 25

·        He had travelled to New Zealand and to a music festival in Parkes, New South Wales.  He was unsure whether the New Zealand trip was before or after his accident.[11]

[11]T 7, L 3 to 15

·        Mr Nunn could walk for about half an hour at a time, but would then need to rest for five to ten minutes.[12]

·        He plays golf generally once per week.  He does not use a motorised buggy.[13]

·        His current golf handicap was 28.  It had been as low as 22 before the accident.[14]

·        He agreed he did some of the domestic tasks, assisting with vacuuming, washing the dishes, washing clothes, cooking and sweeping, but does not do ironing or bathrooms.  His wife works three days per week part-time.[15]

·        He does not garden as much as he used to.[16]

·        Mr Nunn had participated as a team manager in local football leagues.  He was offered a position of team manager last year, but had to decline.[17]

·        Mr Nunn stated that he got to see a lot of his grandchildren who would come for a meal each Sunday:

“I play with them as much as I can.

…

[12]T 7, L 29 to T 8, L 4

[13]T 8, L 24 to 30

[14]T 9, L 2 to 10

[15]T 9, L 12 to 21

[16]T 9, L 22 to 26

[17]T 10, L 27 to T 11, L 2

I’m very strong still up top, I still exercise with a pull bar and that so I keep strong up top, my legs are not as good.  I used to carry them on my shoulders and run them up and down the hallway.  With my youngest two now they’ve never seen me do that because, you know I’m not capable of doing that no more.”[18]

·        Mr Nunn agreed he had been on trips to the Gold Coast, probably for ten nights since the accident.  He had also visited a cabin in Moama. This would occur about once per month during summer.[19]

[18]T 13, L 19 to T 14, L 8

[19]T 15, L 27 to T 16, L 13

16During cross-examination surveillance video was shown to Mr Nunn.  This had been taken between 12 December 2020 and 2 February 2021.[20]  When further cross-examined Mr Nunn agreed that the surveillance footage had shown him completing an 18 hole round of golf, wearing shorts and purchasing some paint and a drop sheet from a hardware store.

[20]Exhibit 1

17When re-examined Mr Nunn explained that he did not wish to take pain killers, although he suffered throbbing pain and what he would describe as an electric shock multiple times per day.[21]

[21]T 21, L 14 to 18

18He further stated that he would prefer to play golf multiple times, perhaps three or four times per week, as it was an addictive sport, but he could not do that.[22] 

[22]T 21, L 26 to T 22, L 4

19He also stated he did not believe he could do the team manager’s job as it may involve physical aspects if a player was injured, or even if he needed to retrieve a ball going over a fence.  It would certainly require a degree of standing.[23]

[23]T 22, L 23 to T 23, L 11

20In response to my question concerning golf, Mr Nunn agreed that playing 18 holes of golf would take around four hours and would involve him walking somewhere between six and eight kilometres.[24]

[24]T 24, L 15 to T 25, L 7

21The only other lay evidence relied upon was an affidavit sworn by Janine Nunn, the plaintiff’s wife, on 2 March 2021.  She was not required for cross-examination.  The substance of Ms Nunn’s affidavit supported Mr Nunn’s evidence concerning his difficulty sleeping, complaints of pain and cramping in the left leg, difficulties with golf, involvement in local football and interaction with his grandchildren.  Her affidavit also supported Mr Nunn’s evidence of weight gain due to reduction in exercise.[25]

[25]Exhibit A, pp 63 to 64

The medical evidence

22The medical evidence tendered in Mr Nunn’s case was neither complex nor controversial.

23Mr Brett QC tendered into evidence reports from three general practitioners, Dr Scott Tunaley, Dr Roshan Fernando and Dr Yu Long Leuw.[26]

[26]Exhibit A, pp 23 to 25; 29 & 30 to 32

24Dr Tunaley had seen Mr Nunn on the day of the incident at the Tristar Medical Group in Epping.  He noted Mr Nunn had a superficial laceration of about 10 centimetres laterally with a superficial skin flap.  The wound was cleaned with antiseptic and a dressing and he was given a tetanus booster.  Mr Nunn was advised to use a compression bandage and elevate and ice the leg.  He was given some pain relief.

25He next saw Dr Tunaley on 3 October 2016 with a complaint of bleeding from the wound and the dressing was re-applied.  Dr Tunaley did not detect any infection and saw Mr Nunn again on 22 October 2016, when he advised that no skin graft would be required.  When he last saw Mr Nunn on 31 January 2017 he described the leg as having healed:

“There was some slight swelling but this was similar to his other non injured leg.  There was some mild staining of the skin and some pain around the area of a neuropathic type which would just take time to desensitise.  We discussed using some Vitamin E and general massage and not cover it up any more.

The diagnosis therefore was of a superficial skin laceration.”[27]

[27]Exhibit A, p 24

26A short report from Dr Fernando at the same clinic did not add anything to the case, as he had not seen Mr Nunn in relation to the leg injury.

27Dr Leuw is Mr Nunn’s usual general practitioner.  He reported to Mr Nunn’s solicitors on 27 October 2017 noting that he had first seen Mr Nunn in relation to the leg injury on 4 October 2016.  He noted Mr Nunn’s description of a “four to five centimetre diameter very deep abrasion of his left shin.”[28]  Dr Leuw commented that the wound was well healed when he saw Mr Nunn on 1 February 2017.  He noted however Mr Nunn’s complaints of numbness, hypersensitivity, swelling and cramps in his leg.

[28]Exhibit A, p 30

28Dr Leuw states in his report that Mr Nunn requested a referral to Mr Terrence Chin, orthopaedic surgeon, in June 2017.  Dr Leuw’s diagnosis was as follows:

“Healed left shin abrasion with some residual symptoms attributable to minor neuro-vascular insult.  Adjustment disorder secondary to the injury and the management’s attitude.”[29]

[29]Exhibit A, p 31

29Mr Terrence Chin, foot and ankle specialist, provided a report dated 5 October 2017.[30]  He had seen Mr Nunn on 19 July 2017 and recorded a history of the injury, noting that the wound was very slow to heal:

“It did eventually heal at about January of 2017.”[31]

[30]Exhibit A, pp 26 to 28

[31]Exhibit A, p 26

30Mr Chin noted the following complaints at that time:

His ankle swelled with any overactivity.

The foot throbbed during the day.

There was a cramping sensation in his popliteal fossa at night but this was intermittent.

There was some discomfort in his big toe.

The left foot could have a dark bluish discolouration with overactivity and he felt the left foot tended to be a little bit colder than the right.”[32]

[32]Exhibit A, p 26

31Mr Chen’s report stated:

“It is clear that Michael has had a significant soft tissue injury overlying the anterior compartment of his left leg.  This had required several months to completely heal.  At this point, I did not see any structural impairment or sequelae from his injury.  I recommended, however, for an MRI scan to be done of his leg as well as his ankle to assess things more closely.”[33]

[33]Exhibit A, p 27

32It would appear Mr Nunn did not proceed with the MRI scan.

33The final report from any treating doctor was from Dr Zil Yassine on 20 May 2018.[34]  Dr Yassine practises as a specialist in varicose vein treatment.  Dr Yassine saw Mr Nunn on 6 February 2018 with concerns about:

“… a blanching pigmented lesion on the left foot in association with his leg ‘feeling heavy’ and mild swelling since the injury.”[35]

[34]Exhibit A, pp 33 to 34

[35]Exhibit A, p 33

34Dr Yassine diagnosed the development of varicose veins subsequent to the trauma.  Dr Yassine stated:

“Michael was counselled that it is possible that non visible varicose veins may have existed previous to the consultation, however, almost certainly the injury would have exacerbated their development.”[36]

[36]Exhibit A, p 33

35The prognosis was as follows:

“Mild but chronic with heaviness in the legs and mild swelling.  Any activity involving prolonged standing would exacerbate these symptoms.”[37]

[37]Exhibit A, p 34

36Mr Brett QC tendered reports from medico-legal consultants, Dr David Slattery, orthopaedic surgeon, and Dr Robyn Horsley, occupational physician.[38]

[38]Exhibit A, pp 36 to 43; 44 to 51

37Mr Slattery examined Mr Nunn on 11 January 2021 and reported to the plaintiff’s solicitors on 18 January 2021.  Mr Slattery recorded a detailed history including a notation of Mr Nunn suffering a collapse of his left leg on 4 August 2020 and again suffering a laceration.  By way of current history Mr Slattery noticed the pain in the lower leg and ankle was normally 1 to 2 out of 10, “but after golf or activity, can reach 7 or 8 out of 10.”  He described the pain as a pressure around the anterior aspect of the leg.  Mr Nunn also noted an intermittent electric shock-like sensation affecting his left lower leg, which can occur up to 20 times per day. 

38On examination he noted some reduced sensation in the area of the left foot, which he believed was consistent with a superficial peroneal nerve injury.  Mr Slattery did not believe any further medical treatment was required, other than intermittent analgesia to address pain.  He regarded Mr Nunn’s prognosis as being “guarded”:

“Given the chronicity of his symptoms and the ongoing disability he suffers, he is likely to experience ongoing functional problems into the foreseeable future.  There is a low risk of further deterioration in the future.”[39]

[39]Exhibit A, p 41

39Dr Horsley examined Mr Nunn on 20 January 2021 and provided a report to the plaintiff’s solicitors on the same date.[40]  Dr Horsley also recorded a detailed history, noting Mr Nunn’s current symptoms as related to prolonged walking, particularly when playing golf:

“He then experiences ‘aching’ that night, around the scar area.  It can be between 6 and 8 out of 10 on the visual analogue scale.  He treats the pain with Panadol.  It resolves and allows him to go back to sleep.  The frequency of the ‘throbbing’ depends on his level of activity.

…

In addition to the ‘aching’ at night he experiences ‘quick, sharp one to two second pain’ over the left lateral lower calf, up to 20 times per day.  When it occurs, it is 7 to 8 out of 10 on the VAS.  It then resolves.  If he has been walking for an extended period, he can experience discomfort in the anterior ankle which is chronic, 2 to 3 out of 10.  It is a ‘pressure feeling’. He tends not to treat it.  His level of swelling depends upon his activity level.  If he sits around and does very little, there is no swelling and less discomfort.

He is concerned about the scarring and skin discolouration.  He did not believe it needed to happen.  He is frustrated by the appearance.  There is numbness over the scar area.”[41]

[40]Exhibit A, pp 44 to 51

[41]Exhibit A, p 48

40Dr Horsley diagnosed Mr Nunn as suffering:

“… a significant laceration to his left lower leg on 29 September 2016 with delayed healing and residual scarring.  He gives a history suggestive of lymphedema.”[42]

[42]Exhibit A, p 50

41Dr Horsley also regarded Mr Nunn as suffering some level of depression.  She had noted a significant history of conflict with Mr Nunn’s employer following this injury, which he believed was unjustified.

42For completeness I note that Mr Brett QC tendered into evidence four ultrasound reports taken between 26 June 2017 and 19 December 2017, which had been provided to the medic-legal practitioners.[43] 

[43]Exhibit A, pp 52 to 57

43Mr Rattray QC on behalf of the defendant tendered into evidence two reports from Mr Charles Flanc dated 3 March 2018 and 18 February 2019.[44]  He additionally tendered a report from Dr Dominic Yong, occupational physician, dated 10 November 2020.[45]  He also tendered a short report from Dr Adrian Ling, a vein artery specialist, who had reported to Dr Fernando at the Tristar Medical Clinic on 6 June 2018.[46]

[44]Exhibit 2, pp 3 to 23

[45]Exhibit 2, pp 24 to 33

[46]Exhibit 2, p 34

44Finally, Mr Rattray QC tendered the Medical Panel Certificate of Opinion and Reasons dated 8 October 2019.[47]

[47]Exhibit 2, pp 35 to 45

45As there is little difference in the medical opinions, it is unnecessary to examine these medical reports in detail.  Sufficive to say that Mr Flanc, in his most recent report dated 18 February 2019, concluded that Mr Nunn had sustained a severe laceration over the anterolateral aspect of his left lower leg which had gradually healed with extensive scarring.  Mr Flanc found evidence of varicose veins which would have been present before the accident, but may have been aggravated by it.  He also concluded that there was some damage to the subcutaneous lymphatic vessels resulting in some degree of lymphedema:

“The combination of these factors would result in a vulnerability to swelling of the ankle and foot and both would be classified under ‘vascular assessment’.”[48]

[48]Exhibit 2, pp 18 to 19

46Mr Flanc believed that Mr Nunn would have a vulnerability to increased swelling and discomfort.

47Dr Yong examined Mr Nunn on 10 November 2020 and reported to the defendant’s solicitors on the same day.  He concluded that Mr Nunn had suffered a left lower leg laceration in the fall which had been treated surgically and had left Mr Nunn with an ongoing scar and pain.  This was complicated by a diagnosis of lymphedema which he described as appearing mild in nature.  Dr Yong also noted the diagnosis of a psychological comorbidity which he suggested should be addressed by a psychiatrist.[49]

[49]Exhibit 2, p 30

48Dr Ling had seen Mr Nunn in June 2018 on referral from Dr Fernando at the Tristar Medical Group.  He had noted Mr Nunn complaining of swelling of the ankle, the development of numbness and associated swelling on the left shin and concern about small spider veins in the dorsum of the left foot.  Dr Ling diagnosed the likelihood of trauma related lymphedema and recommended that he see a physiotherapist specialising in that condition and wear compression stockings.[50]

[50]Exhibit 2, p 34

49The Medical Panel Opinion provided on 8 October 2019 is binding on the court insofar as it is relevant to the court’s task in the present application.  The effect of the opinion is that the court is bound to accept that Mr Nunn had sustained an accepted left calf injury, including lymphedema, scarring and nerve damage resulting in a three per cent whole person impairment, assessed in accordance with the AMA guidelines. 

50As stated above, there is ultimately no disagreement between the parties as to the nature of the injury sustained by Mr Nunn in the work‑related incident of September 2016.

Analysis

51Mr Nunn was 63 years of age at the time he sustained the injury to his left shin.  On any view his recovery was protracted and has been incomplete.  The deep laceration to his lower leg has resulted in him suffering from a degree of lymphedema and a lesion affecting the common perineal nerve, together with scarring, which was viewed during the course of this hearing. 

52Insofar as Mr Nunn’s application relies upon paragraph (a) of the serious injury definition, his entitlement to leave is dependent upon the court being satisfied that the consequences flowing from his organic injury can fairly be said, when comparison is made with a range of other possible injuries, to be such that those consequences can fairly be described as at least very considerable and more than significant or marked.

53The alternative gateway available to Mr Nunn relies upon paragraph (b) of the statutory definition, being permanent serious disfigurement.  In such cases it is unnecessary for an applicant to demonstrate consequences such as the impact on his activities of daily life in order to succeed.  The Court of Appeal considered the approach to be taken in such applications in Transport Accident Commission v Garcia.[51]  There the court acknowledged that in assessments made under paragraph (b) of the definition, the court was permitted to take account of the consequences of the disfigurement as found on the evidence, whilst acknowledging that cases relying upon paragraph (b):

“… are, in most cases, of a kind that do not permit the sort of discussion and analysis that occurs in a standard paragraph (a) case involving, say, a neck or a back injury.”[52]

[51][2015] VSCA 225

[52]Ibid at [31]

54On the basis of the authority to which I have referred, Mr Nunn may succeed in his application without proof of serious consequences if the very nature of the disfigurement is such that it would, by its physical characteristics, satisfy the statutory definition. 

55In the present case I am unable to be satisfied that the extent of the disfigurement on Mr Nunn’s lower leg satisfies that statutory test.

56Whilst I agree with Mr Brett QC’s submissions in final address describing the scar as “nasty”, I am not satisfied that it could fairly satisfy the statutory definition of serious permanent disfigurement.  Although the scarring is quite obvious, it is located on the lower leg.  The scar itself was agreed to be about four to six centimetres in  length on the shin with a further area of discolouration extending to approximately the ankle bone on the outside of Mr Nunn’s leg.

57It was quite apparent during a portion of the surveillance video forming Exhibit 1, that Mr Nunn did not display any particular concern or take any measures to conceal the scar whilst he was observed shopping at a Bunnings warehouse in February 2021.  In fact he was wearing shorts and thongs on that occasion.

58There may well be circumstances where a scar of similar size and prominence does satisfy the statutory test.  It may be on a more obvious part of the body, or it may cause particular embarrassment or self-consciousness perhaps to a person of younger age and different stage of life to Mr Nunn.

59The scarring and its long-term consequences can be taken into account for the purposes of satisfying paragraph (a) of the serious injury definition.  In final address Mr Brett QC submitted that the scarring itself was a major consequence of the organic injury to Mr Nunn’s left leg.  The physical restrictions flowing from this injury impacted to a large extent on Mr Nunn’s intention to play golf on a more frequent basis.  Additionally, his desire to return to an active management role in local football had been lost. 

60Mr Brett QC described Mr Nunn as living a relatively quiet life and therefore the restrictions on his preferred recreational activities should be viewed more prominently than would be the case for a person engaging in a broader range of recreational and leisure activities.  These restrictions, coupled with the pain and sleep disturbance should entitle Mr Nunn to a grant of leave.

61Mr Rattray QC on behalf of the defendant described the consequences flowing from the left leg injury as slight.  He submitted that the surveillance material, particularly that which showed him playing a full round of golf without apparent restriction, pointed to a conclusion that the consequences of his left leg injury fell considerably below the statutory threshold.  Mr Rattray QC also made reference to Mr Nunn’s responses in cross-examination to questions concerning his activities of daily living and the absence of any significant medical treatment, other than taking non-prescription drugs at night.

62The assessment of the level of pain and suffering consequences ultimately involves questions of judgment based upon the accepted evidence which must be proved by an applicant.  Appellate courts have provided considerable assistance in cases such as Peak Engineering & Anor v McKenzie[53] and more recently in TTB SMS Pty Ltd v Reading[54] as to the manner in which a court should approach the task of assessing whether the accepted consequences to a particular plaintiff when viewed objectively will satisfy the statutory test.  I am mindful also of the useful list of ordinary activities which were set out by the Court of Appeal in Haden Engineering v McKinnon.[55]  Those activities which may be generally considered in assessment of a particular injury include the following:

[53][2014] VSCA 67

[54][2020] VSCA 203

[55][2010] VSCA 69; [2010] 31 VR 1

“.     sleep

.     mobility;

.cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);

.    capacity for self-care and self-management;  (concerning which the definition of ‘disability’ in the Disability Act 2006 could be applied, as an impairment which reduced a person’s capacity for self-care, self-management, mobility or communication);

.     performance of household and family duties;

.     recreational activities;

.     social activities;

.     sexual life;

.     enjoyment of life.”[56]

[56]Ibid at [16]

63There is no question that Mr Nunn has experienced consequences from his left leg injury which are of real significance to him.  Nevertheless it is clear that he retains, in my view, a significant capacity to continue his activities of daily living, including the majority of his recreational activity without the level of restriction that could properly satisfy the statutory test.  

64In making an assessment I do place considerable weight on the surveillance material which showed him on 8 December 2020, not only playing golf over approximately a four hour period, but also in the carpark following that game of golf apparently chatting to his playing partners and displaying no particular signs of pain or discomfort.  I do accept that Mr Nunn’s golf handicap has worsened subsequent to his leg injury.  I also accept that he may have intended to play on a more frequent basis than is currently the case.  I do however find it incongruous that a person with a level of restriction as maintained by Mr Nunn would not avail himself of the use of a golf cart or a powered golf buggy (which are regularly seen on most golf courses) in the event that the consequences of his leg injury were affecting him to the degree he maintains.

65Ultimately when a comparison is made, as required by the statute, with a range of possible other injuries or impairments, I am unable to be satisfied that Mr Nunn’s left leg injury could fairly be described as at least very considerable and more than significant or marked.

Conclusion

66In the circumstances as I have found, Mr Nunn’s application for leave must be dismissed.

67I will hear the parties in respect to the formal orders sought and on the question of costs.

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