Rankin v TAC
[2012] VCC 1173
•24 August 2012
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04891
| ANDREW BENJAMIN RANKIN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 13 and 14 August 2012 | |
DATE OF JUDGMENT: | 24 August 2012 | |
CASE MAY BE CITED AS: | Rankin v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1173 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – Serious injury – consequences of head injury – whether the consequences of injury were at least very considerable
LEGISLATION CITED – Transport Accident Act 1986
CASES CITED – Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Richards v Wylie (2000) 1 VR 79; Rodda v Transport Accident Commission [2008] VSCA 276
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring with Mr N Bird | Taits Legal |
| For the Defendant | Mr P Elliott SC with Mr J Batten | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 On 31 August 2003, Andrew Rankin was a passenger in a vehicle which was involved in a motor vehicle accident (“the accident”). He alleges that, as a consequence of the accident, he has suffered injuries.
2 He seeks the leave of this Court to issue a proceeding to recover damages in respect of those injuries.
3 His right to do is governed by the provisions of s93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, he must satisfy the Court that his injury is serious.[1]
[1]Section 93(6) of the Act
4 The term “serious injury” is defined in s93(17) of the Act, insofar as is relevant to this application, as:
“(a) serious long-term impairment or loss of a body function.”
5 In order to succeed in his application, Mr Rankin must satisfy the Court that the consequences of his injury are serious. In order that an injury be considered to be serious:
(a)the consequences of the injury must be serious to him;
(b)those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)the question to be asked is whether the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than merely significant or marked.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at [140]
6 Mr Rankin alleges that the consequences of his injury satisfy the threshold test as being at least very considerable. The defendant denies this is so.
7 The matters to be determined in this application are:
(a)What is the nature of the injury suffered by Mr Rankin in the accident?
(b)Are the consequences of Mr Rankin’s injury more than very considerable for him?
Background
8 Mr Rankin is twenty-eight years old. He was educated at a number of different schools, finally leaving school half way through Year 10.
9 From primary school age, he was diagnosed with a condition known as Attention Deficit Hyperactivity Disorder (“ADHD”). He was hyperactive at school and got into various problems during the course of his schooling, resulting in him being asked to leave a number of schools, and having to go elsewhere. Nevertheless, he was able to enjoy sport, fishing, snorkelling and motorbike riding.
10 In April 1998, when he was aged fourteen, he was involved in a car accident on the farm on which he and his family resided. His head hit the dashboard of the car and he suffered a large laceration.
11 Since leaving school he has had a number of different jobs including working as a labourer and welder and a farm hand trainee. All of his jobs have been in the unskilled, labouring field.
12 His work record overall has been poor. A summary of tax returns indicated that in the year ended 30 June 2000, he earned $7,725. He does not appear to have filed income tax returns for the years ending June 2001, 2002 or 2003.
13 In 2002, he completed a Certificate III in Horticulture at the Warrnambool TAFE. In the years leading up to the accident, he was mainly involved in casual farm employment on the family dairy farm or for his uncle who farmed nearby. He worked for some time on a part time basis for an aunt who set up and operated a plant nursery at Lismore.
The Accident and Resultant Injuries
14 The accident occurred on 31 August 2003. He was a passenger in the vehicle which left the highway and collided with a tree. He suffered a number of injuries to his face, jaw, teeth, head, neck and back. He was initially taken to the Timboon Hospital, was transferred to the Geelong Hospital and finally transferred again to The Alfred Hospital in Melbourne. He underwent extensive surgery for his facial and head injuries.
15 He suffered a number of injuries to his head:
(a) Complex comminuted facial fractures to the nasal, frontal orbital, ethmoid and zygomatic bones;
(b) A depressed fracture of the skull;
(c) Frontal sinus fractures;
(d) Ongoing cerebral spinal fluid rhinorrhoea for some time.
16 He was an in-patient at The Alfred Hospital on three occasions in late August and September 2003, and later attended as an outpatient. His treatment at the hospital appears to have been completed by mid October 2003.
17 On final discharge from hospital, he returned to live with his mother on the family farm. The evidence as to what work he did when he initially returned home is unclear. It would seem that he again performed some limited, casual farm work.
18 In 2005, Mr Rankin was convicted of a serious assault while in the company of others. He was sentenced to a substantial prison term as a consequence. He served approximately five years in gaol and was finally released on parole in January 2010.
19 He served his prison sentence at various different gaols, including Port Phillip, Fulham and Loddon Prisons. He had limited treatment during his incarceration. I accept that getting adequate treatment might have been somewhat difficult for him during that time. Nevertheless, he did manage to obtain some chiropractic treatment while at Fulham.
20 Whilst in the various gaols, Mr Rankin was required to perform a range of work duties.
(a) For a time, he worked in the prison bakery. His duties included the lifting of trays. On one occasion there he hurt his low-back lifting a 20 kilogram box. His other duties in the bakery appear to have been relatively light;
(b) At Loddon prison, he worked fabricating sheet metal, making up first aid boxes;
(c) He was assembled distributors for Bosch;
(d) In 2008, he was employed in a group known as the Nalu Bush Gang which was located in an open camp outside the prison. He and a gang of ten or fifteen prisoners performed work for the local shire including some gardening, rubbish collection and some digging for post holes.
21 While in prison, he attended the gymnasium regularly and seasonally played some football and cricket.
22 He completed a number of courses whilst in prison. From his description of them and the brief time each took, I understand these were mainly elementary. He did partake in a correspondence equine management course which he has not completed. I understand he thought he might be able to obtain work in a horse stable if he was able to complete it.
23 Since his incarceration, the farm on which his family had lived has been sold. He and his mother reside in a cottage on land owned by his uncle. His uncle allows them to live there rent free. He performs occasional, light casual work for his uncle from time to time but not on any organised basis. If he sees there is something to be done, such as assisting in moving cattle from one part of the property to another, he assists. From time to time, his uncle will specifically ask him to do something and he will attempt to do so. Most of the work that he does is generally dairy farmhand work. This might involve rounding up cows, moving cows to various paddocks on the property, bringing cows into the dairy yard when required, feeding out calves by placing buckets of grain or milk on the farm ute and emptying them into feed troughs, checking fences and straightening fences when required.
24 He assists his mother with chores at home, including assisting in meal preparation and cooking, washing dishes, mowing the lawns with a ride-on mower, using a Whipper Snipper and performing some gardening activities.
25 I shall return to the various activities in which he partakes later in these reasons.
26 The fact that Mr Rankin suffered complex and multiple head and facial injuries is not disputed.
27 The defendant argues that Mr Rankin has made a relatively good recovery from his injuries and that the lifestyle that he leads today is not very different from his lifestyle before the accident.
28 Mr Rankin’s principal complaint regarding his post-accident problems is that his concentration and memory are poor and result in him being unreliable and, in effect, unemployable in the open employment market. He gave an example of leaving a hose on accidentally which resulted in the loss of a large quantity of milk on his uncle’s farm. He acknowledges that he needs supervision and needs to be constantly reminded about things. He forgets to do things that he has been asked to do and has agreed to do. For instance, there have been times when he has not remembered to switch off grain feeders. He has gone somewhere on the farm but, once there, cannot recall what it was he was supposed to do.
Medical Assessments
29 Mr Rankin’s facial and head injuries are not contentious and I shall not say more about them. It is the consequences of his head injury, as at the date of the hearing, that are in issue between the parties.
30 Dr Warwick Rouse was Mr Rankin’s general practitioner. His report of 16 December 2006 was tendered. It indicates that he has not seen Mr Rankin since 7 September 2004, some eight years ago, and prior to his incarceration. When seen in March 2004, he took a history from Mr Rankin that he felt that his mental state had worsened since the accident and that he was experiencing problems of violent outbursts, low tolerance, losing his temper easily and behaving irrationally, finding it difficult to hold down a job and being grumpy and intolerant of his symptoms. In September 2004, he noted a history that Mr Rankin was having trouble with anxiety and concentration.
31 Dr Rouse accepted that Mr Rankin’s emotional and mental functioning had deteriorated following the accident.
32 Susan Lloyd, a neuropsychologist, examined Mr Rankin in November 2007. Her report dated 26 December 2007 was tendered. The report is addressed to Pacific Shores Health Care of Castlemaine. That organisation was not identified by either of the parties. Nevertheless, it is clear from the report that Mr Rankin had been referred to her to ascertain the nature of his cognitive deficits as a consequence of his reported brain injury in 2003.[3]
[3]Plaintiff’s Court Book (“PCB”) 33
33 The history taken by Ms Lloyd was that Mr Rankin was suffering from one to two severe headaches per week, described as a throbbing pain at the back of the head. He reported that he had experienced difficulties with memory since the accident and was easily distracted, finding it hard to learn new things. Further, he reported that his level of frustration tolerance was extremely low and that this had led to his incarceration. She noted that prior to the accident, Mr Rankin did not have a criminal record.
34 Ms Lloyd conducted a cognitive examination. She reported that Mr Rankin’s pre‑morbid intellectual functioning was estimated to be of low-average abilities, based on educational achievement and occupational history, and performance on tasks thought to be relatively resistant to neurological trauma.[4] The results of his testing indicated that he continued to perform at that level on some measures, but there was a pattern of mild to pronounced deficits evident. An overall assessment of his general intellectual ability indicated that it was likely that his overall IQ fell within the range 63 – 71 which she described as extremely low to borderline range. His verbal intellect fell within the IQ range 69 – 79, which she also described as extremely low to borderline range. His performance or non-verbal intellect fell within the IQ range of 58 – 72.
[4]PCB 32
35 Ms Lloyd provided the following opinions concerning Mr Rankin:
“Mr Rankin’s current cognitive profile is characterised by a pattern of slowed speed of mentation, variable attentional abilities and reduced concentration, although he is able to focus and sustain his attention for short periods of time on tasks that have been a single percept. Nevertheless, his difficulties mean that he will typically miss details, become distracted when dealing with two streams of information and become overloaded by complex or detailed information. As such his ability to quickly comprehend and react to incoming information or process multiple streams of information at the one time is reduced, which subsequently impacts significantly on his capacity to acquire new information, particularly if it is presented in a lengthy or overly detailed manner. His capacity to acquire new information, even with repetition is limited and what information he does initially acquire is forgotten, particularly if he is unable to process it in his own time, which suggests initial poor encoding of information. Additionally, his recall of information does not benefit from the provision of forced choice recognition options, which do in fact appear to confuse him. Executive abilities are generally within the borderline to low average range, however there is evidence of concreteness in his verbal and non-verbal thought processes with a reduced ability to readily see alternatives, additionally his ability to formulate an appropriate strategy to deal with complex or unfamiliar information where he is required to impose his own ‘plan of attack’ or approach is below expectation and his approach to such situations is disorganised and piecemeal.
Overall, Mr Rankin has some clear limitations in his level of intellectual ability and has failed to acquire a reasonable level of competence in basic literacy as such; he will need assistance in understanding written and or complex and detailed information. As intimated, I suspect a number of his difficulties are longstanding and they are suggestive of a longstanding learning disability with deficits in language processing, however his reported traumatic brain injury is likely to have exacerbated his difficulties, in particular frontal executive deficits. Of note, his frontal executive deficits do not appear too restricted to cognitive deficits with him now also purportedly experiencing behavioural difficulties that are apparently characterised by low frustration tolerance. However, the contribution of co-morbid past use of alcohol and cannabis cannot be discounted as previously contributing to his reduced frustration tolerance, which from his reports led to his current incarceration. His brain injury is likely to have further exacerbated his pre-morbid attentional deficits.
Given Mr Rankin’s difficulties, I suspect he will likely experience problems coping with multiple attentional demands. Consequently, he will likely lose track of information or activities because he is prone to distraction by other events, be they relevant or irrelevant.”[5]
[5]PCB 33
36 Ms Lloyd set out a number of general strategies appropriate for working with Mr Rankin. These were set out on the final page of her report. I shall not repeat them here.[6] The nature of those strategies make it clear that Mr Rankin would struggle to cope with most jobs on the open employment market.
[6]PCB 34
37 Ms Lloyd’s assessment of the difficulties which Mr Rankin was likely to encounter in handling various tasks is consistent, in my view, with the evidence given by him concerning the difficulties he had in remembering what he had been asked to do and in carrying out tasks efficiently.
38 Mr James Drury, clinical neuropsychologist, examined Mr Rankin in April 2010. Mr Drury took a history form Mr Rankin that his memory had been getting worse, particularly in the last fourteen to fifteen months;[7] that is, his complaint of memory deterioration was said, at that stage, to have largely occurred from about early 2009.
[7]PCB 50
39 Mr Rankin also provided Mr Drury with a history of being unable to concentrate consistently, irritability and temper, feelings of anxiety, and sadness and depression, although his depression had improved after taking antidepressant medication early in the period of recovery following the accident.
40 Mr Drury considered that Mr Rankin had sustained a significant head injury with multiple facial fractures and it was most likely that he had sustained a mild to moderate concussive head injury. The history given to him of deterioration of memory over the previous fourteen to fifteen months was not, he opined, consistent with damage resulting from the accident in 2003. He considered that any organic condition resulting from that accident would have stabilised by 2005. He considered it possible that his psychological state had exacerbated his cognitive difficulties. He thought it clear that Mr Rankin’s cognitive functioning was limited before the accident but it was not possible to exclude at least mild residual organic damage resulting from the head injury suffered in the accident. Whilst it was unlikely that he sustained severe organic damage, Mr Drury considered that the pattern of test results indicated that aspects of attention and concentration and of processing speed were very limited and likely to be weaker than expected, even acknowledging the modest intellectual ability pre-accident.
41 Mr Drury considered that lapses of attention and concentration were likely to be having a secondary detrimental effect on his memory by restricting his capacity to register and absorb information efficiently, thereby restricting his subsequent retrieval of information from his memory. What appeared to Mr Rankin to be a memory deficit, might, in Mr Drury’s view, in fact be an attentional deficit. He thought it was not surprising that Mr Rankin experienced difficulties with memory, concentration and processing speed.
42 Mr Rankin told Mr Drury that he had been able to return to working on the family farm since his release from gaol in January 2010 and that he was hoping to obtain some low level construction work or farm work. Mr Drury was of the view that he had the capacity to manage that type of work, so long as adequate supervision and direction was available in order to assist him to maintain his concentration and minimise demands on his memory. It was likely that Mr Rankin’s head injury had made him less efficient with his work, particularly in sustaining concentration and working efficiently. Nevertheless, he still maintained a basic capacity for open employment.
43 Professor Stephen Davis examined Mr Rankin in August 2011 at the request of the defendant. He concluded that Mr Rankin had an impaired memory, particularly short term memory and cognition. He noted that his Mr Rankin’s mother now managed his finances. He noted ongoing problems with noises in his head, particularly on the right side. I interpret this as a reference to what Mr Rankin described as tinnitus. Professor Davis also noted the history of ongoing regular throbbing headaches and abnormal sense of smell that was markedly impaired, although not completely absent.
44 Professor Davis opined that there had been a significant acquired brain injury in the accident. He noted major issues with behaviour and psychiatric factors as well as organic behavioural change being implicated, although he noted this appeared to have improved over time. Professor Davis doubted that he had the ability to handle his financial affairs.[8] He thought he was capable of farming duties.
[8]Defendant’s Court Book (“DCB”) 10
45 Dr Martin van der Linden, psychiatrist, examined Mr Rankin at the request of the defendant in September 2011. He considered that Mr Rankin had suffered from panic attacks, anxiety, increased startle reflex and hyper alertness since the accident. He considered that Mr Rankin suffered form a panic disorder as well as an adjustment disorder with anxious mood.[9] He described some “subsyndromal symptoms of Post-Traumatic Stress Disorder”.[10]
[9]DCB 17
[10]DCB 17
46 Dr van der Linden believed that Mr Rankin’s prognosis for a resolution of his psychiatric symptoms was poor in view of the ongoing effect of his head injury.[11] He noted that his domestic and leisure activities appeared to be unaffected. Further, he believed that Mr Rankin could work in the capacity he worked in prior to the accident, namely, helping on the farm, helping in the plant nursery and cutting firewood.
[11]DCB 18
47 It was not disputed that Mr Rankin had suffered a partial loss of sense of smell. Although he also complains that his sense of taste has been affected, the evidence of Mr David Brownbill, neurosurgeon, makes it clear that the diminution in his sense of taste is actually a result of the partial loss of his sense of smell rather than a direct loss. The damage to the cranial nerves would not have affected the sense of taste directly. Nevertheless, the end result is that his sense of smell and taste and has been considerably diminished. Mr Brownbill considered that diminution of sense of smell would result in a risk to himself and to others if he was working in area that might have escaping gas or fire.
48 Mr Rankin alleges that he has suffered a serious injury pursuant to paragraph (a) of the definition of that term in s93(17) of the Act. He does not allege that he has suffered a serious injury pursuant to paragraph (c) of that definition. There is a distinction between the inquiry which is to be made under paragraph (a) and that which is to be made under paragraph (b) of the definition. I must first focus my attention on whether the injury suffered by Mr Rankin has produced an organic impairment or loss of a body function and then, by reference to the consequences of that impairment, determine if it is serious and long term.[12]
[12]Richards v Wylie (2000) 1 VR 79 at 86, paragraph [16]
49 However, it is not the case that a mental or behavioural disturbance or disorder can never be taken into account in determining the seriousness of an impairment of body function which has been found to exist.[13] If there has been a mental response to a physical loss or impairment, that may be one of the consequences to the injured person that the Court will need to evaluate when determining whether the loss or impairment of the body function is serious, or whether the overall consequences can fairly be described as more than significant or marked and at very considerable. An organic injury can have its seriousness measured in part by a mental response to a physical ailment.[14]
[13]Richards v Wylie (supra) at 86, paragraph [17]
[14]Richards v Wylie (supra) at 87-8 and 89, paragraphs [17] and [24]. See also Rodda v Transport Accident Commission [2008] VSCA 276
50 In this case, I accept that the primary injury suffered by Mr Rankin was a physical head injury. I further accept that it is likely that he has suffered a psychological response to that injury.
51 Ms Lloyd considers that Mr Rankin’s concentration and memory problems are related to his head or brain injury. On one view, Mr Drury considers that the deterioration of memory over the fourteen or fifteen months prior to examination may not have been a direct result of the head injury. Even if such loss was a psychological response to the physical injury, it would be permissible to take account of it when assessing the consequences of the injury. In any event, Mr Drury considers that aspects of attention and concentration, and processing speed are very limited and more than would be expected even acknowledging his pre-accident modest intellectual ability and that such lapses in attention and concentration are likely to be having a secondary detrimental effect on his memory.[15]
[15]PCB 56
52 Looking at the evidence as a whole, I find that, in the accident, Mr Rankin suffered a head injury with resultant loss or impairment of cognitive functioning, memory, concentration and sense of smell and taste.
Consequences
53 I accept that before the accident, Mr Rankin had only modest intellectual potential. It is clear that his work record before the accident was poor. However, I take into account that, at the time of the accident, Mr Rankin was aged only nineteen. I accept he had problems with attention deficit and hyperactivity as a child and had not excelled in school studies. However, I do not accept that this indicates that he was bound to have led an unproductive life of non-achievement indefinitely.
54 I find that there are a number of consequences to Mr Rankin of the head injury suffered by him.
(a) I accept that there has been deterioration in Mr Rankin’s memory and his powers of concentration. I accept the evidence of Ms Lloyd concerning the problems he faces in focussing, maintaining attention, becoming easily distracted, comprehending and reacting to incoming information, processing streams of information, and his recall of information. I note the comments of Mr Drury that Mr Rankin is unlikely to have sustained severe organic damage but note his views concerning the weaknesses in attention, concentration, and processing speed and the secondary effects on his memory.
(b) I accept the evidence that before the accident he was capable of working on the dairy farm run by his father and later by his uncle and that he was capable of carrying out unsupervised dairy work. His evidence was that before the accident, he was capable of milking the herd on his own. His father ran a milking herd of some 500 cows which, on any view, is a substantial dairy operation. By this I do not mean that that he physically milked the herd. It is common knowledge that such herds are milked mechanically but there is a good deal of organisational skill involved along with some physical labour. It would be a task involving considerable responsibility. His evidence was that since the accident, he found he could not concentrate on the tasks that he was given and forgot what he supposed to be doing at various times. He did not believe he was capable of working unsupervised. Mr Rankin was not challenged on this evidence and I see no reason to reject it.
(c) I accept his evidence that before the accident, he would regularly participate in what he described as scuba diving activities. In cross-examination it became clear that what he meant by this was snorkelling activities which involved diving for crayfish or abalone. Since the accident, he has found it impossible to have his head underwater due to what he describes as the unbearable pressure in his head. I accept that evidence.
(d) For some time, he enjoyed playing in a weekly darts competition with other members of his family at a local hotel. He has ceased doing this in more recent times because the organisers of the competition commenced a new type of game with a more complex scoring system with which he had difficulty. I consider that this is indicative of the reduction in his powers of concentration and in his ability to process information since the accident.
(e) I accept his evidence that since the accident he has suffered regular headaches and that he wakes most nights because of headaches.
(f) I accept that he has regular dizzy experiences.
(g) His sense of smell has been substantially impaired. The loss has also resulted in a perceived impairment of his sense of taste.
(h) I accept that he suffers from tinnitus which is distressing.
55 Mr Rankin gave evidence in what might be described as a very simple but straightforward manner. He did not appear to me to have either the guile or intellect to be deceptive or overly clever in the manner in which he responded to the questions that were put to him. I thought he was disarmingly honest.
56 Mr Rankin’s ability to hold down a real job in the open employment market has been significantly diminished as a consequence of the head injuries sustained by him. I note that he is able to help out his uncle on the dairy farm from time to time but that his uncle appears to have made reasonably minimal use of him. I do not consider that Mr Rankin was ever going to participate in employment involving high intellectual skills or the ability to carry out complex tasks. I consider that he was always going to be a labourer of sorts. However, I consider that, realistically, the position since the accident is that he is only capable of directly supervised basic labour. He is unlikely ever to gain or maintain employment which requires him to be unsupervised for any length of time. In his case, I consider that this is a very considerable consequence.
57 Counsel for the defendant submitted that the fact that Mr Rankin was able to perform various jobs and complete several courses whilst in prison told against the seriousness of the consequences of the injury. I do not agree.
58 I do not consider that the type of work that he performed in the various prisons was comparable to work in the open labour market. From the descriptions given by him of the tasks performed, I consider they were likely to have been closely supervised, unskilled, simple tasks performed over varying times that would not equate to normal, full-time work.
59 The courses undertaken by him appeared to be at a very basic level, to say the least. For instance, he performed primitive leather work; a traffic control course which would involve the use of stop or go signs; a basic occupational health and safety course which all prisoners were required to do before they could work anywhere in the prison system; a cognitive skills course designed to assist in him thinking before acting; an anger management course; a food handling course in which everyone passed; a fork-lift course that took about twenty minutes; and an English course to assist his language skills, even though English was his first language. He said he did heaps of little courses. I do not consider that any of them would have been serious courses resulting in Mr Rankin demonstrating an ability to be involved in the open work force.
60 It may be that there are supervised, simple jobs that he could do but I consider it likely that his capacity for work has been substantially reduced. The range of jobs suitable for him pre-accident may never have been very wide but that range is now much less.
61 Counsel for the plaintiff submitted to me that because Mr Rankin only had very basic skills before the accident, he had very few skills to lose. Any reduction in his capabilities would be bound to produce a very severe affect upon him. I accept that submission.
62 Although I accept that Mr Rankin’s senses of smell and taste have been diminished, I would not consider that these deficits, on their own, would constitute very considerable consequences. However, the loss of his sense of smell does add to the difficulties that Mr Rankin would have in performing even basic labouring positions. Although he has not had specific problems to date, the diminution in his sense of smell is yet another reason why he would be unsuitable for any unsupervised work in the vicinity of or involving the use of fuel, gas or chemicals or where there was any risk of fire. Many labouring positions would involve working in close proximity to such materials.
Conclusion
63 Taking all of the circumstances into account, I consider that the consequences for Mr Rankin of his head injury are more than significant or marked and are fairly described as being at least very considerable. Accordingly, I am satisfied that Mr Rankin has suffered a serious injury within the meaning of the Act.
64 Accordingly, pursuant to s93(4)(d) of the Transport Accident Act 1986, there will be leave to Mr Rankin to bring proceedings to recover damages in respect of injuries suffered by him in the transport accident which occurred on or about 31 August 2003.
65 I shall hear the parties in relation to costs.
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