Spagnolo v Transport Accident Commission
[2014] VCC 1332
•22 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-04659
| ELISA SPAGNOLO (RIBBERA) | Plaintiff |
| v | |
| Defendant |
TRANSPORT ACCIDENT COMMISSION
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 July 2014 | |
DATE OF JUDGMENT: | 22 August 2014 | |
CASE MAY BE CITED AS: | Spagnolo v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1332 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application
Catchwords: Application for leave to recover damages for pain and suffering only in transport accident - crush injuries to index and middle fingers of right dominant hand with compound comminuted fracture of intermediate phalanx of right middle finger - whether pain and suffering consequence serious
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries v Poljak [1992] 2 VR 129, Richards v Wylie [2000] VSCA 50, Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Sutton v Laminex Group Pty Ltd [2011] VSCA 52, Aburrow v Network Personnel Pty Ltd [2013] VSCA 46, Ellis Management Services Pty Ltd v Taylor [2013] 326, Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Plaintiff’s application for leave dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B. Anderson | Shine Lawyers (Reservoir) |
| For the Defendant | Mr J. Ruskin QC with Ms J. Frederico | Lander & Rogers |
HER HONOUR:
Introduction
1 The plaintiff is 46 years of age. She is divorced with two children 18 and 20 years old respectively. She has re-partnered in the last couple of years.
2 The plaintiff was educated to Year 12 level. She then worked for some years either as a secretary or claims officer for an insurance company. However, after the birth of her children the plaintiff held various casual positions. From 2005 she commenced employment at Subway, initially as a sandwich artist and later as a full-time manager.
3 The plaintiff works Monday to Friday and an extra weekend shift if needed. Her duties currently involve customer service, ordering and receiving deliveries of stock each morning, banking and cash register matters and running the Hoppers Crossing store. The plaintiff sets up the store each morning and puts on food and starts making cookies and breads.[1]
[1] Transcript (TN) 13-14
4 The plaintiff’s first affidavit, sworn on 10 June 2011, outlined the circumstances in which she suffered injury to the index and middle fingers of her dominant right hand on 8 July 2008.[2] The plaintiff deposed as follows:
“6.… The accident took place as I was getting back in to my car. I had opened the driver’s side door and had my right hand placed on the door. There was a ute parked next to my car. I noticed that the driver of the ute was sitting in his car using his mobile phone. The driver had seen me walk past him. I then opened my door. The driver then started driving past me on his way out of the car park. I was waiting for him to leave. However, as he drove out of his car park the back end of his ute struck my door and my hand which was resting on the door.…
7. I heard a loud crunch. I looked down at my hand. My middle finger was gashed right open and under the index and middle fingers was all cut open as well (the accident).”
[2] Plaintiff's Court Book (PCB) 6-7
5 Apparently the driver of the ute drove the plaintiff to the Werribee Mercy Hospital. She was then directed to the Western Hospital where the plaintiff underwent emergency surgery. This was clearly a very difficult experience because the plaintiff said she is allergic to anaesthetics and was awake throughout the procedure.
6 There was no contest about the nature of the injury suffered. The accident caused crushing injury to the right index and middle fingers and a compound fracture at the intermediate phalanx in the right middle finger (the injury). The treating surgeon, Mr Baldwin sutured the right index finger. The compound fracture was openly reduced and internally fixed using a K-wire.
7 The plaintiff convalesced for some five weeks. In the nine months following the injury she underwent approximately 16 hand therapy treatments and attended for review by her plastic surgeon on a number of occasions. Other than an attendance on a general practitioner on 20 January 2009 to treat an infected blister at the wound site, there has been no further medical treatment or use of painkilling medication.[3] The plaintiff, however, continues to complain of daily pain affecting her right hand and wrist and of ongoing functional losses which impact on her activities.[4]
[3] PCB 22-23
[4] PCB 9 and 12-13
The application
8 The plaintiff seeks leave to commence common law proceedings pursuant to section 93 of the Transport Accident Act 1986 (the Act). She was required to satisfy the Court that the injury suffered in the accident was a serious injury which existed at the date of determination of the application for leave.
9 The application was made under paragraph (a) of the definition of “serious injury”. Sub-section 93(17)(a) of the Act defines this as: "serious long-term impairment or loss of a body function". Serious injury is determined by considering the consequences of an injury-related impairment or loss of body function.
10 Under paragraph (a) the consequences relating to pain and suffering and pecuniary disadvantage of any injury to the right hand must be both long-term and serious to the plaintiff. The test is whether the consequences, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.[5]
[5]Humphries v Poljak [1992] 2 VR 129, 140
11 The consequences alleged in the present case included daily pain in the affected fingers, a slight worsening of pain in the plaintiff’s right arm, reduction in strength, movement and function of the hand and her concern that impaired functioning of the hand precluded a return to work as a sandwich artist in the future.
12 This was not a case where evidence of a psychological response or recognisable mental reaction to the impairment further informed the evaluation of the current pain and suffering consequence.[6]
[6]Richards v Wylie [2000] VSCA 50
13 There were some limited differences in the medical opinions expressed, however, the parties agreed, the case was confined to an analysis of whether the plaintiff’s claim met the narrative test under the Act.
14 Credit was not an issue. The plaintiff presented as a straightforward witness.
15 The documents tendered at hearing included two affidavits sworn by the plaintiff on 10 June 2011 and 13 August 2013, medico-legal reports prepared by plastic and reconstruction surgeon, Mr Anstee, orthopaedic surgeon, Mr Kossmann, plastic and hand surgeon, Mr Stapleton and a report from the Manner Lakes Medical Centre, the latter recording attendances on 26 July 2008 and 20 January 2009.
16 The plaintiff deposed to the accuracy of her affidavits. The plaintiff demonstrated for the Court a slight residual arching of both fingers. She gave some further evidence by way of clarification of her affidavit material. The plaintiff was cross-examined and re-examined.
Pain and suffering consequences
17 Evaluation of the pain and suffering consequence required consideration of the plaintiff’s experience of pain and the disabling effect of pain and impaired function on her physical capabilities (including her capacity for work) and enjoyment of life.[7]
[7]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [9]-[17], applied in Sutton v Laminex Group Pty Ltd [2011] VSCA 52 and more recently in Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
18 Evidence of the intensity and frequency of pain (in this case given by the plaintiff and mentioned in a limited way by medico-legal specialists), the treatment received or recommended and any objective evidence of the disabling effect of pain and impaired function, were relevant to evaluation of the plaintiff’s experience of pain. The evaluation of the disabling effect of pain and impaired function called for consideration of the extent to which these factors continued to limit the plaintiff’s activities and interfered with her enjoyment of life.
19 The plaintiff was a fit and active mother and worker in her early 40s when the injury suffered caused long-term impairment of her dominant hand. She has, nonetheless, retained the capacity to continue her work as a manager of Subway.
20 I accept, however, the general proposition that the plaintiff’s return to her pre-injury work as a manager, whilst a relevant consideration, was not solely determinative of whether the pain and suffering consequence was serious.
21 The main impact of impairment, however, appears to have been in the area of the plaintiff’s everyday activities and recreational pursuits.
22 Specialists have not questioned the genuineness of the plaintiff’s presentation. The histories obtained and the observations made by these specialists have informed assessment of pain and evaluation of the disabling effects of impairment.
23 The plaintiff’s experience of pain was described in her affidavits in the following terms:[8]
[8] PCB 8-9 and 12-13
In her affidavit sworn on 10 June 2011 –
“14. I suffer from ongoing pain in the middle and index fingers and wrist area of my right hand. I suffer from pain every day in the two fingers which were injured. The pain comes and goes during the course of the day. The pain gets worse in cold weather and in the mornings. The pain gets worse with activity and is worse at the end of my working day. The pain can come on even if I’m not using my right hand. I also now suffer from pain in my right wrist area.”
In her affidavit sworn on 13 August 2013 –
“2. The situation in relation to my right hand has remained much the same since the time when I swore my previous Affidavit. I continue to suffer from the problems with pain that I have set out in paragraph 14 of my previous Affidavit. However, I add that the pain in my right arm has got slightly worse because it extends upwards from my wrist area into my forearm. The pain levels are better when I’m not at work. I also believe that I have lost some feeling in the back of my middle finger around the scar sight (sic) because on one occasion recently I cut myself and I couldn’t feel anything.”
24 The extent to which pain and loss of function interfered with ordinary activities of life and the plaintiff’s performance of her work was expressed in the plaintiff’s affidavits in the following terms:
In her first affidavit –[9]
[9] PCB 9-10 and 13
“15. I suffer from loss of strength of movement in my right hand. I can only hold things in my right hand for a short amount of time. I have difficulty grasping things in my right hand. I can only make half a fist. I cannot fully straight my index and middle fingers. My index finger is permanently bent.… I also have swelling in both fingers, … My two injured fingers bloat even more during summer.
16. The loss of strength and power in my right hand affects my ability to undertake a wide range of activities such as lifting, gripping, turning and cutting. I need to give my hand rests during the course of the day. I find it particularly hard to use knives and scissors and feel that my wrist is getting sore because I am over-compensating for my finger problems by using my wrist area more. I have trouble with some of the finer tasks such as peeling vegetables, doing my hair and opening jars.
17. I have been forced to change the way I work to accommodate my restrictions.… I try to avoid doing the food preparation and I work more on the cash register. I choose tasks which I know that I can do. I have to take extra care so that I don’t overdo it or hurt myself.…
18. Before my hand injuries I used to enjoy netball, tennis and ten pin bowling. I was a shooter in B Grade netball in a local netball competition. I was playing right up until the time of my injury. After my injury I tried to return to netball but I only played about three games before stopping. My fingers swelled up after the ball hit my fingers and I also had trouble gripping the ball as a shooter. I was also scared of doing more damage. I had to completely give up netball, which was upsetting for me. I was playing up to 3 games week before the car accident. I tried to return to recreational tennis. However, I could no longer hold the racquet properly and so I have now given tennis away. I also used to enjoy occasional 10 pin bowling with my children. I tried this one since my injury but I could not do it because I could not grip the bowling ball.”
In her second affidavit –
“3. I continue to suffer from the restrictions that I have set out paragraphs 15 and 16 my previous Affidavit. I continue to work in my role as a manager at the Subway at Hoppers Crossing and I continue to manage my work situation as best I can as set out in paragraph 17 of my previous Affidavit. As a result of my ongoing hand problems I do not believe that I would be able to physically cope with the duties of being a full-time continuous sandwich maker because this involves continuous motion for extended periods including the cutting of bread with a knife and food preparation with the cutting and slicing of vegetables.”
25 Under cross-examination, the plaintiff agreed she had done her best to provide doctors with an accurate report of the problems she experienced.
26 The plaintiff was examined by Mr Anstee at the request of her solicitors on 9 November 2010 and again on 25 July 2013.[10] The salient features of Mr Anstee’s reports are summarised as follows:
[10] PCB 49-56 and 58-66
· in 2010 the plaintiff’s complaints included difficulty performing some right-handed tasks, gripping some small items and peeling pumpkin, an inability to play tennis or netball due to her concern about further injury to the right middle finger, discomfort in her right hand after a busy day at work, taking longer to perform jobs and stiffness in the right index finger in the morning;
· clinical examination in 2010 revealed a reduced range of movement in some joints of the right hand;
· in 2010 Mr Anstee assessed a slight reduction in mobility due to decreased (rather than increased as mentioned in the report) range of movement, little effect on the plaintiff’s personal relationships and some adverse effect on her home and work activities due to reduced range of movement. He otherwise accepted the plaintiff’s description of the impact on her leisure activities and noted that the plaintiff was coping satisfactorily in her work;
· no further treatment was recommended. In Mr Anstee’s opinion the level of impairment found was substantially permanent;
· by 2013 the complaints made included the plaintiff’s belief that her right hand was now weaker and less reliable (measurement of the plaintiff’s grip appeared to indicate that the plaintiff’s non-dominant left hand was in fact stronger), reduced range of movement of the right middle finger (examination revealed a reduced range of movement in the right index and middle fingers), difficulties peeling vegetables, holding a knife, vacuuming, prolonged holding of small round objects, coldness in the right-hand and, in winter, stiffness, loss of sensation on the back of the right middle finger (on testing Mr Anstee found normal sensation, normal sweat patterns and staining consistent with use of the finger) and swelling in the proximal interphalangeal joint of the right middle finger;
· in 2013 Mr Anstee assessed a slightly reduced mobility due to decreased range of movement, little effect on the plaintiff’s personal relationships, and some adverse affect from the reduced range of movement on home, work and leisure activities (and if this was genuine, some impact due to sensory loss);
· in 2013 Mr Anstee did not anticipate any future change in the range of movement demonstrated.
27 Three matters of note arose from Mr Anstee’s reports. The first was that, having checked the operation notes, Mr Anstee wrote separately to the plaintiff’s solicitors on 25 July 2013. In this letter the specialist confirmed he could find no explanation for the numbness of which the plaintiff complained in her right middle finger. He asked to speak to the solicitor by telephone.[11] If a discussion took place, no record of this was put before the Court.
[11] PCB 57
28 As the extract from the plaintiff’s second affidavit in August 2013 showed, the complaint of sensory loss specifically related to a loss of some feeling in the back of the middle finger around the site of the scar. Notably, Mr Stapleton, who examined the plaintiff on 10 July 2013 at the request of the defendant’s solicitors, did record some sensory loss over the dorsum of the interphalangeal joints of both injured fingers.[12] It was not clear from reading his report what matters informed this comment other than the plaintiff’s subjective account.
[12] Defendant's Court Book (DCB) 18
29 Mr Kossmann, who reported to the plaintiff’s solicitors some weeks before Mr Anstee reviewed the plaintiff on 25 July 2013, did not address the question of sensory loss.[13]
[13] PCB 74-84
30 In the absence of a clear physiological explanation for this, the plaintiff has not satisfied me that sensory loss affecting one or both fingers was a relevant consideration in my assessment of the pain and suffering consequence.
31 Leaving to one side for the moment, the complaint of discomfort at the end of a busy working day, the second matter of note was that specific complaint of pain was not mentioned in either of Mr Anstee’s reports. Mr Kossmann noted the plaintiff’s report of increased pain with prolonged writing. Otherwise, his report was also silent on this issue.
32 Nevertheless, on 10 July 2013, Mr Stapleton recorded complaint of intermittent pain in the index and middle fingers (which “comes and goes”[14]).
[14] DCB 18
33 I accept that the plaintiff probably does experience some level of pain/discomfort in the affected digits and compensatory activity probably does also lead to wrist and forearm pain. However, in this case, the evidence taken as a whole, suggested that pain was, at best, intermittent and not such that treatment or medication had been required for some years. As mentioned, the last attendance for treatment was in June 2009 when antibiotic medication was prescribed in the treatment of an infection at the site of the wound.
34 The third matter was that, unlike Mr Kossmann, Mr Anstee did not comment on the risk, if any, of osteoarthritic change. On the contrary, neither of the reports made by Mr Anstee some 2 ½ years apart indicated concern about the possibility of deterioration in the condition of the plaintiff’s right hand in the future. Mr Stapleton’s report was to the same effect. In his opinion the plaintiff did not require further treatment, now or in the future. She had, he reported, reached the level of maximum medical improvement.[15]
[15] DCB 19
35 There has been no radiological investigation since the plaintiff underwent surgery in 2008. The plaintiff, nonetheless, placed particular emphasis on Mr Kossmann’s observation that she “may” develop osteoarthritic changes in the second and third fingers of the right-hand which, in turn, may affect the movements of the right-hand and right wrist (“Time will tell if she develops advanced osteoarthritic changes in her second and third finger as well as the rest of her right-hand. I cannot give you a timeframe if and when this will happen”[16]).
[16] PCB 77 Sutton op. cit. [114]
36 Based on the medical evidence as a whole, I was not satisfied that future risk of osteoarthritic change and associated treatment was an appropriate consideration in the assessment of the pain and suffering consequence of this injury.
37 Mr Kossmann examined the plaintiff either on or shortly before the date of his report, 3 June 2013.[17] On this occasion, the plaintiff described similar complaints to those reported to Mr Anstee: “a cold right hand. She has less grip and strength in her right hand. The nail growth of the second finger is reduced. Ms Spagnolo has difficulties making a fist with her right hand. She cannot completely extend her second and third fingers on the right side. She has difficulties using a knife, which is difficult for her since she is working at Subway makings sandwiches, where she is employed as a hands-on manager. She can write; however not for a long time due to increasing pain issues when she is writing. She cannot hold onto things with her right hand for a long time” and “an impact on her social, domestic and recreational activities. She runs the household and she does a little bit of gardening. She had to give up playing netball due to her injuries on her right hand”. [18]
[17] PCB 74-84
[18] PCB 74-75
38 Among other things, Mr Kossmann’s clinical examination confirmed the plaintiff’s inability to make a full fist with her right hand and extension deficits in both fingers.
39 Consistent with the description of the injury suffered, Mr Kossmann reported a significant injury. This injury, he said, had resulted in movement restrictions in both fingers and a loss of strength in the hand, which continued to impact on the plaintiff’s employment, domestic, social and recreational activities. He cautioned against activities requiring repetitive movements or a firm grip on an instrument or device.
40 The complaints and findings briefly recorded by Mr Stapleton on 10 July 2013 were contained under the heading ‘THE CURRENT STATUS’. Mr Stapleton noted as follows:
· as mentioned, the plaintiff’s report of pain in her index and middle fingers which came and went. She also noted greater discomfort on a cold morning;
· diminished grip and a slightly reduced range of flexion and extension of the two fingers involved;
· as mentioned, some sensory loss over the dorsum of the interphalangeal joints of the two fingers;
· the doctor’s opinion that the plaintiff’s condition was stabilised and the impairment permanent.
41 Having noted that netball “is” the plaintiff’s hobby, Mr Stapleton did not further comment on the plaintiff’s capacity to continue this hobby.
42 In short, the medical evidence, among other things, indicated long-term, impairment of the right hand, affecting in particular the strength, grip and mobility of this hand. Not surprisingly, all of the doctors accepted that impaired functioning of the plaintiff’s right hand had some impact on her employment, domestic and social/recreational activities.
43 It is convenient to discuss at the same time the evidence of the disabling effect of any pain and impaired function of the hand and the extent to which this interfered with the plaintiff’s activities and enjoyment of life.
Employment
44 As mentioned, the plaintiff has successfully returned to her pre-injury employment where she currently supervises about 10 employees. As I understood the evidence, the plaintiff has not required time off work. She has, nonetheless, needed to adapt the way she goes about performing duties with her right hand. However, as a manager the plaintiff has been able to avoid or reduce her involvement in duties which cause pain/discomfort or are made more difficult due to impairment.
45 The plaintiff’s particular concern in this case was that she may not be able to return to full-time employment as a sandwich artist should her employment circumstances alter in the future.
46 Court of Appeal authority has recognised that loss of the ability to engage in a particular form of employment previously enjoyed and the frustration associated with not being able to perform this employment, may inform the assessment of the pain and suffering consequence.[19]
[19] Ellis Management ServicesPty Ltd v Taylor [2013] VSCA 326 [35] and [44]-[45]
47 In the present case, theoretically, the impairment of the plaintiff’s right hand could preclude full-time employment making sandwiches in the future. The plaintiff has, however, successfully progressed beyond this level of mainly hands-on employment, there being no suggestion that she was not capable of performing the inherent requirements of her current more senior supervisory position. Accordingly, the weight afforded this particular factor was much less than may otherwise have been the case.
Domestic and self-care tasks
48 The medical evidence and the doctors’ assessments of the plaintiff’s functional loss all indicated likely ongoing restrictions impacting on domestic/household activities. The doctors did not specifically comment on self-care tasks.
49 The plaintiff told the Court she was the main cook at home and did the food preparation, albeit with help from her children sometimes.[20] The strong impression given was that the plaintiff continued to be mainly responsible for performing all of the activities required to run a busy household, subject to the sorts of limitations mentioned by her in the affidavit evidence. For instance, the plaintiff probably does have trouble opening jars, peeling vegetables, using knives and scissors and doing her hair but she continues to perform these tasks and the other tasks also mentioned in the doctors’ reports.
Social/recreational pursuits
[20] TN 16
50 As mentioned, the plaintiff has re-partnered. She continues to socialise and, under cross-examination, confirmed she took leave and holidays, which were spent either interstate or in Victoria with family.[21] The plaintiff readily accepted the proposition that currently she leads: “a pretty full life, doing lots of work at work and social life, children, partner and so forth..”.[22] This is not to deny that, as emphasised during re-examination, the plaintiff probably has had to adapt how she performs specific activities in various areas of her life.[23]
[21] TN 16-17
[22] TN 19-20
[23] TN 21
51 Ten pin bowling, tennis and netball were the recreational activities the plaintiff nominated as having been lost to her by reason of long-term impairment of her right hand.
52 Netball was probably the most important of these activities because, in her further evidence-in-chief, the plaintiff said that prior to the accident she played this sport on average twice a week and up to 3 times a week during the season. The plaintiff explained that giving up this sport had been upsetting because she enjoyed playing netball, she enjoyed the social aspects of the game and her participation in this sport had helped her maintain fitness.
53 Under cross-examination, the plaintiff confirmed the accuracy of notes made by hand therapist in February and again in March 2009 indicating, among other things, that the plaintiff had played tennis and netball (the latter with her fingers taped) in February 2009 and netball (without her finger strapped) in March 2009.[24]
[24] PCB 18-19 and TN 17-19
54 The plaintiff also acknowledged that, as recorded by Mr Anstee, her concern about suffering further injury was the reason she stopped playing netball and tennis, not physical incapacity. Gripping the ball was, the plaintiff said, another problem as this affected her effectiveness as a shooter when playing netball.
55 During re-examination, the plaintiff told the Court that when she last played netball in 2009, her fingers had not been strapped and she had hurt her finger.
56 Based on the evidence summarised, I was not satisfied that pain or impaired function of the plaintiff’s right hand precluded a return to playing netball per se. This is not to deny that the plaintiff would probably need to strap her finger/s and consider playing in other positions if her accuracy as a shooter was a concern. Accordingly, for the purpose of this assessment, I have accepted that injury-related impairment of the plaintiff’s right hand probably impacted on her ability to play ten pin bowling, tennis and netball, without necessarily precluding a return to playing netball. Notably, the plaintiff told the Court she now keeps fit by attending gym on average three times per week.[25]
[25] TN 15-16
Conclusions
57 In conclusion I find that as a result of the accident the plaintiff suffered long-term injury to her dominant right hand. The impairment consequence of the injury suffered has been summarised above.
58 In assessing whether the pain and suffering consequence of the right hand injury met the “very considerable” test, I was required to consider globally all of the pain and suffering experienced by the plaintiff, to which this injury materially contributed.
59 The evidence relating to the impact of impairment of the plaintiff’s right hand on her day-to-day activities and enjoyment of life has been summarised. I have also summarised the evidence which indicated that the plaintiff managed her activities to accommodate the impairment of her dominant right hand.
60 The plaintiff clearly manages her pre-injury employment duties, again with adjustments to accommodate any discomfort as well as the impaired functioning of her right hand, but without the need to resort to pain relieving medication.
61 No doubt the plaintiff feels some disappointment and frustration in having curtailed some of her sporting activities, although fear of further injury to her finger/s appears to have driven, at least, the decision to give up netball altogether. The plaintiff probably has the capacity to play netball, albeit with the finger/s strapped and, having given up netball, she appears to have taken up regular gym work to maintain fitness. In all, the plaintiff has retained her active lifestyle including her capacity to engage in most of her social/recreational and domestic activities.
62 As mentioned, the test is whether the plaintiff has established that the pain and suffering consequence of injury to her right hand, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being more than significant or marked and as being at least very considerable. As the Court of Appeal has explained, applying this test involves a value judgement in which matters of fact and degree and of impression, all play a role.[26]
[26]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, [41]
63 However, my summary of the pain and suffering and loss of enjoyment of life consequence (in which the significance of what the plaintiff has lost was informed to some extent by what she had retained) did not indicate that by comparison with other cases in the range of possible impairments, the consequence so described could be fairly characterised as being more than significant or marked and at least very considerable.
64 I think it appropriate to indicate at this juncture that the outcome of this application would not have been different had I also made allowance for the alleged sensory loss and the possibility of osteoarthritic changes in the future and treated netball as an activity entirely lost to the plaintiff by reason of her injury.
65 The plaintiff’s application for leave is dismissed.
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