Stoddart v Tolhurst

[2013] VCC 1829

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-12-03898

CHRISTOPHER STODDART	Plaintiff
v
DARREN TOLHURST	Defendant

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JUDGE:

HIS HONOUR JUDGE JORDAN

WHERE HELD:

Melbourne

DATE OF HEARING:

15, 18 and 19 November 2013

DATE OF JUDGMENT:

21 November 2013

CASE MAY BE CITED AS:

Stoddart v Tolhurst

MEDIUM NEUTRAL CITATION:

[First Revision 26 November 2013]

[2013] VCC 1829

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:             Serious injury – injury to the right ankle
Legislation Cited:     Accident Compensation Act 1985, s134AB(16)

Cases Cited:Phelan v Transport Accident Commission [2013] VSCA 306; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46

Judgment:                 Leave granted to the plaintiff to bring proceedings for the recovery of pain and suffering damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C O’Sullivan	Zaparas Lawyers
For the Defendant	Mr T Ryan	Herbert Geer

HIS HONOUR:

1 This application seeks leave pursuant to s134AB(16) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for pain and suffering damages only. The injury relied on is to the right ankle impairing the function of the right lower leg.

2       The defendant admits that the plaintiff suffered a compensable injury.  The single discrete issue for determination is whether the consequences reach the test of “serious”.[1]

[1]Transcript (“T”) 12

3 I note the recent repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied the repeal. Nevertheless, clear, proper and adequate reasons are required. It has been said often that some serious injury applications involve a substantial amount of “value judgment” which does not, of itself, admit detailed reasoning that is explicit. Elements of fact degree and value judgment are involved in this case.[2]

[2]Phelan v Transport Accident Commission [2013] VSCA 306 at paragraphs 3 and 58

4       The plaintiff is aged thirty-nine years and is married with three very young daughters.  He did not complete Year 8 at school and was expelled for theft and other behavioural issues.[3]  He has a criminal history that includes imprisonment on a number of occasions.[4]  There is no criminal dishonesty history over the last fifteen years or so.  I find he has rehabilitated himself very successfully back into employment and a settled home life. 

[3]Defendant’s Court Book (“DCB”) 41

[4]Plaintiff’s Court Book (“PCB”) 6-7; DCB 42 and Exhibit 1

5       Over the years he has worked in various labouring-type jobs and he started with the defendant in May 2009 installing solar panels.  On 9 June 2010, he fell from a ladder and suffered the subject ankle and foot injury that saw him taken to the Angliss Hospital. 

6       The plaintiff was off work for some time undergoing various treatments and had to look for other employment.  He did a short construction course and together with different vehicle licences, he applied for many jobs.[5]  He found work in August 2011 but prolonged standing was a problem, together with difficulties driving heavy machinery for long periods.[6]  He needed to work for more than 40 hours a week in order to hold down one job driving a front-end loader but his local doctor would not clear him for such extended hours. 

[5]PCB 11

[6]PCB 11

7       I find he is a well motivated man who overcame a very significant back injury which required fusion surgery.  This injury occurred in 2002 and obviously took some years to recover from.  I accept he made a good recovery.[7]  He door knocked at times in order to find work and the current position that he holds is as a yardman working with some heavy vehicles in a business that produces bark from recycling timber.[8] He works very long hours,[9] and I accept that he has a very stoical attitude to his permanent foot and ankle problems in holding down this job over the last fourteen months or so.

[7]T62

[8]T42, T88-91, T105

[9]T44

8       The plaintiff suffers pain in his ankle all the time.[10]  The ankle area is sensitive, a bone protrudes, the foot swells if knocked or he stands for more than an hour or so and there is still visible discolouration.  These are permanent consequences of what was initially a fracture but involved also damage to the soft-tissue structures.[11] 

[10]PCB 9

[11]PCB 9

9       At the outset of this case, it was said that credit “will loom large”.[12]  I found the plaintiff a reliable witness.  He was genuine and very straightforward in relation to his previous extensive criminal history, as well as the difficulties he had following the serious spinal injury in 2002.  His affidavit and oral evidence reflects that candour.  In fact, his police record and use of marijuana is effectively the first paragraph in his affidavit[13] and have been frankly dealt with elsewhere.[14]

[12]T12

[13]PCB 6

[14]DCB 44, T47

10      In his affidavit in 2004, regarding the back claim, he also covered both topics quite openly in describing his earlier “aimless life”.[15]  Indeed, even speaking of theft at school, he volunteered information that is indicative of someone who at all times has been very upfront even about past events that must now be twenty-five or so years old[16] and probably known to virtually no one in present times.  He was very forthright about his use of marijuana.[17]

[15]DCB 42 and 44

[16]DCB 41

[17]PCB 6, DCB 44, T47

11      Some video evidence was shown that indicated the plaintiff squatting at a store.[18]  That video did not impact on his credit.  This is a man who works 50 odd hours a week in a manual job and such activity, while I accept it causes him some discomfort, is the sort of thing he must obviously do on a daily basis working around the yard as he does.  He admitted he squats.[19]

[18]Exhibit 2

[19]PCB 14, T96

12      There is really no medical debate in this case.  The injury largely speaks for itself.  There is really no treatment being advised to him now, some three-and-a-half-years after being injured, other than daily medication.  He takes Voltaren each day in the morning and two Panadols during the day.  He sensibly avoids taking Panadeine Forte because of the effects of such a narcotic when he is in and around, as well as driving heavy machinery.  He occasionally sees his general practitioner, Dr R Krigsman, and follows a self-funded gym program which the insurer apparently will not fund.  In the earlier days he required a CAM boot for some time and then that was followed by a long course of physiotherapy and referral for orthopaedic specialist opinion.

13      I find his treatment to date has been thorough and that the plaintiff has been a compliant patient who has sensibly followed medical advice and continues to do so, including taking daily painkillers and attending gym.  He still receives prescription drugs, as well as using over-the-counter medication.[20]  He endures constant pain.  He accepts that there is no other treatment really open to him and basically gets on with life, including at his place of employment.

[20]PCB 13-14, T36-37

14      The 5 April 2004 affidavit speaks of difficulties standing and other problems with respect to physical work on account of the back injury in 2002.  He also describes in that affidavit suffering constant back pain in those days.[21]  After he returned to work in 2007, following settlement of his back claim, he worked for about four employers for different periods up to the fall on 9 June 2010.[22]

[21]DCB 45

[22]PCB 7

15      A good deal of cross-examination took place with respect to the plaintiff’s taxation records which indicate that at times he has worked for wages and at other times has been effectively a subcontractor after a vocational rehabilitation firm advised him to get his own ABN number.  His motivation has been such that he did that and has been able to obtain work by taking that step. 

16      This man did not complete Year 8 at school and his understanding of his taxation records was minimal to say the least.  I in fact allowed him an extended luncheon adjournment in order to try and understand some of the figures that were being put to him, such was his palpable lack of comprehension of what his taxation agent was putting in those taxation returns.  He could not even follow a simple summary of those figures and the cross-referencing that the summary provided for him.[23]  He was very confused in the witnessbox about these documents even after some time spent perusing them.[24]

[23]T75-77 and Exhibit 3

[24]T39-40, T69, T74-76, T81, T85

17      This is a claim for pain and suffering leave only and I am not assisted by the taxation returns in view of the unchallenged evidence that the plaintiff has worked at various jobs since recovering from his back injury.  It is further unchallenged evidence that he has got back to work and has held his current manual job down now since August or September 2012. 

18      Furthermore, I find that the ankle injury he suffered when fifteen years of age may have involved a facture but was not troubling him in recent years.[25]  It is now almost twenty-five years ago that such injury occurred and his difficulty remembering detail about it did not reflect adversely on credit.  Similarly, cross-examination about what he had said to medico-legal doctors about an injury so many years previous from which he had made a full recovery, was not relevant to my assessment of this man’s veracity.  This case illustrated very clearly the advantage of hearing and viewing a witness under lengthy cross-examination doing his best to be accurate.[26]

[25]T61

[26]T59-61

19      Turning to the medical evidence, the hospital report really only records the injury.  The general practitioner provides three brief letters.[27] 

[27]PCB 32-35

20      Dr Krigsman, general practitioner, first saw the plaintiff on 10 June 2008 but there have obviously been a number of other doctors at that clinic that the plaintiff has seen over the years.  The little material from this local clinic really does not elaborate on consequences.  Nevertheless, important aspects are that the records include notation about a persistent swollen right ankle in March 2011, constant pain and limited movement.[28]  In September 2011, the insurer was requested by the general practitioner to provide an essential, ongoing, supervised gym program and hydrotherapy treatment in order to address the wasting in the right calf.  The limitation in mobility was noted, as well as some alteration in gait.[29]

[28]PCB 32

[29]PCB 34

21      In January 2013, the request was repeated to the insurer for ongoing treatment to be funded.[30]  It was physiotherapy at this time that the plaintiff needed to try and reverse the wasting.  It was also said “He is in constant pain at work and at home, he is trying to live with the pain but requires aids and analgesia as well”.[31]  The general practitioner’s letters are rather emphatic in the need for “essential” treatment.[32]  Clearly, the pain and loss of mobility are ongoing and little if any optimism can be read into this last letter in 2013. 

[30]T44-45

[31]PCB 35

[32]PCB 34-35

22      Mr P Byrne, orthopaedic surgeon, treated the plaintiff firstly on 17 June 2010, and he last saw him on 3 November 2010.[33]  He recorded the fracture in the ankle, severe swelling, marked tenderness and that various investigations were carried out.  Bone bruising was noted and uptake on bone scanning.[34]  Numbness was documented, together with ongoing pain and disuse osteoporosis also being suggested due to the limited weight bearing capacity since the accident.  I accept this evidence as clear, objective indicators of permanent damage to various structures around the right ankle and foot.

[33]PCB 38

[34]PCB 36

23      Continuation of physiotherapy was recommended.  There was no surgical option.  The surgeon thought at his last review that “… long-term prognosis was unknown”.[35]  Hopefully, he said the pain would settle but whether the plaintiff regained full movement was also unknown.  It could take eighteen months to better judge this and that would mean the end of 2011 before the plaintiff reached maximum recovery on that view.[36]

[35]PCB 38

[36]PCB 38

24      I accept that the plaintiff’s symptoms have been ongoing and indeed worsening since the end of 2011.[37]  I find that his condition is now stable and has been for the last two years. It will remain for the foreseeable future.

[37]T109

25      A referral then to Mr P Rice, orthopaedic surgeon, took place in April 2011.  He wrote to the general practitioner on 5 April 2011.  He recorded that following bone scanning, as well as CT and MRI scans, that they:

“… have demonstrated an impaction injury to the chondral surface of the talar dome, bone bruising of the medial malleolus and lateral malleolus with some medial and lateral gutter impingement and a significant anterior capsular tear, as well as a stretch of the superficial perineal nerve.”

26      Mr Rice also noted a deformity by way of a lunge on the right side.[38]  I accept that the damage to the plaintiff’s ankle and foot is extensive. 

[38]PCB 39

27      Mr Rice’s 28 March 2013 report goes into more detail of the damage in different areas and structures around the ankle joint.[39]  He there described:

“The diagnosis is of a right ankle lateral ligament complex tear and medial ligament complex tear with an associated ankle capsular tear and post-traumatic capsular fibrosis and stiffening of the ankle.”[40]

[39]PCB 40

[40]PCB 41

28      Treatment needs were ongoing, the surgeon thought, and he noted a number of ultrasound-guided injections into both the ankle and tibialis posterior tendon sheath.  His description of the MRI result indicated objective evidence of very widespread damage in and around the ankle joint.[41]  Post-traumatic stiffness of the ankle through the fibrosis of the capsule he noted was extremely difficult to treat.

[41]PCB 40

29      The surgeon gave a guarded prognosis:

“The prognosis is guarded at the moment as while Mr Stoddart still has an intact chondral surface of the tibial plafond and talar dome, the significant interruption to the biomechanics of his gait because of the capsular stiffness, a well predisposed Mr Stoddart to post-traumatic arthritis of his ankle.”[42]

[42]PCB 41

30      Overall, the treaters paint a bleak future of ongoing symptoms including pain and loss of mobility for a man who was only thirty-five years of age when injured.  There is little that medicine has to offer this plaintiff and I accept his condition is stable with a realistic prospect of post-traumatic arthritis developing.

31      Medico-legal opinion starts with Dr P Blombery, consultant physician, in June 2011.  He conducted a detailed examination which included some temperature change and stated:

“He has been left with ongoing pain in the area.  As well as pain, he has noted changes in temperature of the foot, which were also present in the course of examination, this combination of features of ongoing pain together with autonomic disturbance is diagnostic of complex regional pain syndrome, type 1, or as it used to be known, reflex sympathetic dystrophy.”[43]

[43]PCB 51

32      Dr Blombery said this was an organic disorder and suggested a good deal of treatment for this well-motivated man.  However, he was seeing him for medico-legal reasons and not for treatment. 

33      This doctor thought the plaintiff was precluded from work, unless it was light duties not involving a lot of weight bearing.  The prognosis was only moderate.[44]  He thought at the early stage when he saw him that there would be some improvement over the next six to twelve months. 

[44]PCB 52

34      Mr C Flanc, general and vascular surgeon, had seen the plaintiff in 2005 and 2006 for his back injury.  He was engaged again in June 2013 for this case.  He noted a limp, as well as slight suffusion, together with tenderness.[45]  He reviewed the extensive scanning and medical reports.  He diagnosed “… a serious soft-tissue injury involving the medial and lateral ligaments, and with some reference to spurring in two areas which may indicate the early onset of osteoarthritis”.[46]  He thought the plaintiff was genuine and well-motivated and he doubted the Complex Regional Pain Syndrome diagnosis. 

[45]PCB 58-59

[46]PCB 63 and 65

35      As to prognosis, he thought:

“Over two years have now passed since the accident and I believe that he will probably suffer from significant discomfort in the right ankle into the foreseeable future.”[47]

[47]PCB 65

36      The injury, he thought, made it very difficult for him to walk long distances or to perform any heavy activities.  He should not really be doing the work that he was performing at the present time given its physicality.[48]  Ultimately, he thought the plaintiff should see a surgeon again, more for investigation it seems, as he does not appear to offer any optimism in regard to future treatment as I read his lengthy report.[49]  It is clear he was concerned about the prospect of osteoarthritis this young man faced.[50]

[48]PCB 65

[49]PCB 66

[50]PCB 65

37      The most recent report is from Mr S Doig, orthopaedic surgeon, who saw the plaintiff on 30 September 2013.  He diagnosed that the plaintiff had an injury to the lateral ligament and a fracture of the ostrigonum or the talus.  He thought the x-rays and MRI scans showed “ongoing pathology” in that area.  Whether that is a reference to the onset of osteoarthritis or not is not made clear.  He considered that the injury was relevant to the plaintiff finding it harder to run and not returning to any sport. The significant restriction was consistent with the clinical assessment.  He said:

“I consider that the right ankle injury has significantly affected his enjoyment of life because he says that he is not able to do a lot of things that he used to be able to do.  There is no further treatment plan and therefore it is unlikely that he is going to improve in the foreseeable future.  He has certainly returned to work and is working full-time in full duties as a yardman.  He says that he is finding that increasingly difficult to do and I think that is not surprising in view of the clinical assessment of him today.”[51]

[51]PCB 54

38      Before moving to a consideration of the medical witnesses engaged by the defendant, it should be noted that the defendant’s argument that a lack of ongoing treatment is indicative of the plaintiff’s injury not being serious is not sound.  Mr Doig and others do not really refer to any treatment that the plaintiff has been referred to that he has not taken up nor indeed to any treatment that would make any significant difference to his situation.[52]  I find that the plaintiff has followed the medical advice that has been given to him and there is no reasonable prospect of improvement that medicine can offer.  Sensible self-management and using medication is all he can do to manage his daily life.

[52]PCB 38, 41, 54 and 64; DCB 7, 12, 15 and 24

39      Mr J Hooper, surgeon, saw the plaintiff for the defendant on 28 February 2011 which was only eight months or so after the injury.  Nevertheless, he thought the plaintiff had sustained a significant injury to his ankle that at that stage was resolving slowly.  Apart from a self-exercise program, he saw no further treatment indicated.  Even at that early stage he thought the plaintiff would have trouble doing heavy work or working involving climbing and squatting until the ankle improved, and he was only capable at that stage of suitable light work.  He felt he was unable to return to his pre-injury duties as a labourer.

40      Mr Hooper wrote a short letter in May 2011 in which he thought the self-exercise program should continue, as physiotherapy had no more to offer this man.  In his final report in September 2013, he now thought the injury was stable and it was unlikely to improve significantly.  His foot and ankle continued to be symptomatic.  He considered “… it is unlikely he will be able to get back to work that involves agility, climbing, squatting and getting into awkward situations”.[53]

[53]DCB 12

41      While this is not a claim for pecuniary loss damages, for a man who did not even complete Year 8 at school and who has a significant criminal record, this is a very serious impediment to his employability in the open marketplace.[54]

[54]DCB 8

42      I find that these are very considerable limitations on a man now only thirty-nine years of age in regard to both activities at work and in daily life when one considers the life expectancy he ought to be able to enjoy.[55]

[55]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 17

43      Mr Hooper concluded with a somewhat pessimistic statement:

“If his symptoms get worse and it can be demonstrated that he has sub-talar problems these may need to be investigated further on their merits.”[56]

[56]DCB 12

44      Mr B Dooley, orthopaedic surgeon, saw the plaintiff for the defendant on 21 July 2011 so his opinion is quite dated.  He did an AMA assessment that does not assist much in terms of assessing consequences in November 2013.  Nevertheless, at examination, he said there was obvious thickening in the deltoid medial ligament of the right ankle joint and hindfoot, together with slight discolouration in this area.  These, I accept, are objective signs of damage in the ankle and foot area.  He diagnosed:

“Severe soft tissue injury to the right ankle and hind foot affecting the medial ligament complex, ie. a deltoid ligament with possible undisplaced fracture of the medial malleolus.”[57]

[57]DCB 14

45      At this stage, some twelve months or so after the fall, Mr Dooley did not think the condition was fully resolved but he still gave the plaintiff a permanent AMA whole person percentage impairment.  Back then he did not think that the plaintiff would develop post-traumatic osteoarthritis; however, it is some two-and-a-half years now since Mr Dooley saw the plaintiff. 

46      Mr Gary Davison, occupational physician, examined the plaintiff on behalf of the defendant on 5 June 2012.  He thought the plaintiff had chronic foot pain and restricted movement in the right ankle and he doubted that the plaintiff’s capacity for work would alter to any great degree in the future.[58]  Self-managing treatment was appropriate.  He considered that the plaintiff could not return to his pre-injury duties.[59]  He put the following restrictions on work as being necessary in relation to alternative work:

[58]DCB 24

[59]DCB 22

“(i)  Avoid prolonged standing or excessive walking;

(ii)          Avoid squatting;

(iii)Avoid excessive use of stairs, ladders or walking on uneven ground;

(iv)Manual handling should not exceed 15kg in force or weight; and

(v)Self-paced duties.”[60]

[60]DCB 23

47      I accept that for this young plaintiff he has a condition that has led to consequences such as those restrictions which not only very seriously impede his capacity to work as an unskilled man, but also impact of necessity on very much of active daily life.  These are permanent consequences that are very considerable.  Limitation on prolonged standing is very considerable in itself.

48      There are two further short letters from Mr Davison which really invite his comment on some suggested alternative jobs.  He found some of those suggestions appropriate but others, such as truck driving and forklift driving, were not suitable.[61]

[61]DCB 34 and 36

49      Dealing with all the medical evidence in relation to the plaintiff’s injury, in a case in which an attack on his credit was mounted, it is worth noting that there is no doctor on either side who in any way questions the genuineness of the plaintiff.  There is no doctor who points to any overreaction or inappropriate behaviour at examination.  There is no doctor who suggests he is in any way exaggerating his complaints or limitations.  In view of this and my acceptance of the plaintiff as a reliable witness, I reject the defendant’s argument that the absence of lay corroborative evidence is relevant.

50      Mr Flanc thought that the severity of his pain seemed greater than one would expect at examination, but nevertheless found “I believe that Mr Stoddart is genuine when he claims that he is suffering some severe pain in the ankle and foot, and he is clearly highly motivated for work”.[62]  I read the comment of Mr Flanc as not being in any way a criticism of the plaintiff’s credit.   Rather, he found some difficulty in precisely diagnosing whether the genuine pain arose from the serious soft-tissue injury he spoke about or from the early onset of osteoarthritis.

[62]PCB 63

51      A body of material has been tendered by the defendant relating to the plaintiff’s serious back injury in 2002.[63]  These reports do not assist, as I accept the plaintiff’s evidence that he had recovered from his back injury.  Indeed, by 2007, he had got back to house demolition work.[64]  On any view, this was work of a very heavy nature.  In spite of all the impediments of a lengthy criminal record and a spinal fusion, this man had been motivated enough to find work and demonstrated a capacity to carry out unskilled physical work before the subject ankle injury. 

[63]DCB 48-70

[64]T62

52      I reject the defendant’s argument that while there is some similarity between symptoms he complained of and consequences arising from the spinal injury eleven years ago, that this in any way diminishes from the significance of similar consequences that he now must endure arising from the ankle injury.  I find he had recovered from the spinal injury by 9 June 2010. 

53      The argument that because the plaintiff has returned to work and is working long hours again, does not convince me that the plaintiff’s injury is anything other than serious.  It is clear that the fact that the plaintiff has returned to alternative work is not determinative against a worker on the issue of pain and suffering consequences.  In some circumstances it can tend against a conclusion that those consequences are serious, but the whole of the evidence must be considered.[65]  The return to work must be considered in the context of the impact of the pain on his capacity to work, as well as on the ordinary activities of life.[66]

[65]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 [2009] VSCA 181 at paragraph 47

[66]Aburrow v Network Personnel [2013] VSCA 46 at paragraph 20

54      I find that this plaintiff continues to work because he is a stoic.  He takes medication in the morning, and he needs such medication in order to carry out his work.  He has an ankle condition that is getting worse in terms of pain since starting the job with Bark King and that is consistent with medical evidence.[67]  He has gone from a man who had no restrictions with respect to this ankle in relation to work, to a man who now finds his ankle is always swollen and painful after work.  There are a number of activities at work that he knows will heighten symptoms.[68]

[67]T109

[68]T96; PCB 10-11

55      His return to work needs to be put in context.  Evidence is not challenged that he cannot work the 12-hour days.[69]  I accept he has already lost one job due to the ankle injury.[70]

[69]T104

[70]T108

56      I accept there have been very considerable consequences in relation to both his work and daily life.  The areas that are relevant to such an assessment have been listed.[71]  I find that his sleep has been impacted on significantly.[72]  He sleeps with a pillow between his legs.  His mobility is significantly impaired.[73]  He tries to compensate for this by compromising on the type of footwear that he chooses.  The things he can do around the household and his family by way of duties are limited by his pain.[74]   Recreational activities have been hampered by the pain and loss of mobility.[75]  In addition, I accept his social activities and his ability to engage in the activities that he wishes to enjoy with his three young daughters have been very considerably compromised for this relatively young father.[76] 

[71]Aburrow v Network Personnel (supra) at paragraph 20

[72]PCB 10, 15

[73]PCB 10, 14

[74]PCB 9-11

[75]PCB 11

[76]PCB 11

57      I reject the defendant’s argument that the plaintiff’s credit or motivation has been impugned by the IPAR documents.[77]  He is back doing long hours at work and coping with a swollen painful ankle.[78]

[77]DCB 37.1 - 40

[78]PCB 14; T96

58      On account of his motivation to keep going, the very severe restrictions put on this man’s capacity to work do not enable granting leave for pecuniary loss damages.  However, I find the consequences in relation to his impaired capacity for a young family man are relevant to loss of enjoyment of life, especially in view of the difficulties he has had in obtaining and retaining employment. 

59      I find the consequences of daily pain which he endures bravely of itself is a very considerable consequence when the probability is it will be lifelong. 

60      I further accept that the impact on his ability to sleep and his daily life around his home and family qualify also as very considerable in the circumstances of this case.  Even for a young person to have to wear a particular type of footwear and to avoid other types, cannot lightly be dismissed.[79]

[79]PCB 10, 14-15

61      Accordingly, for the reasons I have mentioned, I find that the plaintiff has discharged the onus of proving consequences resulting from his compensable injury that can fairly be described as “at least very considerable”.  I grant leave to the plaintiff to bring proceedings for the recovery of pain and suffering damages.

62      I will hear the parties as to costs.

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