Balmocena v Transport Accident Commission
[2017] VCC 1352
•22 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-05803
| PEDRO BALMOCENA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 August 2017 | |
DATE OF JUDGMENT: | 22 September 2017 | |
CASE MAY BE CITED AS: | Balmocena v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1352 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the spine and left and right shoulder – consequences
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Petkovski v Galletti (1994) 1 VR 436; Barlow v Hollis (2000) 30 MVR 441; Guppy v Victorian WorkCover Authority [2010] VSCA 164; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249; Bezzina v Phi [2012] VSCA 161; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Transport Accident Commission v Zepic [2013] VSCA 232
Judgment: Leave is granted to the plaintiff to bring proceeds for damages in relation to injury sustained in the transport accident
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr D James | Hymans Solicitors |
| For the Defendant | Mr G Lewis QC with Ms J Clark | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 18 August 2012 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
4 The loss of body functions relied upon in this application is the spine, the left shoulder and to a lesser extent, the right shoulder.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon four affidavits: three sworn by the plaintiff on 26 October 2016, 15 February 2017 and 9 August 2017. In addition, the plaintiff relied upon an affidavit of his daughter, Amor Balmocena, sworn 9 August 2017.
7 The plaintiff was cross-examined. I have not summarised his evidence; however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all of the tendered material.
Relevant legal principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities that:
(a) the injury suffered by the plaintiff was as a result of the transport accident;
(b)the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
9 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak[1] where the majority of the Court of Appeal said:
“We think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s.(4)(d) when reliance is placed upon sub-s(17)(a) may be stated in the following terms: he is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[1][1992] 2 VR 129
[2] Humphries & Anor v Poljak (supra) at 140
10 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[3]
[3] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
11 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[4]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[4][1998] 1 VR 702
12 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[5]
[5](Supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29]
13 The wrongdoer must take the victim as he finds him or her; he must compensate only for the damage he has caused.
14 Based on Petkovski v Galletti,[6] an analysis has to be made of the extent of impairment of the body function before and after the relevant injury and the additional impairment has to involve serious long-term impairment of body function.
[6] [1994] 1 VR 436 and affirmed in Guppy v Victorian WorkCover Authority [2010] VSCA 164
15 Where the claimant has an injury with numerous consequences, he or she must establish at the time of applying for leave that the injury which has been caused by or is the result of the accident is a serious injury. In this case, where the plaintiff claims a number of body functions, it is not permissible to aggregate several impairments or injuries to several body functions, which are not serious into an overall, serious impairment.[7] The spine is a single body part.[8]
[7]Humphries v Poljak (ibid)
[8]Transport Accident Commission v Zepic [2013] VSCA 232 at paragraph [138]-[139]
The issues
16 Counsel for the defendant informed the Court that the following issues were relevant to the plaintiff’s application:
(a) The plaintiff had not adequately disclosed his prior problems relating to his spine and shoulders to medical witnesses;
(b) In assessing the pain and suffering consequences of an injury, the plaintiff is required to exclude the physical or organic basis of his complaints from those which are non-organic such as are referred to by Mr Dooley, orthopaedic surgeon, and Mr Kudelka, orthopaedic surgeon, in accordance with Meadows v Lichmore Pty Ltd;[9]
[9][2013] VSCA 201(22 July 2013)
(c) This is an aggravation case and the principles in Petkovski v Galletti[10] are not met. The aggravation, if any, due to the transport accident, does not meet the test of seriousness as formulated by the Court in Humphries & Anor v Poljak;[11]
[10]supra
[11] ibid
(d) It is necessary to disentangle the injuries which arose from the transport accident, namely, the claimed impairments from the spine from those claimed impairments from the left and, to a less extent, the right shoulder; and
(e) In any event, the plaintiff does not meet the relative definition of “serious injury”, in that the plaintiff’s impairment is not “at least very considerable” in accordance with Transport Accident Commission & O’Dea v Dennis.[12]
[12]ibid
The Plaintiff’s evidence
17 The plaintiff is aged seventy-five. He is married to Ascunsion Balmocena and has a daughter, Amor, aged forty-six, and a stepson. Prior to coming to Australia, the plaintiff worked as a seaman on a merchant ship. He was born in the Philippines and migrated to Australia in 2002.
18 He worked as a cook and cleaner in an aged care facility in Australia. In his first and second affidavit, the plaintiff deposed that, prior to the transport accident, he was in reasonably good health for his age, with some niggling pains from time to time but nothing serious and nothing like the pain he now suffers.[13]
[13]Plaintiff’s Court Book (“PCB”) 10, 14
19 The plaintiff gave his evidence in a candid and forthright manner and made appropriate concessions.
20 Between April 2003 and August 2014, the medical evidence shows that the plaintiff attended the Box Hill Medical Centre and, in large part, consulted Dr Mervat Malek. These records were produced and before the Court. The records confirm that, between August 2004 and November 2006, the plaintiff reported neck pain on 22 November 2005, back pain on 6 and 2 August 2004 and was prescribed Vioxx on both occasions. He reported left shoulder pain on 21 August and 25 November 2004. In August 2004, the plaintiff underwent x‑rays of the lumbar spine, thoracic spine and left shoulder. In December 2004, an ultrasound was performed on his left shoulder. The plaintiff was working as a cleaner and, on a number of occasions during that period, he was certified as unfit for work. The medical certificates stated that he was unfit for work because of back and left shoulder pain and later uncontrolled hypertension was added. The medical records confirm that the plaintiff was more actively being treated for hypertension/diabetes than back and left shoulder pain.
21 In October 2005, the plaintiff underwent a functional capacity evaluation report performed by Annie Moller, physiotherapist, with a view to making recommendations regarding his work capacities based on physical tolerances and abilities.[14] In the report, Ms Moller noted that the plaintiff was a sixty-three-year-old male with multiple musculoskeletal and medical issues. She sought further clarification from the treating doctor, Dr Malek, relating to the medical issues of hypertension, liver disorder and diabetes. In respect to the musculoskeletal issues alone, Ms Moller stated that the plaintiff would be rated as being capable of part-time sedentary work with specific limitations.[15] Further, she said that a review with the treating doctor and consideration of medical factors may mean that this work capacity was downgraded.[16]
[14]Defendant’s Court Book (“DCB”) 24-30
[15]DCB 29
[16]DCB 30
22 As aforementioned, counsel for the defendant submitted that the medical certificates lodged with Centrelink in 2004 and 2005, which referred to the plaintiff suffering “back and left shoulder pain”, was evidence that the plaintiff had a pre-existing back and shoulder condition. Further, that the plaintiff had not disclosed this condition to the medical practitioners who examined him, that those medical practitioners were not properly instructed on the extent of the plaintiff’s pre-injury condition and that their reports were therefore not accurate. I will address this submission in detail.
23 First, the medical records of the Box Hill Medical Centre do not support the fact that the plaintiff was receiving treatment on a regular basis for his back and left shoulder over the period August 2004 to November 2006. In fact, the plaintiff reported back pain and left shoulder pain on two occasions in August 2004 and was prescribed Vioxx on both occasions. In November 2004, he reported left shoulder pain and was referred for an ultrasound of the left shoulder. Throughout the period from August 2004 to November 2006, the plaintiff attended the medical centre on numerous occasions and was treated for and prescribed medication for unrelated medical conditions, in particular hypertension and diabetes. I note that the medical certificates produced and before the Court were unreadable in parts due to being photocopied.
24 Counsel for the defendant took the plaintiff through the Box Hill Medical Records and medical certificates in cross-examination. The plaintiff agreed that the certificates were completed with the help of his doctor and physiotherapist and to be lodged with Centrelink.[17]
[17]Transcript (“T”) 17
25 It is useful to consider the plaintiff’s medical certificates in light of the Box Hill Medical records. The plaintiff attended on Dr Malek on 21 February 2005 and was issued a medical certificate for back pain and left shoulder pain.[18] However, Dr Malek’s records do not have a corresponding reference that the plaintiff experienced back and left shoulder pain upon examination.[19] Medical certificates were provided for the plaintiff on 23 May 2005 and 23 August 2005 for back pain and left shoulder pain, which were not recorded in the medical records, as well as hypertension, for which the plaintiff was in fact being treated as per the medical records.[20] On 22 November 2005, the plaintiff reported complaints of neck pain.[21] A medical certificate was issued to the plaintiff for both back and left shoulder pain and hypertension.[22] On 22 August and 20 November 2006, medical certificates provided for the plaintiff stated both back pain and hypertension[23] but the records indicate that the plaintiff was being treated for hypertension and diabetes only.[24] In my view, at its very highest, the evidence shows that the plaintiff received limited treatment for his neck, back and left shoulder pain during the period of August 2004 to November 2006. I note that any treatment that the plaintiff received at this time was six years prior to the transport accident.
[18]DCB 137
[19]DCB 52
[20]DCB 138
[21]DCB 49
[22]DCB 141
[23]DCB 142-143
[24]DCB 45-46. The medication prescribed was in large part for hypertension and blood pressure.
26 The evidence shows that the plaintiff made two further attendances on Box Hill Medical Centre, which was in August 2012 to report the transport accident and to report “mild neck ache” on 9 August 2014.
27 Between November 2006 and September 2010, records show that the plaintiff was treated for unrelated matters and there was no record of the plaintiff reporting back, neck or shoulder pain.
28 Since 2010 to date, the evidence is that the plaintiff now attends the Doncaster Medical Centre[25] and has predominantly attended on Dr Eric Choo. The records of Doncaster Medical Centre were before the Court. Those records confirm that, in May 2011, the plaintiff consulted Dr Choo in regard to upper back pain. He received a steroid injection with good results. In August 2011, the plaintiff reported sore left shoulder for two weeks.
[25]Also known as the Devon Medical Centre
29 I accept that the medical records of both Box Hill Medical Centre and Doncaster Medical Centre confirm the plaintiff’s evidence that he suffered intermittent spinal pain and left shoulder pain prior to the transport accident.
30 Some of the medical witnesses obtained a history of pre-accident pain. Mr Brearley obtained a history of the plaintiff complaining of neck pain in March 2011 for which he received a steroid injection and was prescribed analgesics. The plaintiff said the problem with his neck was short-lived at that time. Mr Brearley noted that there was no professional interpreter present upon either examination in 2016 and 2017 and that history taking was accordingly difficult.[26]
[26]PCB 53. I also note that his niece, Anita, assisted with interpretation
31 Mr Dooley recorded a past history that the plaintiff had been generally fit and well in the past, that he used to be active and that he is being treated for high blood pressure.[27] Counsel for the defendant submitted that the plaintiff did not tell Mr Dooley of his prior problems with his shoulder, neck and back. The plaintiff said that he did tell Mr Dooley that he had a problem with his shoulders, neck and the pain up to his head, whether or not it was recorded.[28]
[27]DCB 19
[28]T24
32 Mr Kudelka, orthopaedic surgeon, obtained a history from the plaintiff that, prior to the transport accident, the plaintiff had been “well”. He recorded that the plaintiff said he felt immediate pain in his neck, back and shoulders due to the transport accident.[29] He made a clinical judgment that the plaintiff would have some restriction of function due to degenerative changes in the dorsal spine prior to the transport accident. He was aware of the x-rays of 2004 relating to the shoulders, which he reviewed and noted degenerative changes. He was also aware that the plaintiff had received injections for the neck.[30] In cross-examination, the plaintiff agreed that he did not mention his past pain in his neck, back and shoulder to Mr Kudelka.[31]
[29]PCB 45
[30]PCB 37
[31]T22
33 I note that the plaintiff disclosed prior conditions of back and bilateral shoulder pain to the Transport Accident Commission in his Claim Form.[32]
[32]DCB 5
34 Taking into account the above evidence, I do not accept counsel for the defendant’s submission that the plaintiff did not adequately disclose his prior problems relating to his spine and shoulder to medical witnesses.
The spine
35 I shall now consider whether the loss of body function of the spine amounts to a “serious injury”.
(a) Post the transport accident
36 In September 2012, the plaintiff reported the transport accident to Dr Choo, his general practitioner, complaining of neck pain.[33] He was prescribed analgesics of Tramal, steroid injections and referred to physiotherapy. Dr Choo said the plaintiff had virtually no pre-injury symptoms of neck, back and shoulder pain. He said that the X-rays, CT scan and MRI scan showed no evidence of major degenerative disease in his neck, shoulders and back. Dr Choo opined that that the transport accident aggravated the pre-existing degeneration in the spine. It also initiated the soft tissue injuries in the neck and shoulders. He concluded that there was little doubt that the transport accident was the major or only factor in the onset of symptoms in the plaintiff’s neck, back and shoulders.[34]
[33]PCB 37
[34]PCB 44
(b) Current evidence
37 The current evidence in relation to the spine is as follows.
38 Mr Kenneth Brearley, surgeon, examined the plaintiff in September 2016 and April 2017. It was his opinion the plaintiff suffered an aggravation of pre-existing disc and facet-joint degenerative changes, particularly at the C3-4 and C4-5 levels, resulting in chronic ongoing neck pain.[35] He was aware that the plaintiff had an episode of neck pain prior to the transport accident, which was dealt with by analgesics and a steroid injection by his general practitioner.
[35]PCB 54
39 In April 2017, Mr Brearley said there had been no improvement in the plaintiff’s condition nor had there been any deterioration.[36] It was his view the transport accident was a significant contributing factor to the plaintiff’s cervical spine symptoms. He said the cervical spine injuries are, to a significant extent, degenerative, and the changes will progress with his age and further interfere with his life in general. He said the transport accident would have caused some acceleration of the age-related changes in the C3-5 and C4-5 levels. Significant trauma was applied to the cervical spine at impact and this would aggravate the degenerative changes already present.
[36]PCB 57
40 In June 2014, the plaintiff was examined by Dr Elder, consultant in occupational and environmental medicine, on behalf of the Transport Accident Commission. Dr Elder provided an impairment assessment. He said that the plaintiff had a pain behaviour.
41 In June 2017, Mr Dooley, orthopaedic surgeon, examined the plaintiff. He said the mechanism of the transport accident would be consistent with the plaintiff’s soft tissue injuries to the spine.[37] He believed that the injuries would involve some muscular damage and some aggravation of underlying degenerative disc disease. Based on radiology, he described the changes of the degeneration as being mild compared to others of similar chronological age. Mr Dooley said he would expect significant pain initially but expected pain to improve over a three-month period. He then would expect a patient to notice ongoing intermittent residual pain. He noted that it was five years since the transport accident and that, clinically, there was no sign of objective neurological deficit affecting the limbs. Radiologically, there was no evidence of neural compression. He said there were inconsistent signs on clinical examination. He considered the constancy and intensity of the plaintiff’s pain is greater than one would expect to see for his organic condition. Mr Dooley believed the plaintiff had a psychological reaction to his situation which dominates his current presentation.
[37]DCB 21
42 Of the current medical evidence, Mr Dooley was the only medical witness to suggest that the plaintiff had a psychological reaction. I note that Mr Dooley is an orthopaedic surgeon who examined him on one occasion. There was no evidence that the plaintiff consults a psychologist or psychiatrist. Further, the plaintiff’s treating general practitioner, Dr Choo, who treats the plaintiff regularly, and Mr Brearley, who examined him on two occasions, accepted that the injury was organically based. In fact, Mr Brearley noted on the second examination that there had been no improvement in his condition nor had there been any deterioration.
43 Accordingly, based on the evidence of Dr Choo and Mr Brearley, who treated and examined the plaintiff on more occasions than Mr Dooley, I accept that there is a substantial organic basis for the pain and suffering consequences.
Aggravation injury
44 All current doctors, being Dr Choo, Mr Brearley and Mr Dooley, considered there had been an aggravation injury to the plaintiff as a result of the transport accident. Dr Choo and Mr Brearley said the transport accident aggravated the pre-existing degeneration of the spine. Mr Dooley said there had been some aggravation of an underlying degenerative disc disease.
45 In respect of an aggravation to a pre-existing condition, Southwell and Teague, JJ in Petkovski v Galletti,[38] said the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The court said:
“… a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment … .” [39]
[38][1994] 1 VR 436
[39]Petkovski v Galletti (supra) at 443
46 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve a serious long-term impairment or loss of a body function.
47 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the transport accident is serious and long-term.
48 I accept that, at the time of the transport accident, the plaintiff had some level of pain in his spine, which was at a low level for which he did not seek regular medical treatment. He was able to engage in activities of lawn mowing, gardening, cooking and assisting his wife with a range of household activities. Now, the plaintiff suffers ongoing pain for which he requires medication on a daily basis, his recreational activities are affected, he can no longer garden, assist his wife with cooking and cleaning, attend church independently, care for his grandchildren, his sleep is affected and he encounters difficulties with personal care activities. Accordingly, on a Petkovski v Galletti[40] analysis, the impairment is referrable to the transport accident.
[40]Supra
Consequences
49 It is now necessary for me to consider whether the pain and suffering consequences the plaintiff now suffers as a result of the transport accident, satisfy the statutory criterion, then the plaintiff will succeed without the need for any disentanglement of the physical contributions to the pain and suffering from the psychological contributions.[41]
[41]Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraph [21]
50 I shall now consider the consequences of the spine alone.
Pain
51 The plaintiff described the pain in his spine as ongoing. The plaintiff said that since the transport accident, he has been in severe pain.[42] In his most recent affidavit, he said the pain is always there and can be described as a dull ache. In re-examination, he said the pain is more severe and he has difficulty moving his neck.[43] He takes Tramadol and Mobic medication for his pain, which assists in lowering the level of pain. The plaintiff’s evidence was that if he takes too much Tramadol, it causes constipation, so he takes Panadol regularly, even though it is not as effective as Tramadol or Mobic. The plaintiff reported pain to Mr Brearley. He described the pain as virtually all the time in the neck.[44]
[42]PCB 14 at paragraph [9]
[43]T37
[44]PCB 51
52 I accept that the level of pain the plaintiff suffers is at the higher end of the range. I have considered the level of pain in the spine alone.
Treatment
53 The plaintiff’s evidence is that he is currently being prescribed Tramadol, one tablet twice daily, and Mersyndol, twice daily, for the pain. The Tramadol causes constipation and wherever possible, he tries to minimise its consumption and substitutes with multiple tablets of Panadol which are not as effective at relieving the pain but have fewer side effects. The plaintiff has been prescribed injections from his general practitioner, which provide some temporary relief but do not assist in the long term.
54 The plaintiff reported to Mr Brearley that he was taking Panadol daily. Mr Brearley said the plaintiff required ongoing conservative treatment with medication, physiotherapy and a home exercise program. The plaintiff’s evidence was that he attended physiotherapy but physiotherapy was ceased by the Transport Accident Commission.
55 I accept that, as a consequence of the transport accident, the plaintiff now requires treatment in the form of medication, physiotherapy, an exercise program and injections, which I can take into account.
Recreational activities
56 The plaintiff’s evidence was that prior to the accident, he used to enjoy going to the beach with his wife, walking, and would assist his wife with the shopping. He was looking forward to quiet and enjoyable final period but that these activities and expectations are denied now to him.
57 Since the transport accident, he has difficulty walking because of the pain in his back and cannot walk for long periods of time. He used to enjoy shopping with his wife and having a coffee afterwards. Now when they go shopping, they only buy essential items so that he does not have to carry heavy items home. Now, he cannot stand or walk for long periods of time. After standing or walking for around ten minutes, the pain develops in his spine. He spends most of the days at home watching television to avoid aggravating his spine. In cross-examination, the plaintiff agreed that he has been to the Philippines three times since the transport accident in order to visit family.[45]
[45]T35
58 The plaintiff said that, in the past, he and his wife would go out and visit family and friends, even day trips, but now they stay at home as his injuries stop him from assisting his wife get around in public.
59 Mr Brearley said the plaintiff will require domestic assistance. Mr Dooley accepted the plaintiff would have difficulty with heavy physical activities and with active impact leisure pursuits.
60 I accept the consequences to the plaintiff’s recreational activities are in the middle of the range, which I can take into account.
Gardening
61 The plaintiff’s evidence was that, since the transport accident, he has had to hire a gardener to cut the grass and weed the garden as he is unable to bend down to weed the garden nor use the lawnmower due to the lower back pain. I accept that this is a consequence, which I can take into account.
Cooking and cleaning
62 The plaintiff’s evidence was that he used to assist his wife with cooking and cleaning. He is unable to do this any longer and his daughter, wife and friends assist. I accept that this is a consequence, which I can take into account.
Attending church
63 The plaintiff’s evidence is that he used to attend mass regularly but cannot do so anymore as he cannot sit on the church pews as they are hard and aggravate the pain in his spine. He encounters difficulty getting in and out of church pews. The plaintiff’s evidence was supported by the evidence of his daughter, Amor. She deposed that, prior to the transport accident, her father was able to attend church regularly, travelling by bus. Now, he only goes to church when she is able to go with him, as the bus ride affects his spine. I accept that this is a consequence, which I can take into account.
Caring for his grandchildren
64 The plaintiff’s evidence is that he is no longer able to play freely with his young grandchildren. This was supported by the evidence of his daughter. She said that the plaintiff used to help babysit her children while she was at work. He can no longer assist her with babysitting as his injuries stop him from keeping up with the children. I accept that his relationship with his grandchildren is affected by the spinal injury he suffered in the transport accident and this is a consequence I can take into account.
Personal care
65 The plaintiff’s evidence is that he has difficulty with personal care activities. When showering, he now uses a chair as standing for long periods of time caused pain in his spine. He takes longer to shower. He used to have long showers to temporarily relieve the pain. He has difficulty putting on his trousers. He needs assistance with dressing himself because of his neck pain. He has difficulty using the toilet. Bending over to clean himself causes pain in his spine. I accept that these are consequences which I can take into account.
Sleep
66 The plaintiff’s evidence is that his sleep is affected due to the pain. He walks around the house to take his mind off the pain and, when he does fall asleep, he often has a light sleep, as he is tossing and turning in bed due to the pain. The plaintiff’s evidence is that he now takes medication to assist him with sleep. He said he is often moody in the mornings due to lack of sleep. The plaintiff’s daughter confirmed that on occasions, in the mornings, she has noticed her father is in a bad mood, which he told her was due to lack of sleep. The plaintiff’s evidence was that prior to the transport accident his sleep pattern was better. He did not suffer pain and was able to get to sleep. I accept that sleep is a consequence, which I can take into account.
Future
67 Both Dr Choo and Mr Brearley said the plaintiff’s physical activities will get more curtailed with time and will further interfere with his life in general. I accept this is a consequence, which I can take into account.
Conclusion
68 I accept the plaintiff has suffered the above-mentioned consequences as a result of the injury to his spine alone. Those consequences are supported by the evidence of the plaintiff, his daughter and the medical evidence. I accept that the plaintiff was an active seventy-year-old man at the time of the transport accident. The plaintiff is now seventy-five years old. To all intents and purposes, he lives with his current situation. However, he can no longer assist his eighty-year-old wife with cooking and domestic activities. They are now reliant on assistance from family members. He can no longer garden, care for his grandchildren, attend church as regularly as he once did and undertake recreational activities. He is no longer independent.
69 I am satisfied the plaintiff was involved in a transport accident, which resulted in him experiencing symptoms of a physical nature. Taking into account all the evidence, namely his experience of constant pain, the level of the medication, the effect upon his recreational and domestic activities, the consequences of his spinal injuries have impacted upon his life as he knew it before the transport accident. He has suffered for five years and the medical evidence is that it will continue. I accept the plaintiff’s spinal injuries are long term.
70 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to him of his impairment can reasonably be described as being “serious”. I have only considered the consequences of the injury to the spine. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal but rather attributed appropriate weight to each consequence in light of the evidence.
71 I accept the spinal injury has consequences to this plaintiff that, when judged by comparison with other cases in the range of possible impairments, can be described as “more than significant or marked” and can fairly be described as “at least very considerable” when judged by comparison with other cases in the range of possible impairments.
72 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to injury sustained in the transport accident.
73 I will now hear the parties on costs.
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