Borg v Transport Accident Commission
[2013] VCC 1096
•4 September 2013
| 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-11-02929
| FRANCIS BORG | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 August 2013 | |
DATE OF JUDGMENT: | 4 September 2013 | |
CASE MAY BE CITED AS: | Borg v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1096 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport Accident – serious injury – consequences of injury – whether the consequences of the plaintiff’s neck injury were, when compared with other cases in the range of possible impairments or losses, fairly described as “at least very considerable”
Legislation Cited: Transport Accident Act 1986
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Leave to the plaintiff to bring a proceeding to recover damages in respect of injuries suffered by him in a Transport Accident on or about 19 February 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni SC with Mr S Loftus | Nowicki Carbone |
| For the Defendant | Mr J Philbrick SC with Mr S Smith | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 On 19 February 2009, Francis Borg was the driver of a motor vehicle which was involved in a transport accident (“the collision”). He alleges that as a consequence of the collision he has suffered an injury to his cervical spine and also an Adjustment Disorder with anxiety and depressed mood.
2 Mr Borg seeks the leave of the Court to issue a proceeding to recover damages in respect of those injuries.
3 His right to do so is governed by the provisions of s93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, Mr Borg must satisfy the Court that he has suffered a “serious injury” in the collision.[1]
[1]Section 93(6) of the Act
4 The term “serious injury” is defined in s93(17) of the Act (insofar as is relevant to this application) as:
“(a) serious long-term impairment or loss of a body function; or
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
5 In order to succeed in his application, Mr Borg must satisfy the Court that the injury to his cervical spine and/or his Adjustment Disorder are “serious”.
6 In order that an injury be considered to be “serious”:
(a)the consequences of the injury must be serious to the particular applicant;
(b)those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)the question to be asked is whether the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as “at least very considerable and more than merely significant or marked”.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at [140]
7 Mr Borg alleges that the consequences of his injury satisfy that threshold test as being “at least very considerable”. The defendant denies that this is so. It is this issue which falls to be determined.
Background
8 Mr Borg is currently aged sixty. He was born in Malta and was educated up to fifth grade, finishing when he was aged about fifteen. In Malta, he worked in a number of factories.
9 He came to Australia in 1973 when aged about twenty. He worked as a crane driver. He returned to Malta in about 1980 to help his father in his business. Three years later, he returned to Australia. He commenced work for Dunlop.
10 In 1984, about six to eight months into his employment with Dunlop, he sustained an injury to his low back at work. Effectively, he has not worked since that time. He applied for and was granted a Disability Pension, of which he is still in receipt.
11 On 30 December 2008 (about seven weeks before the collision) Mr Borg attended upon his GP Dr Lifson complaining of right-sided neck pain for the previous six weeks. He told him it came and went. Dr Lifson found no neurological signs and prescribed Voltaren (anti-inflammatory medication). He did not attend again at the clinic until after the collision. Mr Borg stated that the symptoms for which he had consulted Dr Lipson at that time recovered prior to the collision.
The collision
12 On 19 February 2009, Mr Borg alleges that he had pulled up behind another vehicle at an intersection where they were waiting for a green light. Whilst stationary, another vehicle collided heavily with the rear of his vehicle. His vehicle was pushed forward and collided with the 4-wheel drive vehicle in front of his vehicle.
13 The circumstances of the collision and issues as to who was to blame for it are not issues to be determined in this application. There may well be real issues concerning whether or not the vehicle driven by Mr Borg had collided with the rear of the vehicle in front of his prior to the vehicle behind making any contact, and as to whether the contact from behind was heavy or light.
14 Photographs of the front and rear of Mr Borg’s vehicle taken some time after the collision were tendered by the defendant. It was said that these photographs were tendered not in order to determine issues of negligence relating to the collision but merely in relation to the credit of Mr Borg generally. In addition, affidavits of Leigh Dunster, Sebastiano Maugeri and Maria Maugeri (said to have been nearby when the collision occurred) were also tendered in relation to that issue. Having looked at the photographs and the affidavits, I am not able to say that they enable me to decide, one way or the other, if Mr Borg’s evidence as to the circumstances of the accident is correct. The circumstances of the accident might be the subject of expert evidence at a trial for damages. It is not necessary that I make any determination in relation to these issues in this application.
Post-Collision events
15 After the collision, Mr Borg consulted Dr Lifson. At the time, he was experiencing pain in his right shoulder and cervical spine. He was prescribed analgesia and referred for an x-ray of his neck and shoulder which took place the following day. The x-ray was reported as revealing some degenerative changes in the facet joints at C5/6, C6/7 and C7/T1. No abnormality was detected in the right shoulder.[3]
[3]Plaintiff’s Court Book (“PCB”) 74
16 Mr Borg was referred for physiotherapy, which he underwent for about six months. He was referred for ultrasound scans.
17 Mr Borg was referred to a musculo-pain medicine specialist, Dr Steven Jensen, in late 2009 by his physiotherapist and GP. Dr Jensen suspected his pain was related to his facet joints and on two separate occasions performed injections into the facet joints at the C2/3, C3/4, C4/5 and C5/6 levels. These were of little effect and, effectively, ruled out the facet joints as being the source of his pain. He advised that Mr Borg’s pain was probably discogenic in origin, that no specific intervention was likely to help, and that he should continue with medication on an “as required” basis. He last saw Mr Borg in January 2010.
18 In March 2010 Mr Borg was referred to Mr Craig Timms, neuro-surgeon. He advised there was no indication for surgery. He has not seen him since April 2010.
19 Later, Mr Borg commenced hydrotherapy treatment. He ceased as it caused a problem with a skin condition and did not help his pain. Mr Borg was treated with various analgesics.
Diagnosis of injuries
20 Dr Lifson identified symptoms of pain and stiffness in Mr Borg’s neck but did not provide any more detailed analysis of the problem.
21 Mr Timms considered that Mr Borg suffered cervical pain with some mild radiculopathy in the right arm, which he believed was from minor foraminal stenosis in the cervical spine from a combination of disc degeneration and osteophyte formation. On the history given to him, he did not consider there was any underlying symptomatic cervical spine condition prior to the collision.[4] Specifically, Mr Timms took a history that prior to the collision, Mr Borg had not suffered any of the symptoms of which he was complaining in March 2010. This history does not appear to be correct.
[4]PCB 63
22 Dr Jensen considered that, on balance of probabilities, Mr Borg had discogenic cervical spine dysfunction with referred pain to the right shoulder girdle and associated global headaches. He thought that this, on the balance of probabilities and from the history he obtained, was directly related to the collision.
23 I note that Dr Jensen had obtained a history from Mr Borg that, prior to the collision, he had had occasional discomfort in his neck, particularly around Christmas 2008, but that this had settled spontaneously. This history is consistent with the attendance on Dr Lifson’s clinic at about that time.
24 Dr Muir, of the Dorset Rehabilitation Centre, treated Mr Borg with Buprenorphine patches. These resulted in some improvement initially. He recommended that Mr Borg participate in a pain management program but the evidence is silent as to whether or not he participated in such a program. In his report, Dr Muir does not provide any particular diagnosis of the injury or condition suffered by Mr Borg.
25 Mr Russell Miller, orthopaedic surgeon, examined Mr Borg at the request of his solicitors in December 2010 and 2011. He took no history of any pre-collision neck or shoulder symptoms. He considered Mr Borg had suffered from a musculo-ligamentous strain to the cervical spine and aggravation of a degenerative disease in that region, and very likely had a degree of lateral recess stenosis or foraminal stenosis in the mid-cervical level. He thought there was an element of radiculopathy. When asked to explain this last reference, Mr Miller clarified that he did not believe that radiculopathy was proven but he believed that there was a possibility.[5]
[5]PCB 95
26 Mr Michael Fogarty, orthopaedic surgeon, examined Mr Borg at the request of the defendant in March 2011 and May 2012. He considered that Mr Borg had suffered a cervical hyperextension with aggravation of pre-existing degenerative disc disease in the cervical spine. He does not appear to have obtained any history of pre-collision neck and right shoulder symptoms. He did not consider that his findings on examination were consistent with any radiculopathy.
27 The task of reaching a finding as to the nature of any injuries suffered by Mr Borg in the collision is made more difficult by the fact that he had complained in late 2008 of right-sided neck pain, prior to the collision. Of the doctors referred to above, it appears that only Dr Jensen had that history of earlier symptoms. He was asked a number of questions by the plaintiff’s solicitors when requesting a report from him. In answer to one of these, Dr Jensen said:
“I believe that the diagnosis is of that of discogenic cervical spine pain with referred pain to the right shoulder girdle and associated global headaches. This would be, on the balance of probability and from the history I obtained, directly related to his motor vehicle accident of approximately February 2009.”[6]
[6]PCB 52
28 It appears that Dr Jensen was of the view that the symptoms complained of by Mr Borg at the time he saw him, in late 2009 or early 2010, were related to the collision, notwithstanding the earlier complaint.
29 A matter also of some potential relevance is that relating to the nature of the collision itself. In his evidence, Mr Borg described a heavy collision from behind resulting in his vehicle being written-off. The post-collision photographs of Mr Borg’s vehicle showed minimal damage to the rear but substantial damage to the front of the vehicle. It was put to Mr Borg that this was indicative of his having collided heavily with the vehicle in front and at some later stage there being light contact from the vehicle from behind. Counsel for Mr Borg objected to these questions as being irrelevant to the matters to be determined in this application. Counsel for the defendant submitted that the questions were relevant as going to the credit of Mr Borg and for no other purpose. Counsel did not indicate at that or any other time that the nature of the collision would be relevant to any diagnosis of injuries suffered by Mr Borg in the collision. If indeed the collision from behind was an extremely light one, no doctor was advised of this and the diagnoses provided by each of the medical witnesses do not take this into account.
30 Nevertheless, I must reach my conclusion on the basis of the evidence before me and I take into account counsel for the defendant’s statement that the photographic evidence was submitted solely on the issue of Mr Borg’s credit and for no other purpose.
31 On the whole of the evidence, I am satisfied on the balance of probabilities that Mr Borg did suffer a hyperextension injury to his neck resulting in discogenic pain stemming from pre-existing but largely asymptomatic disc degeneration or spondylosis.
32 In respect of non-physical injuries, Mr Borg has never been treated by a psychiatrist or psychologist. Dr Lifson has made no such referral. In none of his reports, nor in his oral evidence, did he make reference to issues of depression, anxiety or the need for treatment for such conditions.
33 Nevertheless, reports of Associate Professor Paoletti and Dr Serry, psychiatrists, who examined Mr Borg at the request of his solicitors, were tendered.
34 In June 2012, Associate Professor Paoletti considered that Mr Borg suffered from a Chronic Adjustment Disorder with mixed anxiety and depressed mood. His anxiety was a direct result of the collision. The depressive aspects were secondary to physical injuries to his neck and low back.
35 In August 2013, Dr Serry considered that Mr Borg had struggled to cope with pain from his physical injury and experienced fluctuating levels of depression, anxiety and frustration. He also thought that he had been mildly traumatised by the circumstances of the collision.
36 He diagnosed him as suffering from an Adjustment Disorder with mixed anxiety and depression.
37 However, I am not satisfied that the collision is a cause of Mr Borg’s psychiatric condition. Firstly, there is no evidence from Dr Lifson (who treated him before and after the collision) concerning the cause or contributing factors to that condition. Secondly, I consider that it would be all but impossible for a medical practitioner (psychiatrist or other) to be confident as to whether injuries sustained in the collision were causative of any psychiatric condition when their first examination of Mr Borg took place three or four years after the collision.
38 On balance, I find that Mr Borg is suffering from a minor Adjustment Disorder with symptoms of anxiety and depression but I am not satisfied it relates to the collision or to injuries suffered in it.
39 I consider it likely that the injury to Mr Borg’s low back, and its accompanying period of about 25 years in which he was unable to work and on an invalid pension, would be a major contributing factor to that condition.
Consequences of injuries
40 Assessment of consequences is made more difficult in this case because it is plain that Mr Borg had suffered a very significant injury some years prior to the collision. He had injured his low back in 1984 and had been the recipient of a Disability Support Pension from about that time. He had apparently done a few odd jobs in the intervening period but, in any meaningful sense, had not been able to work since that time. Mr Borg was aged fifty-five years at the time of the collision. He has not worked since he was aged thirty-one.
41 Notwithstanding being in receipt of that pension for many years, Mr Borg alleged that prior to the collision he led a reasonably active lifestyle. The degree of his activity was disputed by the defendant. Mr Borg maintained that, notwithstanding the back injury which had prevented him working for some 25 years, prior to the collision he was able to engage in a number of activities from which he gained satisfaction:
(a)He would walk his dog each day for up to one hour.
(b)He played bocce regularly at the Maltese Bocce Social and Recreational Club.
(c)He regularly hunted wild pigs and other game.
(d)He was able to partake in gardening and had his own vegetable patch at home.
(e)He accompanied his wife shopping and assisted his wife in the loading and carrying of groceries.
(f)He was able to go fishing, including surf fishing regularly.
42 In cross-examination, Mr Borg was challenged about a number of these alleged pre-collision activities.
43 With regard to hunting, it emerged that Mr Borg had not had a shooting licence since about 1996 when his gun was handed in following the Port Arthur massacre. He conceded that he had not gone shooting since that time. However, he maintained that he did, in the company of his sons and friends, go to the bush in New South Wales where they camped and hunted. Their group hunted wild pigs and goats with dogs. The group would follow the dogs across country. His sons did have shooter’s licences. He maintained that since 1996 the group had gone hunting every three or four months. This was less than he had deposed to in his first affidavit, where he had said he had gone at “least once each month”.[7] Generally they camped for three or four days. Also, he said they rode motor bikes which he was able to ride, although it made his back tired.
[7]PCB 13
44 Sometimes when he went on hunting trips with his friends, he stayed in the camp and cooked for the others. Often he was able to walk to where the dogs had trapped pigs or other game. He said that, but for his neck, he would have got a shooter’s licence and continued shooting. He said he could not shoot now because of his neck pain.
45 Mr Borg said that the last time that he had hunted was 2008, prior to the collision. He had not hunted at all since. The impression I formed was that the hunting trips had been a major hobby or pastime for him prior to then. Although he was restricted by his back injury, he had enjoyed those trips and the contact with his sons and friends.
46 He was shown a document prepared by Dr Lifson dated 22 August 2003, where Dr Lifson reported that Mr Borg suffered from longstanding low back pain with right sciatica; that Mr Borg had seen a neurosurgeon but was not keen on surgery; that his pain fluctuated and increased with “minimal activity”;[8] and that Mr Borg’s condition had not changed in the last 14 years (that is, going back to about 1989). Mr Borg maintained that his low back pain varied in intensity and there were times when he could not do much and other times when he could do more. I accept that this is likely to have been the case.
[8]PCB 158-9
47 It was put to Mr Borg that he would have had difficulty surf fishing prior to the collision because of the amount of time spent standing and casting. Mr Borg maintained that he was able to carry a bucket and a tackle box, pointing out that he did not go fishing alone. He said it was hard for him because of his back but he did it because it was his hobby. He would often take a chair and sit for a while. He did not stand all the time. He said he could not cope with surf fishing now. His neck pain would make casting the long rod too difficult. In relation to fishing, Mr Borg conceded that he was able to sometimes fish from a pier or from a boat on flat conditions. I accept that he has had to cease surf fishing as a consequence of his neck injury
48 In relation to bocce, Mr Borg maintained that he had played social and competition bocce regularly prior to the collision and enjoyed it. He played right handed and was now unable to play because of his right-sided neck pain. He had been a member of the Maltese Bocce Club for 32 years and had played each day leading up to the collision. He said he had tried to play since the collision but could not, due to pain after the collision.
49 Paul Cassar gave evidence and was cross-examined at the hearing. He was the current president of the Maltese Bocce Social and Recreation Club and had been so for about three years. Prior to that, he had been a member of the club and secretary for about two years. He had not been a member of the club before that time.
50 Mr Cassar had sworn an affidavit on 1 August 2013. He swore that he had known Mr Borg for approximately six years socially through the club. When he first met him, he was a very active man, at the club a lot of the time, and frequently played bocce with other members. He swore that Mr Borg used to be one of the competitive players for the club in competitions.
51 In cross-examination, he admitted that he had signed a written statement on 5 February 2013 in which he said as follows:
“Frank has never played the game bocce since I have known him but he comes to the club on most days.
…
I have never seen Frank play bocce. Maybe he played before I came to the club.”[9]
[9]Transcript page (“T”) 99
52 In his oral evidence, he said that he had never seen Mr Borg play bocce.[10] Mr Cassar said that the statement about Mr Borg frequently playing bocce was what he understood to be the case from others before his neck injury. Mr Cassar was unsure about the exact time that he had been secretary and president of the club. Later he said that he had actually observed him playing bocce at the beginning when he started at the club.[11]
[10]T 101
[11]T 106
53 I consider that at best, Mr Cassar was an extremely unreliable witness whose evidence I give no weight.
54 Nevertheless I accept that Mr Borg did play bocce before the collision and over the years leading up to it. He has been able to continue the social life associated with the club and attends there regularly. I accept that he no longer plays because of neck pain.
55 Mr Borg conceded that, prior to the collision, his back injury had sometimes prevented him from sitting or standing for lengthy periods. He was able to cope with the driving trips to New South Wales as a passenger. They usually drove for hunting trips to an area just beyond Albury.
56 He was shown a document headed “Disability Support Pension – Medical and Other Information” which was signed by him on 26 August 2003. That form contained a number of questions about activities and whether they presented difficulties for him. I accept that he is unable to read or write. He could not recall who actually completed the answers for him. I consider it likely that whoever did so acted in accordance with his instructions. In that document he had answered that sitting and standing were difficult for him “all the time”; that walking was difficult for him “often”; that he had difficulty sleeping “all the time”.[12]
[12]Defendant’s Court Book (“DCB”) 221
57 In relation to sleeping, he agreed that he had said in his affidavit in support of this application that since sustaining the injury to his neck in the collision he had found it difficult to sleep at night due to being unable to get comfortable. Notwithstanding his answers on the Disability Support Pension form, Mr Borg maintained that prior to the collision he had difficulty sleeping two or three times per week, whereas at the current time he had difficulty every day. I accept this is probably the case.
58 With respect to problems walking the dog, I accept that he had, prior to the collision, been able to walk his large dog albeit with some difficulty. After his neck injury this was too difficult because the dog pulled. He had disposed of the dog and, more recently, purchased a small dog and trained it not to pull. I accept that he currently walks the dog for about an hour but he did not walk all of that time. He stopped from time to time.
59 DVD film of Mr Borg was shown depicting him on a day in May 2012 and five days in July and August of 2013. On my viewing of the films, they did not disclose Mr Borg performing any activities of an energetic or physical nature. They showed him walking at a leisurely pace and sitting in a café talking with friends. His ability to sit for up to an hour at a café table on occasions was clear. On one occasion, in pouring rain, Mr Borg was shown jogging five or six paces from his car to shelter.
60 I was told that the parties agreed that Mr Borg had been under surveillance by agents instructed by the defendant for nearly 60 hours in total, of which approximately 3 hours 25 minutes of DVD film had been produced depicting Mr Borg on one date or another. I assume therefore that the abbreviated footage shown at the hearing was the most helpful portion from the defendant’s perspective.
61 In Court, Mr Borg demonstrated a very stiff neck. He was not asked to demonstrate the extent to which he could rotate his head left or right. However, it was plain that when he turned even a small degree in either direction, he would turn the whole of his upper torso and shoulders, rather than merely turn his head and neck. In the passages of film depicting him in a café with friends, I find that the film showed him in a more relaxed state and able to turn his head relatively to some degree left and right without moving his shoulders. However, it does not follow that the film was therefore indicative of gross exaggeration or lack of honesty on his part. I consider that the film showed no more than, on a handful of dates, he was able to move his head and neck a little more freely than he was able to do on the two days of the Court hearing, at least in terms of rotation.
62 In relation to his vegetable patch, I accept Mr Borg’s evidence that, before the collision, he had done all the work in relation to it; since the collision, his wife now looked after it.
63 In the end, on the balance of probabilities, I consider that I am able to draw the following conclusions:
(a)Prior to the collision and for many years beforehand, Mr Borg suffered a low back condition which was serious enough to prevent him working for some 25 years.
(b)I consider it likely that his low back condition did fluctuate from time to time. On some occasions, it was worse than on others. I consider that the fact that he was able to take part in some relatively energetic pastimes from time to time before the collision is not inconsistent with him having an inability to hold down a job. I am aware that he had little or no education, can barely speak English, and cannot read or write English. Realistically, the only sort of work that he would have been capable of performing was unskilled manual labour for which he was unfit. Nevertheless, I accept he was able to engage in a number of pastimes involving some physical activities from which he gained satisfaction and pleasure.
(c)Mr Borg partook in hunting trips up to three or four times per year for many years leading up to the collision. Although he did not engage in shooting activities, I conclude that these were occasions where he and friends would travel into New South Wales, camp and enjoy themselves. Although he may not have been able to partake in the full range of hunting activities and did not have a shooting licence, I conclude that this was an important hobby for him.
(d)Mr Borg would have greater difficulty performing gardening activities since the collision. In particular, I accept that he had obtained satisfaction in growing and maintaining a vegetable patch in his home and that he now is unable to play any role in that activity.
(e)As a consequence of his neck injury, Mr Borg would have difficulty driving a motor vehicle save for short trips, and in particular would have difficulty reversing.
(f)Mr Borg suffers from strong headaches on most days. These work up from the base of his neck.
(g)Mr Borg would have difficulty performing some physical tasks, such as mowing the lawn, since the collision.
(h)Mr Borg has sworn that his neck condition affects his sexual relationship with his wife. He was not challenged about this and I accept that is likely to be the case.
(i)Mr Borg’s ability to partake in surf fishing would have been difficult for him even before the collision but that he persisted with it because he enjoyed it. Since the collision he is now unable to be involved with that activity.
(j)As a consequence of his neck injury, Mr Borg would have difficulty in engaging with his grandchildren, in particular in lifting or holding them, and playing games with them.
(k)I accept that Mr Borg does suffer from relatively constant pain, albeit pain which fluctuates in intensity from time to time.
(l)As a consequence of that pain, he has been required to take analgesia. On various occasions since the collision he has been prescribed Tramadol, narcotic patches and Di-Gesic. These are strong pain-killing drugs. He is currently taking Di-Gesic tablets on a regular basis. It would seem from the evidence of the amount of prescriptions of that medication to him, and taking into account the number of repeats on such prescriptions, he would be averaging around one Di-Gesic tablet per day over the last year or so.
(m)Mr Borg has some difficulty remaining seated for lengthy periods. However, I note the film of him sitting at a café for up to an hour and further note that he remained seated in Court for at least that period on different occasions without apparent discomfort. I note his statement in 2003 that he had difficulty sitting all of the time. I am not satisfied that his ability to sit for lengthy periods has been affected to any great degree following the collision. To the extent that it does, it is more likely to relate to his back injury.
(n)Likewise, I am not satisfied that Mr Borg’s ability to sleep at night is worse to any great degree since the collision. I note that in the 2003 statement he indicated that he had difficulty sleeping all of the time. Early in his oral evidence, Mr Borg had conceded that his low back condition had stabilised many years ago and that it had not improved over the previous ten years.
(o)Whilst I accept that Mr Borg may have had to settle for a smaller dog, which he could control more easily and which did not pull him so vigorously, I am not convinced that his ability to walk with or without a dog has altered much since the collision.
64 Senior Counsel for the defendant submitted that the picture painted in Mr Borg’s affidavits of his pre-collision lifestyle was a far rosier one than existed in reality. Whilst there might have been a degree of exaggeration, on the whole I found Mr Borg was essentially an honest witness.
65 This is a case involving a man with a substantial impairment to the lower part of his spine which had prevented him from working for many years. I accept that this earlier injury was a serious one which caused him to live a restricted lifestyle and endure regular pain. In such a situation, I consider that a further injury, on this occasion to the upper part of his spine, is likely to have a far greater impact on him than would be the case if no such prior injury had occurred. Where a person’s lifestyle is already restricted by an earlier physical injury, additional restrictions and symptoms caused by a later injury often have greater consequences for that person than would otherwise be the case. I consider that is the case here.
66 In all of the circumstances, I consider that the consequences of the injuries to Mr Borg’s neck suffered in the collision, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as “at least very considerable and more than merely significant or marked.”
Conclusion
67 For the reasons expressed above, I am satisfied that Mr Borg has suffered a serious injury as that term is defined in the Act.
68 Accordingly, pursuant to s93(4)(b) of the Act, there is leave to Mr Borg to bring a proceeding to recover damages in respect of injuries suffered by him in a transport accident which occurred on or about 19 February 2009.
69 I shall hear the parties in relation to costs.
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