Boza v Transport Accident Commission
[2023] VCC 2301
•14 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-03328
| OSSIE BOZA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2023 | |
DATE OF JUDGMENT: | 14 December 2023 | |
CASE MAY BE CITED AS: | Boza v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2301 | |
REASONS FOR JUDGMENT
---
Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury - paragraph (a) of the definition of “serious injury” - serious long-term impairment of the lumbar spine – pain and suffering consequences
Legislation Cited: Transport Accident Act 1986, s 93(17)
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Sabo v George Weston Foods [2009] VSCA 242; Transport Accident Commission v Dennis [1998] 1 VR 702; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment:Leave granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison KC with Mr B Johnson | Shine Lawyers |
| For the Defendant | Mr W R Middleton KC with Ms A Bannon | Hall & Wilcox |
HIS HONOUR:
Introduction
1Ossie Boza, aged 46, seeks leave to commence a proceeding to recover damages for the injuries he suffered in a transport accident. He seeks to establish his injury is a “serious injury” and relies on paragraph (a) of the definition of that expression, being “serious long-term impairment or loss of a body function”.[1] He relies on the body function associated with the spine; in particular, the lumbar spine. He has confined his application to pain and suffering consequences.
[1]Section 93(17) of the Transport Accident Act 1986.
Circumstances
2On 2 August 2016, Mr Boza was employed by South Melbourne Toyota as a service manager. Their premises are in Normanby Road, South Melbourne. During the afternoon a customer became angry and refused to pay the service bill for his car. While attempting to drive his car away without paying, he reversed his car into Mr Boza, who suffered pain in his lower back.
3This bland description appears in his first affidavit. To Professor D’Urso, he added he fell heavily and part of his body went under the back of the bumper bar of the motor vehicle.[2]
[2]Report dated 12 December 2022 at p 2.
4Overnight, the pain worsened and, on the next day, Mr Boza saw a general practitioner at the Craigieburn Super Clinic, who prescribed a pain-relieving medicine. He did not return to the clinic until 3 January 2017. For the rest of January, he attended five times. On 6 and 16 January, radiological examinations were performed.
5Since the pain extended to his right leg, during 2017, Mr Boza undertook physiotherapy and well as taking the medicine, Lyrica, for pain relief.
6A feature of Mr Boza’s condition is what he describes as “flare-ups” which result in pain in his right leg as well as his lower back. The physiotherapy continued in 2018 as well as the prescription of pain-relieving medicines.
7Mr Boza persevered with his employment as a service manager. He found walking up ramps difficult; so much so, he resigned that position in April 2020. He remained unemployed for about 12 months in order to rest his back.
8During 2020, he continued to attend general practitioners. On 16 November 2020, CT scans were taken.
9On 18 January 2021, Mr Boza saw a pain specialist, Dr Gavin Weekes. MRI scans were taken. On the recommendation of Dr Weekes, he underwent nerve branch blocks on 3 November 2021. Physiotherapy continued during 2021 and 2021.
10There was a time he sought treatment from his general practitioner when he had ‘flare-ups’, but no longer. He believes his treatment options are at an end.
Consequences
Pain
11Mr Boza suffers constant low-level or dull pain in his lower back. Usually, it is about 2 to 3 out of 10. He did not explain what 0 and 10 means to him, but, on the usual meaning of that scale, 2 or 3 out of 10 is low-level pain. If he aggravates his back in some way, the pain level increases to 6 or 7 out of 10 and spreads to his right leg as far as the knee. These events occur every three or four months on average and generally last for two or three days. When this occurs, he takes two Nurofen tablets every four hours and rests. The effect of the Nurofen is to take the edge off the pain. Occasionally, he experiences a pins-and-needles sensation in his right toes.
12Aggravation of his back pain can leave Mr Boza bedridden for days. This has happened many times, about every “few” months. His partner, Joanne West, now prevents him from doing anything strenuous:[3]
“…because I have to run around after him and look after him with massages, and preparing meals, taking things to him in bed, and caring for our children whilst running the household without his assistance.”
[3]Affidavit of Joanne West affirmed on 1 November 2023 at [6].
13When he experiences right leg pain, it is usually at the level of 7 out of 10. Normally, there is no pain in his right leg. This pain affects the right buttock, right thigh and down his thigh to the knee.
14Bending and twisting increases his pain. Standing too long results in a sharp, stabbing pain in his lower back. To avoid that, he changes between sitting and standing. Prolonged sitting is painful.
15Cold weather worsens his back symptoms. Coughing and sneezing can aggravate his level of pain.
16At other times, he limps and is obviously in pain by what he says, the way he walks and grimaces. Ms West applies “deep heat” and massages his back. These measures lessen his pain. She urges him to take Voltaren but:[4]
“…he resists taking anything stronger despite his pain. He has told me he doesn’t like the way the stronger medication makes him feel Lyrica made him feel very sick when he was on it.”
[4]Affidavit at [6].
17In February 2023, Mr Boza and an uncle of Ms West’s attended the Formula 1 races. They parked in the disabled car park. Afterwards, they had difficulty finding their car and walked too much. It left Mr Boza unable to walk properly. He went to bed and remained there for about three days.
18Earlier in 2023, he took one of his dogs walking. It pulled on the lead. He could no longer walk after 500 metres. He could not walk home. Ms West came and drove him home. This never happened before the accident.
Other symptoms
19When he has flare-ups of his symptoms, Mr Boza experiences paraesthesiae down the lateral aspect of his right thigh, going as far as the popliteal fossa. This symptom can last up to a “couple” of days.
Sleep
20Regularly, pain disturbs his sleep. His consciousness of pain on most nights causes a restless sleep. Two or three times a month he rolls over in bed, feels a jab in his back, is unable to return to sleep, and spends the time watching television until it is time to rise for the day. He goes to work unrefreshed, lacking concentration and is moody.
Treatment
21The nerve branch block treatment gave him pain relief for two to three months before returning to its usual levels.
22He continued physiotherapy until mid-2022 and stopped because he did not feel he was receiving any ongoing benefit. He learnt exercises which he performs daily. Each morning, he performs 15 to 20 minutes of stretches and other exercises to loosen his back and assist with his pain. He walks his dog most nights. It assists his fitness but if he walks too far he suffers increased pain.
23He takes Nurofen intermittently. Sometimes he takes Panadol and Voltaren. He uses a “Deep Heat” spray.
Activities
24He avoids heavy lifting or repetitive strenuous use of his back.
25His range of back movements is more restricted than before the accident. He knows what causes increased pain and avoids those activities.
26Mr Boza liked to work on cars. About seven years ago, he acquired a car to restore. He calls it a “project car”. He believed he could restore it in about six months. His partner, Joanne West, thought within a “few years”. It remains largely unrestored.
27Mr Boza’s 19-year-old son has a car which he modified. Before the accident, he would have repaired the car. Now he cannot do so. He and his partner have spent about $6,000 for the repairs to be done by someone else.
28Mr Boza’s home was renovated about two years ago. Before the renovation, their furniture and homewares needed to be moved. He was unable to help with the moving; it was left to his partner and son.
Home
29Mr Boza avoids gardening, rubbish removal and maintenance of the exterior of his house. Inside, he does light cleaning.
30Ms West gardens now. During October 2023, she replaced the lawn in their yard. Mr Boza did not help. Before the accident he would have helped.
31He bought a lawn mower and mowed with it but found he could not empty the grass catcher. Before the accident he mowed about every week. His partner now mows.
32He no longer cleans the gutters. In fact, 1½ to 2 years earlier, an attempt at cleaning the gutters caused pain in his back and into his right leg. This ended both his gardening and cleaning of gutters. The cleaning of gutters is now done by his partner who is assisted by their son.
33He does not take the rubbish bins to the front of their property for emptying. This is done by a neighbour who maintains his partner, as a woman, should not do it.
Trail bike
34Mr Boza no longer rides a trail or dirt bike owing to the state of the tracks he would ride. It involves too much strain and jarring. He tried in about 2018 and stopped after riding for 50 metres due to pain. He tried again in about 2020 when he used a kidney belt “so I can strap my back up nice and firm”. He rode for less than 50 metres after experiencing a jabbing pain.
35He shared this kind of bike-riding with his son. It was a way of bonding with his son. He taught his son how to ride. They no longer ride together. However, Mr Boza bought his son a new bike to ride. He will not deny his son the pleasure of riding even though it is denied to him. He drives his son to where he rides and watches him.
36Professor Davis noted Mr Boza played indoor soccer before the accident, but Mr Boza did not mention it. I assume his inability to play indoor soccer is not seen by him as much of a loss.
Fishing
37Before the accident, he went fishing with Ms West and her brother-in-law and sister-in-law. At the same time, they would ride motor and quad bikes. Ms West rode a quad bike while the males rode motor bikes. On average, this happened every one or two months. After the accident, this type of outing was still organised but Mr Boza sat on a camping chair and did not fish or ride a bike.
38However, there is a photograph of Mr Boza fishing from a boat on Port Phillip Bay. This related to a single occasion. The outing lasted 2½ to 3 hours. Although he did not launch the boat, Mr Boza did fish, explaining such fishing only involves standing or sitting.
Skydiving
39On or about 22 December 2018, Mr Boza went skydiving. Photograph 43 shows a smiling Mr Boza, dressed in skydiving equipment, next to his sister.[5] This was the only time he went skydiving. His sister had been given a gift of skydiving for her birthday. She did not want to go alone so she asked him.
[5]Exhibit 1.
40He was required to complete a medical disclosure form. He disclosed the presence of a slipped disc. He was told he would be placed with the most experienced jumper as his tandem jumper.
41His jump was a tandem jump: he had an instructor strapped to his back. It was the instructor who had the parachute. He does not know the height from which he left the plane but was free falling for a “good” 30 seconds, which implies a low level. He did not arch his back during the free-fall. He landed on his feet on a beach. Landing on a soft sandy surface contrasts with landing on the hard surface of an airstrip.
42At first blush, this was a foolhardy thing for Mr Boza to do. It appears he did not consider the physical nature of skydiving or the danger involved. He was confident about skydiving because he had an instructor strapped to him and, in this, he was proven correct. The fact of his skydiving does not affect my assessment of the consequences of his injury or his credit.
Employment
43Mr Boza is a mechanic by training. Much of the work of a mechanic is denied to him through his injuries. He avoids heavy lifting, pushing, pulling and awkward positions.
44Nevertheless, his present position is based in an office. While a service manager at South Melbourne Toyota, he was largely office-based but did instruct apprentices on the floor. This involved some hands-on work including conducting scheduled services, removing wheels and tyres, removing brakes and servicing transmissions. It was heavy work. It represented about 30 per cent of his work. Following the accident, he stopped those activities.
45On 7 April 2020, Mr Boza resigned from South Melbourne Toyota. He was unemployed for about a year. There were two reasons for his resignation. The primary reason was his back pain, and the secondary was struggling to come to terms with his inability to use the tools of a mechanic. With the former, there were two sites at his workplace, connected by ramps. The need to walk “up and down” these ramps hurt his back.
46Despite resigning, he wanted to work. He applied for positions but found when he disclosed the existence of his bad back and a WorkCover claim, doors were closed to him, as he put it. Until his resignation, he had few absences from work due to his back. He estimated 15 or 16 days over a four-year period.
47In about September 2023, Mr Boza started as an operations manager at Sunbury Ford. In February 2023, he had started with Northern Honda. He took the position with Sunbury Ford because of the increased salary and his workplace was closer to his home. This employer is aware of his restrictions and he is able to stand or sit as he requires. He works from 7.45 am to 5 pm, five days a week. There is no weekend work.
48Mr Boza’s last three positions have been office-based. They did not involve “hands-on” work as a mechanic. Although Mr Boza remains nervous about his future given his injuries, his ability to attract employers should give him some encouragement.
49In April 2021, Mr Boza was working as a fixed operations manager at Western Ford. He undertook a Diploma in Leadership and Management and is still studying for the diploma. The course is undertaken online and he spends 4 to 5 hours a week on it.
Intimate life
50The relationship between Mr Boza and Ms West has deteriorated due to the significant restriction on their intimate life owing to his injury. Apart from their intimate life, it concerns her she has to do everything at the home because he cannot.
51This last piece of evidence is telling. While Mr Boza focussed on the effect of the injury upon him, Ms West spoke of the effect upon her. Indirectly, it was strong confirmation of the adverse consequences of the injury.
Medical and other evidence
General practitioners
52There is a brief and largely unhelpful report or certificate from Dr Mohammad Al‑Magableh.[6] He practised at the Craigieburn Superclinic. There is also a letter of referral from Dr Mehraz Chowdhury to Dr Weekes’ practice.[7] It adds nothing. More helpful was the admission into evidence of Mr Boza’s clinical records of the Craigieburn Superclinic covering the period between 25 July 2008 and 7 September 2022.
[6]Dated 28 December 2018.
[7]Dated 14 December 2020.
Dr Weekes
53Dr Gavin Weekes is a pain specialist. He has treated Mr Boza on referral from his general practitioner.
54On November 2021, Dr Weekes administered a right L3 to L5 medial branch block and a right sacroiliac joint block. Shortly afterwards, Mr Boza had better than 50 per cent pain relief.[8] In an earlier report, Dr Weekes described these blocks as diagnostic and said, if they proved positive, he would proceed with radiofrequency denervation.[9]
[8]Report dated 19 November 2021.
[9]Report dated 12 February 2021.
55There are no further reports from Dr Weekes. What he meant by “positive” is not explained but I suppose the significance of any finding would lie in its diagnostic value. Radiofrequency denervation has not been attempted. Mr Boza does not know why that it is so.
56As recommended by Dr Weekes, Mr Boza undertook further physiotherapy for three or four months.
Dr Horsley
57Dr Robyn Horsley is an occupational physician. At the request of Mr Boza’s solicitors, she examined him on 19 January 2023.[10]
[10]Report dated 19 January 2023.
58Her examination revealed a mild loss of lumbar lordosis. She noted the movements of his lumbar spine with forward flexion at 90 degrees, extension to about 20 degrees, and both lateral flexion and rotation limited at the end of the full range.
59Dr Horsley saw the reports of various radiological examinations, Dr Weekes’ operation report, and several other medical reports. She especially noted Professor Love’s diagnosis.
60Her diagnosis is somewhat vague. She speaks of an injury to the lumbar spine and notes the presence of a small posterior central disc protrusion at L5/S1 which slightly indents the anterior thecal sac and possibly compromises the L5 nerve root. Clinically, there were no signs of radiculopathy. He experiences mechanical back pain.
61For treatment, Dr Horsley recommends examination by a physiotherapist for the prescription of core strengthening exercises, presumably to be done at home with his other exercises.
62As to his physical activities, Dr Horsley recommends Mr Boza avoid a host of activities: repetitive overreaching; repetitive pushing and pulling; truncal rotation; repetitive bending and lifting; lifting items greater than 12 to 15 kilograms except on an occasional basis; lifting items up to 10 kilograms on a repetitive basis; using tools which vibrate; forceful activities using both arms; jarring activities; and prolonged standing and sitting. Additionally, she recommends he adopts good manual handling techniques even when lifting light items, and variation in his posture. This last he already practises by rising regularly during his working day.
63As to prognosis, now describing the protrusion at L5/S1 as a “lesion”, Dr Horsley says:[11]
“He is at risk of an acceleration of the degenerative process over time, which will result in increasing stiffness and reduced functional tolerances ultimately.”
[11]Ibid, at p 7.
Professor D’Urso
64Professor Paul D’Urso is a neurosurgeon. At the request of Mr Boza’s solicitor, he examined him on 7 December 2022. Professor D’Urso was given the same documents which Dr Horsley received.
65Professor D’Urso’s examination revealed pain from the plaintiff’s back and right leg from the straight leg raising test. This occurred at 45 degrees. The plaintiff raised his left leg to 70 degrees without pain. He could stand on his heels and toes. As to his back movements, Professor D’Urso simply noted an ability to forward flex so he reached to 30 centimetres of his toes and extension was limited to 20 degrees. His hips were mobile and not tender.
66Professor D’Urso diagnosed an injury to the L5/S1 disc causing what he described as a “central prolapse”. He linked the accident to this injury.
67As to prognosis, after noting evidence of progression from the imaging between 2018 and 2021, the desiccation of the L5/S1 disc and the minor degenerative change in the L4-5 disc, he considered there is a risk of degenerative progression of, presumably, the L5-S1 disc with its rupture causing neural impingement.
Associate Professor Love
68Associate Professor Bruce Love is an orthopaedic surgeon. At the request of an authorised agent, he examined Mr Boza on 23 August 2021.[12] His advice was sought to assess Mr Boza’s request for certain medical treatment and about his weekly payments of compensation.
[12]Report dated 26 August 2021.
69Professor Love’s examination revealed about 50 per cent of the usual range of movement for forward flexion of the lumbar spine and no gross restriction on extension or lateral flexion. For straight leg raising, Mr Boza attained 90 degrees with both legs. There were no abnormal neurological signs.
70As to diagnosis, Professor Love said:[13]
“It is probable that Mr Boza has had injury to the lumbar spine, the precise pathology of which cannot be identified and the findings described on the MRI are more probably age related rather than directly related to the incident of 2016.”
[13]Ibid, at p 5.
71But adding later in the report:[14]
“The worker’s current condition can reasonably be accepted to have been materially contributed to by the injury of 02.08.2016”.
[14]Ibid, at p 8.
72The rest of the report dealt with the proposed injection of Dr Weekes and Mr Boza’s capacity for work.
Professor Davis
73Professor Gavin Davis is a neurosurgeon. At the request of the defendant’s solicitors, he examined Mr Boza on 6 October 2023.
74Professor Davis was provided the information given to the other practitioners. In addition, he possessed the clinical notes of the Craigieburn Superclinic.
75On examination, he found moderate reduction in lumbar flexion, extension and lateral flexion. Rotation was normal as was the neurological examination.
76Professor Davis diagnosed a soft tissue injury of the lumbosacral spine with L5-S1 disc protrusion but without radiculopathy. Although possessing the report of the MRI scans of 1 February 2021, he viewed the images themselves. To him, they showed a trivial disc desiccation at L4-5 and mild disc degeneration at L5/S1 with a disc bulge. There was no spinal canal or foraminal stenosis or nerve root compromise.
77As to prognosis, he suggested occasional physiotherapy, up to six sessions a year. If his symptoms increased after a significant flare-up and did not respond to simple analgesia, then referral to a pain management and rehabilitation program would be appropriate.
Legal considerations
78The meaning of “serious” in s97(17) of the Act is explained in Humphries v Poljak:[15]
“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’?”
[15][1992] 2 VR 129 at 140 per Crockett and Southwell JJ.
79In Sabo v George Weston Foods,[16] the Court drew attention to the adverb “very” in the above passage and quoted Callaway JA in Transport Accident Commission v Dennis:[17]
“Many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable.”
[16][2009] VSCA 242 at [73].
[17][1998] 1 VR 702 at 703.
80As to the fact of a return to work, Chernov JA observed in Sumbul v Melbourne All Toya Wreckers Pty Ltd:[18]
“…that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable.’ ”
[18][2006] VSCA 292 at [24].
81As can be seen, Chernov JA made this observation when dealing with pain and suffering consequences even though there was a separate claim for loss of earning capacity consequences.
82Fairly, the Commission’s counsel drew my attention to an observation of the Court in Stijepic v One Force Group Aust Pty Ltd[19] after quoting the passage from Chernov JA:
“The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”
[19][2009] VSCA 181 at [47].
83In Haden Engineering Pty Ltd v McKinnon,[20] after noting Stijepic at [47] and Sabo at [71], Maxwell P said:
“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].’ ”
[20][2010] VSCA 69 at [15].
84The quotation in the last sentence coming from Dwyer v Calco Timbers Pty Ltd (No 2).[21]
[21][2008] VSCA 260 at [25].
85Finally, in Dwyer v Calco Timbers Pty Ltd (No 2),[22] Ashley JA said:
“…in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
[22]Ibid, at [27].
Discussion
Credit
86The defendant attacked the truthfulness of Mr Boza. The attack focussed mainly on what he did not disclose. In effect, it amounted to a submission he misled the court although not expressed in those terms. There were mainly three aspects derived from the images he posted on Facebook.
87First, there is an image of himself and his sister dressed in skydiving uniforms. It turns out they went skydiving on one occasion. That he did this activity was not revealed by him or his partner in their affidavits or, apparently, revealed to medical practitioners.
88Second, there are two images of a largish boat. He admits fishing in it once.
89Third, Mr Boza has a project car at home. He is restoring it. There are two photographs on his Facebook: one shows the car; and the other shows him using a grinder.[23] It has a comment, presumably written by Mr Boza: “Time to strip back. Dust everywhere”. Both are dated 4 January 2020.
[23]Pages 39 and 40 of the Defendant’s Court Book.
90From the perspective of him giving evidence, I considered Mr Boza to be a credible witness. He appeared to be an open and helpful witness. A few of his answers in cross-examination appeared over-generous given his earlier evidence. His Facebook images present a picture of a healthy, active person. But one would not expect a person to post images of himself in unhealthy or unhappy pose. This is the face he wishes to present to his friends. It gives an insight into his character.
91Mr Boza resigned from South Melbourne Toyota in April 2020. He found walking on the ramps connecting parts of his workplace too painful and, emotionally, he could not come to grips with the reality of losing his ability to use his tools. These are credible reasons for resigning. He could not change the layout of his employer’s workplace. His emotional reaction is understandable where he believes he has lost a fundamental ability.
92What is it about walking along inclined ramps that caused Mr Boza back pain? The evidence did not reveal the nature and dimensions of these ramps or the frequency with which he walked across them daily. He simply found it painful to traverse them and one supposes this was build up over the years. It points to a significant impairment and why Mr Boza was upset. A motor mechanic is on his or her feet for most of the working day. An inability to walk in that workplace is a significant matter. The fact he resigned without securing another position is indicative of his emotional state.
93Overall, I remain satisfied about my impression of Mr Boza’s truthfulness formed by seeing and hearing him give his evidence. To me, he is a truthful witness.
Consequences
94I discussed his walking ability in the context of credibility. It is appropriate to examine it now in the context of consequences to Mr Boza. From his oral evidence, he is untroubled climbing and descending stairs. He is able to walk for 20 to 30 minutes. Walking for 30 minutes means he travels about two kilometres. He walks his dog or dogs.
95Plainly, the state of his back significantly restricts the distance he can walk. Two kilometres is a short distance to walk for someone of his age. However, Ms West deposed to an incident earlier this year where he took a dog walking. It pulled on the lead, aggravated his back, and he could not walk after travelling 500 metres. Since he could not walk home, he was stranded and she collected him in a car.
96Generally, his pain is low-level. From time to time, he aggravates his back and increases his level of pain dramatically. It leaves him disabled for days. Although he knows what aggravates the state of his back it still occurs often enough. He no longer attends his general practitioner when it is aggravated. He prefers to rest and take non-prescribed pain-relieving medicines.
97Mr Boza cannot return to performing the work of a mechanic. At the time of the accident, such work was a lesser part of his overall duties. His inability to return to such work is clearly evidenced by his significant inability to work on his project car. It has sat in a largely unworked state for years.
98I have examined the consequences of his injury in terms of pain, sleep, activities about the home, sporting activities, and relations with his partner. I have also examined his lack of recent medical and other treatment and the nature of his current employment and employment at the time of the accident and since. As I have said in previous rulings, most of these applications are finely balanced. Mr Boza’s application is no different. In terms of the test stated in Humphries v Poljak, in relation to Mr Boza’s pain and suffering consequences, I am satisfied Mr Boza has suffered a “serious injury”. I will grant him leave to commence an action to recover damages in relation to pain and suffering. I will hear the parties on the form of the order and the question of costs.
- - -
5
0