Bridge v Victorian WorkCover Authority
[2014] VCC 889
•18 June 2014
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-03301
| BENJAMIN JOHN BRIDGE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 26 May 2014 | |
DATE OF JUDGMENT: | 18 June 2014 | |
CASE MAY BE CITED AS: | Bridge v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 889 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – pain and suffering only – injury to the thoracolumbar spine
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(a)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Leave granted to the plaintiff to commence a proceeding at common law seeking damages for pain and suffering consequences.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison with Mr A Macnab | Ryan Carlisle Thomas |
| For the Defendant | Mr R Meldrum QC with Mr G J Cooper | Wisewould Mahony |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with Wayne Stanley Howlett (trading as Wahoo Builders) (“the employer”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is the thoracolumbar spine.
6 The plaintiff relied upon three affidavits: two sworn by the plaintiff on 22 November 2012 and 17 February 2014 and an affidavit of his partner, Emily Flakemore, sworn 20 February 2013. The plaintiff was cross-examined.
7 I have not summarised the affidavits and evidence of the plaintiff and the affidavit of his partner. However, I will refer to the relevant evidence of the plaintiff and Ms Flakemore in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
9 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the employer;[2]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) “the consequences” to the plaintiff of his impairment to the thoracolumbar spine in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked, and as being at least very considerable”.[4]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c)
10 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
11 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[6]
[5][2009] VSCA 181
[6]at paragraph [42]
12 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[7]
[7]Section 134AB(38)(h)
(b) must make the assessment of “serious injury” at the time the application is heard;[8]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[9]
[8]Section 134AB(38)(j) of the Act
[9] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issue
14 Counsel for the defendant informed the Court that this is a “range case”; namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked, and as being at least very considerable” when compared to other cases in the range. Further since a few months following the initial injury until February of 2014, when he suffered an exacerbation, the plaintiff was free of treatment and symptoms.
Investigations
15 On 14 February 2007, a CT scan of the plaintiff’s thoracic spine and lumbar spine concluded:
“Some small Schmorl’s node herniations demonstrated in the lower thoracic spine. There is degenerative disc disease at L4-5 with a posterior annular disc bulge but no discrete disc protrusion is seen. There is normal vertebral body alignment and no canal stenosis.”
16 On 4 June 2013, an MRI scan of the lumbar spine recorded:
“L4/5: There is a left bicentral disc protrusion causing mild left lateral recess narrowing. Mild thecal sac indentation is demonstrated, though CSF remains around the cauda equine. The foraminae generally remains patent. The disc protrusion is contacting the descending left L5 nerve root but does not appear to be compressing this structure. Minor facet joint arthropathy is noted at the L4/5 level.
L5/S1: Mid posterior disc protrusion causing mild thecal sac indentation. The foraminae generally remain intact. Bilateral facet joint arthropathy is noted at this level.”
The Plaintiff’s medical reports
Dr Carl Grace
17 In March 2007, Dr Grace, general practitioner, confirmed that the plaintiff was seen at his practice by a locum, Dr Frances Ling, on 9 October 2006. The plaintiff had been injured when he fell from a height of 21 feet, sustaining pain to his right lower forearm, pain in his neck and back, pain in the wrist, right thigh and in his left ankle. His workmates reported that he was unconscious for 30 seconds and had vomited three times.
18 X-rays were performed, and recorded normal right wrist, right ankle with no sign of any fracture of the thoracic and lumbar spine. The plaintiff was prescribed analgesics, Panadeine Forte for his pain and provided with a WorkCare Certificate. The plaintiff was reviewed regularly until 20 November 2006 and provided with WorkCare Certificates. Further x-rays were performed but were normal.
19 The plaintiff was last seen in February 2007, when he was advised to seek chiropractic relief for symptoms of his back pain.
Mr Stanley Schofield
20 Mr Schofield, orthopaedic surgeon, examined the plaintiff in May 2013 and June 2013. Mr Schofield said the plaintiff sustained a significant impact injury to the lower lumbar discs of his lumbar spine as a result of a fall approximately six years ago. He complained of pain in the back without significant sciatica. His MRI scan was not normal for a man of his age and is consistent with the injury the plaintiff sustained.
21 It was Mr Schofield’s view that the plaintiff had sustained an injury, causing a rupture of the posterior annulus at L4-5. The conservative treatment had failed to produce a satisfactory improvement in his condition, limiting his ability to work and enjoy life. He recommended that the plaintiff obtain an upright MRI scan with a view to a surgical solution.
22 Mr Schofield said the plaintiff’s prognosis remained guarded for the future with regard to his work and general activities. He said there is always a possibility of resolution of a disc prolapse, but five years is a long time for this to occur.
Mr David Brownbill
23 In July 2013, Mr Brownbill, neurosurgeon, medically examined the plaintiff at the request of the plaintiff’s solicitor. When examined, the plaintiff complained of ongoing low-back pain which was consistent with the radiological investigations demonstrated on MRI scanning. Mr Brownbill said the plaintiff should avoid activities involving heavy lifting, full spinal mobility, repeated bending or prolonged standing or sitting. He anticipated that the pain will continue in a fluctuating manner indefinitely.
24 Mr Brownbill said the plaintiff sustained damage to the lower two lumbar intervertebral discs in the fall in October 2006. As a result of his injury, he considered the plaintiff was likely to be restricted in relation to employment or related activities involving heavy lifting, forced spinal mobility or prolonged standing or sitting in a moderate to marked degree, which incapacity will continue for the foreseeable future.
25 Mr Brownbill said the plaintiff did not have the capacity to perform his full pre-injury duties, which he considered was permanent. He thought he had a capacity to perform suitable employment, and noted that he was not working full time as a screen printer. He accepted that the plaintiff would be restricted in relation to his social, domestic and/or recreational activities to a moderate degree, which he said would continue for the foreseeable future.
26 Further, there was no specific treatment required from a neurosurgical viewpoint. The use of analgesics, particularly during periods of pain exacerbation, is appropriate.
Dr Anil Kaippilly
27 In May 2014, Dr Kaippilly, general practitioner, confirmed that he examined the plaintiff and prescribed Panadeine Forte and Voltaren.
The Defendant’s medical reports
Mr Timothy C Gale
28 In March 2011, Mr Gale, surgeon, medically examined the plaintiff at the request of the defendant’s insurer to perform an independent impairment assessment. It was his view the plaintiff suffered an injury in October 2006 consisting of a minor concussed head injury, a possible minor soft-tissue injury to the cervical spine and in the vicinity of both wrists and forearms, a soft-tissue injury to the right thigh and soft-tissue sprain injury to the right and left ankle and foot region. He said the plaintiff may have suffered a soft-tissue injury to the thoracolumbar spine region and possible symptomatic aggravation of a pre-existing underlying degenerative process involving a number of levels in the thoracic region. He thought the plaintiff’s prognosis would be good and he expected significant improvement.
Mr Daryl H Nye
29 In June 2013, Mr Nye, neurosurgeon, medically examined the plaintiff at the request of the defendant’s insurer. It was Mr Nye’s view the plaintiff suffered a minor concussive head injury which had recovered. He said the multi-level disc degeneration on MRI scan and other described changes are greater than would be expected given the plaintiff’s age, and with spinal symptoms from the time of injury continuing and necessitating a change in occupation. He accepted there was a nexus between these findings and the work injury.
30 He said the plaintiff had a current capacity for employment, as a screen printer, but could not resume full duties as a carpenter. He imposed restrictions in any employment situation, including avoidance of repeated bending or twisting movements of the lumbar spine, prolonged unrelieved periods of either standing or sitting, and a lifting limit of 10 kilograms would be appropriate, and such should not be conducted from below waist level.
Mr John F O’Brien
31 In June 2013, Mr O’Brien, orthopaedic surgeon, medically examined the plaintiff at the request of the defendant’s solicitor. It was his view the plaintiff described a fairly mild disability. The plaintiff reported some aggravation of back pain due to heavy physical tasks, in particular bending and lifting. As a consequence, the plaintiff sought alternative employment and has worked as a screen printer for four-and-a-half years. This position does not involve aggravating factors; that is, repetitive bending and heavy lifting. Mr O’Brien said the plaintiff was capable of undertaking these modified duties. He said the plaintiff was not capable of undertaking totally unrestricted manual duties. Accordingly, the plaintiff will not return to his pre-injury occupation. However, he has the physical capacity to undertake some employment which does not require repetitive bending and heavy lifting.
Credit
32 There was no real challenge to the plaintiff’s credit. The plaintiff answered all questions put to him directly. He made concessions against his own interests. He impressed me as being genuine. Mr Brownbill said:
“He was alert and cooperative without embellishment, appearing straightforward in his presentation.”
33 This was consistent with the plaintiff’s presentation in court. I formed the view that the plaintiff was a credible witness.
Analysis of the evidence
34 The medical evidence was not in dispute. Other than Mr Gale, who had not examined the plaintiff since 2011, all of the other medical witnesses accepted he suffered injury to the lower lumbar discs of his lumber spine, which was consistent with the radiological investigations demonstrated on MRI scan. All accepted he could not return to pre-injury work and was not capable of undertaking unrestricted manual work. The majority specifically imposed restrictions in relation to employment of no repetitive bending and heavy lifting. Mr Nye and Mr Brownbill included repeated twisting movements of the lumbar spine, prolonged unrelieved periods of standing or sitting, and a lifting limit of 10 kilograms. All said the restrictions related to social, domestic and recreational activities.
35 Mr Schofield said the plaintiff had sustained injury, causing a rupture of the posterior annulus at L4-5. Continuing conservative treatment failed to produce a satisfactory improvement in his condition which limits his ability to work and enjoy life. His prognosis was guarded for the future with respect to his work and general activities.
36 Mr Brownbill said the plaintiff damaged the lower to lumbar intervertebral discs. As a result of the lower lumbar intervertebral disc injuries, the plaintiff was likely to be restricted in relation to employment or related activities involving heavy lifting, forced spinal mobility or prolonged standing or sitting in a moderate to marked degree, which incapacity will continue for the foreseeable future.
37 Mr Nye said the plaintiff suffered multi-level disc degeneration, confirmed on MRI scan, and the described changes are greater than would be expected given the plaintiff’s age. He noted the plaintiff had spinal symptoms from the time of the injury which necessitated a change in occupation. He said the plaintiff could not resume full duties as a carpenter and some restrictions would be necessary in any employment situation, including the avoidance of repeated bending or twisting movements of the lumbar spine, prolonged unrelieved periods of either standing or sitting and a lifting limit of 10 kilograms, and should not be conducted from below waist level.
38 Mr O’Brien did not have access to the MRI scan of June 2013. He said the plaintiff described fairly mild disability with aggravation of back pain due to heavy physical tasks, in particular bending and lifting. As a consequence, the plaintiff had sought alternative employment. He accepted the plaintiff could perform modified duties, but was not capable of undertaking totally unrestricted manual duties. He accepted the plaintiff could not return to his pre-injury occupation, and imposed restrictions of no repetitive bending and heavy lifting. He said the plaintiff was mildly limited in his general, domestic, social and recreational activities.
39 The plaintiff’s evidence was that in late April 2014, he suffered a significant flare up of pain with respect to his back. Due to the pain, he consulted Dr Kaippilly at the Tristar Medical Group at Grovedale and was prescribed medication of Panadeine Forte and Voltaren. He attended the Emergency Department on a number of occasions, was off work for three weeks and has commenced physiotherapy.
40 I accept the medical evidence is that the plaintiff suffered injury to the lower two lumbar intervertebral discs. The plaintiff has been restricted in relation to employment and related activities which involve heavy lifting, forced spinal mobility or prolonged standing or sitting in a moderate to marked degree. I accept that as a consequence of the physical injury, he is likely to be restricted in relation to social, domestic and/or recreational activities to a moderate degree. Mr Brownbill said such incapacity will continue for the foreseeable future. Mr Schofield said his prognosis was guarded.
41 The evidence is that the plaintiff has been restricted since the injury of October 2006. No current medical witness suggested that there was likely to be improvement. Accordingly, I am satisfied that the restrictions are for the foreseeable future.
42 The issue is whether the consequences satisfy the statutory test.
43 The plaintiff’s evidence was that he suffers from ongoing low-back pain which is not constant but is exacerbated by physical activity, such as bending, lifting, twisting or stooping. He now needs to be careful with the physical activities that he undertakes. The plaintiff’s evidence was that in late April 2014, he suffered a flare-up of pain and, as a result, he had three weeks off work. He consulted a general practitioner, who prescribed medication of Panadeine Forte and Voltaren. The medication did not relieve the pain and he attended the Emergency Department and was given Endone and Nurofen. He attended the Emergency Department on a second occasion. He said this was the worst flare up he experienced since the injury of October 2006. He was referred for physiotherapy treatment.
44 The plaintiff reported the pain to the doctors whom he saw.
45 In June 2013, he reported to Mr Nye that the pain has, at times, interrupted his work attendance. Recently, this was for a period of three days, which was the longest interruption for a considerable length of time.
46 In June 2013, the plaintiff described the pain to Mr O’Brien. He said:
“[The plaintiff] continues to experience low back pain that fluctuates somewhat in severity but on average the severity is about 4 out of 10 on a visual analogue scale. The patient reported he does not have constant pain, but indicated on most days he would have pain across his lower back which is aggravated by any bending or lifting and after prolonged bending he has difficulty standing erect. The patient indicated he has difficulty with back pain and stiffness most mornings and the pain is much worse on cold mornings, on these occasions the severity of pain reaching 7 - 8 out /10. When this occurs he has difficulty dressing in the morning and on occasions the pain is so severe he has to take a day off work. The patient reported that sneezing seems to aggravate the back pain and any jarring of the spine such as when running or jumping causes aggravation of pain.”
47 The plaintiff reported to Mr Schofield chronic low-back pain which prevents him from being able to resume his pre-injury occupation or pre-injury recreational activities. He reported attacks of back pain causing him to take time off work. Twisting, turning and jumping all made the pain more severe. Jogging aggravated the pain.
48 The plaintiff reported to Mr Brownbill that he has low-back pain most of the time with fluctuations, being worse with cold weather or physical activity.
49 All doctors accepted the plaintiff suffered the level of pain he reported.
50 The plaintiff reported to Mr O’Brien, Mr Schofield and Mr Brownbill that he performs home core exercises. He told Mr Schofield and Mr O’Brien that in the hope of improving his back pain, he undertook a course in fitness training at the Victorian Fitness Academy in 2012. He told Mr O’Brien that the core exercises have helped his persistent back pain. He reported to Mr Schofield he was unable to lift weights when doing the training course and despite the exercise and medication, he felt his condition was not improving.
51 In cross-examination, the plaintiff said he learnt to deal with the pain himself by undertaking core exercises. He said the exercises did not relieve the pain, but managed the pain. For a period he has not been exercising. He told the Court that while his partner’s house was being built, he interrupted his exercise regime. He intends to return to exercising.
52 I accept the plaintiff’s evidence that in the past his exercise regime has enabled him to manage the pain. However, both Mr Brownbill and Mr Schofield were aware of his exercises. Mr Schofield said conservative treatment has failed to provide a satisfactory result and that surgery may be of assistance. Mr Brownbill said his pain will continue in a fluctuating manner. Accordingly, I reject the defendant’s submission that the pain consequences are not permanent.
53 The plaintiff said his pain is made worse by activities that involve bending, lifting, twisting or stooping. He now needs to be careful with the physical activities that he undertakes. All doctors accepted that the plaintiff should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.
54 I accept the plaintiff’s evidence in relation to the description of pain in his low back. He was consistent in reporting the level of pain to the medical witnesses. I accept that the experience of pain for the plaintiff is a consequence I can take into account.
55 The plaintiff’s evidence was that he qualified as a carpenter and derived great satisfaction from performing that work. At the time of the work injury, he had only recently completed his apprenticeship. It was his intention to move into commercial carpentry work and to undertake other self-employed work on weekends. To that end, he had obtained an ABN number. In the long term, it had been his aim to build his own home.
56 In his first affidavit, the plaintiff said he had to return to lighter work, erecting temporary fencing. Despite the lighter nature of the work, he suffered persistent and, at times, severe back pain. He deposed that he was unable to continue performing building and carpentry work and obtained casual employment. He continued to make a number of attempts to return to his occupation of carpentry and building, but on each occasion he attempted that work, after an hour or so of lifting, bending and twisting, his back pain became severe. He obtained casual employment as a screen printer. Of that work, he said it was not physically demanding and he needs to take time off work as a result. Further, he deposed that he was unable to return to the job he loved and for which he was trained.
57 In Court, the plaintiff was asked about his current job and how it compared with being a carpenter. The plaintiff’s evidence was as follows:
Q:“And you said it’s not real interesting, got no love for it?‑‑‑
A:Yeah, no love at all.
Q:How does that compare with the carpentry?‑‑‑
A:Other end of the scale. I love working with timber, I love - the smell of cut timber is the best, and seeing - building frames, seeing a house start from nothing to this it’s – it’s - I won’t say it, but, yeah, it’s awesome.
Q:And you miss that?‑‑‑
A:A hundred per cent.
Q:What sort of carpentry did you want to do, what was your career plan?‑‑‑
A:My career plan?
Q:Yes?‑‑‑
A:A lot of my mates are in commercial. They do sky rises, they do million dollar homes and stuff like that, and I eventually wanted to do stuff like that, just do all that stuff and eventually when I had enough money if I could do it I did want to build me (sic) own house.”[10]
[10]Transcript 66, Line 20 – Transcript 66, Line 3
58 I accept that the inability of the plaintiff to engage in employment which he trained for and enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life consequences. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.[11] I accept the plaintiff’s evidence of the pain and suffering consequences relating to his inability to engage in his chosen profession. Counsel for the defendant was critical of the plaintiff for the way in which he dealt with the pain and suffering consequences in his affidavits.
[11]Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35]
59 In his second affidavit sworn on 17 February 2014, the plaintiff deposed:
“5What devastates me about my injury is that I lost my ability to work as a carpenter. I loved carpentry work. I had a good career path ahead of me. I got great satisfaction from building something from start to finish. I had only recently completed my apprenticeship prior to suffering injury. It was my intention to move into the commercial carpentry work and to undertake other self employed work on the weekends. In the long term, I had a desire to build my own home. Prior to suffering injury I considered that I had a good future. I had a job that I enjoyed, and I was likely to earn good money in the future.
6Whilst I am grateful to have work as a screen printer, I do not earn the sort of money that I believe I would have earned as a carpenter. Furthermore, I do not get the same sort of satisfaction from the work that I am undertaking. Working as a screen printer is indoors and like working on a production line.
7Further if I was to lose my job with my current employer my further employment options will always be very restricted. I had no formal qualification other than being a qualified carpenter.
8My ability to undertake manual work is permanently restricted and this causes me great frustration and concern for the future.”
60 All medical witnesses accepted that the plaintiff could not return to his pre-injury employment and imposed restrictions on the work the plaintiff could perform. Currently he works as a screen printer. The work is not physically demanding; he avoids activities which involve heavy lifting. He does not derive the same satisfaction from his current job. He works indoors and the work is like working on a production line. Furthermore, his employment options will always be restricted. I accept that this is a significant consequence for a young man such as the plaintiff aged twenty-eight years, and one which I can take into account.
61 The plaintiff’s evidence is that sport was a big part of his life prior to the injury. He rode off-road motorbikes, played football, basketball and netball. He has attempted to live his life as normally as possible after the work injury, but the back pain he suffers has had a profound effect upon his once very active lifestyle.
62 Prior to the injury, he played football for the Newcomb Football Club, training twice a week, and played in either the Seconds or the Firsts. He attempted to return to football. He reduced his training to one night per week and was only able to play a few games. Whenever he tried to jump, twist and turn, his back pain became severe. He managed to jog gently, but with any vigorous running or tackling, he suffered severe pain. He attempted to continue playing football until 2011, when he stopped.
63 The plaintiff’s evidence was that prior to his injury, he played basketball weekly with friends in the ‘Life Be in it’. He gave up basketball because of the pain.
64 The plaintiff attempted to continue playing netball after the work injury but found that his pain worsened. He is still asked by acquaintances to play netball, but he declines because of the increase in back pain. The plaintiff’s evidence was that sport was a big part of his social life which he has now lost. He told the Court that he was recently invited to a barbecue, which he attended, but when his friends started playing cricket he left.
65 The plaintiff’s evidence was that he played volleyball last year on sand and was playing once a week. He would play for three weeks and then he would have a week off. He agreed volleyball involves jumping. He tries not to jump, but would not say he never jumped. He said he never dived.
66 I accept that the plaintiff’s sporting activities have been restricted as a result of the work injury. The plaintiff conveyed to the Court his love of participating actively in sport. For a young man who has been involved actively in sport, I accept that the restrictions which have been imposed upon his sporting activities are a significant consequence which I can take into account.
67 The plaintiff’s evidence was that before the work injury, he rode off-road motorbikes, a 2-cylinder 250cc off-road bike at the Bacchus Marsh riding track. He sold it because, when he went over jumps, he suffered too much pain. He thought the last time he rode an off-road bike would have been five years ago. He said he was only on the track for about ten minutes when he realised he should not be riding because of the pain in his back. As a result, he purchased a motorbike, which he rode for a period. He enjoyed riding the motorbike but he described it as not as pleasurable as the off-road bike. Now he rides a very small bike, a pit bike. I accept that the loss of riding an off-road bike is a consequence which I can take into account.
68 The plaintiff’s evidence was that his back pain restricts the activities he can perform at home. He said he can manage to mow the lawn; however, he suffers pain when bending to empty the catcher on the lawnmower. His partner now does the majority of the weeding. He continues to attempt to weed, but finds this causes pain and discomfort. He continues to perform domestic activities, but there are tasks, such as cleaning the bathroom or the oven, where he is required to bend over, which cause him severe back pain. I accept the plaintiff’s evidence that these activities cause pain to his back. This is consistent with the restrictions imposed by the medical witnesses.
69 The plaintiff said he had difficulty sleeping. He wakes at night with back pain and struggles to get back to sleep. He has tried three or four different mattresses and has now purchased a special orthopaedic bed to assist with sleeping. He suffers pain when watching television or a movie. I accept this is a consequence which I can take into account.
70 The plaintiff’s evidence was that his family life has been affected by the injuries he has suffered. He enjoyed playing and wrestling with his younger nieces and nephews. He was known within the family as a daredevil and he enjoyed these activities with his younger relations. When he visited Queensland, he was unable to take his nieces and nephews on rides at the fun parks. He attempted the rides, but the pain in his back worsened. He continues to attempt to get on a trampoline with his younger relations, but finds he has to get off after five minutes as his back pain has worsened.
71 Mr Brownbill said, as a consequence of the physical injury and impairment of the plaintiff’s lower back, he is likely to be restricted in relation to social, domestic and/or recreational activities to a moderate degree, which he considered would continue for the foreseeable future. Accordingly, I accept the effect of the consequences on the plaintiff’s sporting, recreational and domestic activities.
72 The plaintiff’s evidence about medical treatment was limited. He said he did not see much point in going to doctors because the doctors always say the same thing: he is given a prescription for Panadeine Forte, told to lie down and to go back to work when the pain subsides. Mr Brownbill said the use of analgesics during periods of pain exacerbation is appropriate. If any other signs of radiculopathy develop, or symptoms of radiating leg pain develop, consideration may need to be given to surgical decompression. Mr Schofield said that if the plaintiff’s condition is limiting his lifestyle to any significant degree, he should be considered for a surgical solution. No doctor suggested that his treatment was inappropriate. All doctors were aware of the medication he was taking, and he reported to a number of the doctors the fact that in an attempt to manage his ongoing low-back pain, he undertook a fitness course at the Victorian Fitness Academy which involved learning a series of core exercises to assist in managing his pain.
73 I accept that his inability to return to carpentry work represents a significant loss to this plaintiff. Given the length of time the injury has persisted and the medical evidence as to permanency, I am satisfied that the plaintiff’s impairment is permanent. As the plaintiff’s consequences have persisted for approximately eight years and the majority of the medical evidence suggests no improvement in the future, in my view, his impairment is permanent.
74 Given the plaintiff’s young age and the medical opinions, he is likely to suffer these consequences for the majority of his life.
75 Taking all the evidence into account, I am satisfied that it is fair to describe the pain and suffering consequences as being more than “significant or marked” and properly regarded as “considerable” when judged by a comparison with other cases in the range. The plaintiff therefore satisfies the narrative test for pain and suffering. In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act.
76 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering is successful.
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