Carter v Ziex Pty Ltd
[2010] VCC 129
•23 March 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
Case No. CI-08-05213
| GARRY CHRISTOPHER CARTER | Plaintiff |
| v | |
| ZIEX PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 4 & 5 March 2010 |
| DATE OF JUDGMENT: | 23 March 2010 |
| CASE MAY BE CITED AS: | Carter v Ziex Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0129 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.174AB – application for leave to bring proceedings in respect of pain and suffering damages only – injury to lower back – plaintiff a credible witness now working in alternative employment – no ongoing treatment of magnitude – whether consequences of impairment sufficient to satisfy “very considerable” test – burden of proof.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Brookes SC with | Stringer Clarke |
| Mr N. Bird | ||
| For the Defendant | Mr P. Scanlon QC with | Lander & Rogers |
| Mr P. Jens | ||
| HIS HONOUR: |
Background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”.
2 The plaintiff seeks leave to bring proceedings in respect of pain and suffering damages only, and, in so doing, relies solely upon sub-paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act. The injury upon which reliance is placed is one to the low back.
3 I will not set out here the numerous authoritative decisions of the Court of Appeal which are relevant. I have referred to them in many previous cases.
4 Mr D. Brookes SC with Mr N. Bird of counsel appeared on behalf of the plaintiff. Mr P. Scanlon QC with Mr P. Jens of counsel appeared on behalf of the defendant. The plaintiff gave evidence and was cross-examined. The balance of the evidence, including surveillance material, was tendered by consent. This saved the Court considerable time and doubtless also saved considerable expense. In addition, detailed and very well prepared submissions were made on behalf of each party.
Factual background
5 The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues of negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 6 The plaintiff impressed me as a completely frank, straightforward and honest witness. I accept him as being both open and reliable. He was prepared to give answers that did not necessarily advance his cause. I accept him as an impressive witness of truth.
7 Mr Kenneth Brearley, surgeon, examining the plaintiff on behalf of his solicitors and reporting on 12 September 2008, described the plaintiff as being decent, pleasant and straightforward. Examining the plaintiff on behalf of the defendant, Mr Jonathan Hooper, surgeon, described the plaintiff as being pleasant and Mr David Brownbill, consultant neurosurgeon, described him as being co-operative without embellishment. Dr Gary Davison, specialist occupational physician, also examining on behalf of the defendant, described the plaintiff as a pleasant and co-operative historian. I agree with all these descriptions.
8 Surveillance film was shown of the plaintiff. In my opinion this did not damage his credit. Indeed, in his closing address, Mr Scanlon referred to credit issues as having fallen away. I shall return to a discussion of the surveillance subsequently.
(ii) The plaintiff’s background, education and employment prior to the injury 9 The plaintiff is aged 38 years, having been born on 16 March 1972. He has lived with his partner for some seven years, and between them they have a total of seven children. Five of those live at home full-time and two live at home approximately 50 per cent of the time.
10 The plaintiff was educated to Year 11 level, and then did a building apprenticeship, following which he qualified as a carpenter. He then worked for some years in the building industry before commencing work with Graham’s Floor Services in approximately 1996. At that time, that entity, which is a predecessor of the defendant, was owned by the plaintiff’s parents, who sold it in 2001. The plaintiff continued working for it. The work which he performed essentially involved the cutting and laying of vinyl flooring and carpet. It also involved some sanding and polishing of floors. The carrying of sheets of masonite and heavy containers of liquid adhesive and rolls of vinyl, as well as the lifting of the sander, were also duties which he performed. In short, the job was one of quite considerable physical demands.
(iii) The injury of approximately July and August 2004 (a) The state of the plaintiff’s health and activities prior to injury 11 I accept that, prior to the injury, the plaintiff was able to perform the demanding physical tasks which have been described.
12 As a child, he was diagnosed as suffering from Perthes Disease of the right hip for which he underwent surgery, subsequently regaining full function of the hip joint. He was able to participate actively in sports. At the age of approximately 22 years he suffered a fracture of the right ankle, this apparently occurring whilst he was playing football in the Warrnambool & District League. This incident marked the end of his football playing career.
13 Subsequently, approximately 10 years ago, the plaintiff fractured his left kneecap when, on a hot night in his bedroom, he tripped on the corner of the bed and struck his knee on the crossbar at the bottom of a fan. I might add that some subsequent entries in medical records referred to a fractured right patella, but the plaintiff is adamant that it was the left knee. Nothing much hangs on this, but I might say that I prefer the plaintiff’s account to what has been recorded years later in some clinical notes. In any event, it was not until considerably after the event that it was discovered that there had been a fracture, and by the time of this being discovered the fracture had knitted to some extent.
14 It is also apparent that the plaintiff had some chiropractic treatment prior to the relevant injury. There was considerable attention paid to this. I accept that, to quote an answer of the plaintiff’s, “Lucky to be three times a year, if that – less”. It may be that some of this sporadic and occasional treatment was directed to the plaintiff’s low back. Indeed, to Mr Brownbill examining on behalf of the defendant, the plaintiff stated that he had noted occasional backache after a heavy day’s work, which ache would respond to chiropractic, but he did not require any time off work and had not suffered any back injury. In cross examination, he stated that any back problem that he had suffered was very minor and that the treatment was usually to his pelvis. Dr Gary Davison, examining on behalf of the defendant on 15 November 2004, took the following history:
“Mr Carter denied any major problems with his back prior to the injury, but he did agree that he had attended a chiropractor ‘twice a year to realign the pelvis’ for the past few years”.
The plaintiff said in evidence that such a description ‘sounds pretty right’.
15 Given the nature of the work which the plaintiff was performing, it does not seem to me surprising that he required occasional treatment for his pelvis, and it also seems to me that his being able to perform such work underlines the accuracy of his evidence that any back complaint prior to the relevant incident of injury was “very minor”. I certainly accept that proposition, and do not regard his credit as having been damaged by any failure to mention this occasional treatment to examining specialists. Similarly, I do not regard the opinions of such specialists as being in any way diluted or adversely affected by any such failure.
(b) The injury in 2004 16 In July 2004 both the plaintiff’s effective employer, Mr Buchanan, and the apprentice, Mr Rowan, suffered injuries not related to work but, were unavailable to perform any duties. That effectively left the plaintiff to “carry on the workload of three men”, as he has sworn in his affidavit of 10 July 2008. Thus, the plaintiff was performing vinyl and carpet laying, and the associated tasks described above, without assistance for some 50-60 hours per week. By mid-August 2004 he began feeling pain in the low back, this continuing until, on approximately 19 August 2004, he awoke with extreme pain in his low back, which pain did not disappear. He could not put on his shoes and was effectively told by his partner that he was unable to go to work. He has sworn in his affidavit that he saw his general practitioner, Dr William Bateman, on the following day, was given a certificate for two weeks off work, and referred for physiotherapy. It was put to him that Dr Bateman’s notes indicated that the plaintiff first saw him on 3 September 2004 and not 20 August 2004. The plaintiff’s response was that his recollection was that he saw Dr Bateman on the day after he found that he could not put his shoes on and his partner told him that he was incapable of going to work. Dr Bateman’s notes also include a reference to the plaintiff seeing a chiropractor at about this time, but the plaintiff could not recall this. Again, I do not consider that a great deal hangs upon these matters. The occurrence of injury is not challenged, and it is apparent that the plaintiff reached a stage of not being able to put on his shoes and not being able to work, and shortly after reaching that level of incapacity, he attended upon Dr Bateman.
17 Shortly thereafter the plaintiff returned to employment, this apparently happening in late September 2004. This consisted of office work, and also of some measuring of floors for quotations, along with some cutting of vinyl and carpet. The cutting duties involved the plaintiff getting down on his hands and knees to measure and cut, and he found this very painful. However, he could pace himself.
18 On 5 November 2004 Dr Bateman certified that the plaintiff could return to full duties in accordance with a return to work plan. The plaintiff alleges that, as part of this plan, he was supposed to be covering small areas only, but his first job upon such return was a very big one involving the covering of a floor which was in a poor state of repair, and thus required preparation involving the use of a heavy sander. After two days the plaintiff claims that he was in extreme pain. There was some dispute about whether he could drive the work van home. He has described the pain the next day as being unbearable. He attended work, and resigned. It would seem that there was some argument between him and his employer, and that the plaintiff had not been happy about receiving a refusal in relation to his request to be permitted to drive the van home.
19 The plaintiff had first attended for physiotherapy on 6 September 2004 and was treated some seven times with manipulation and an exercise program. He had a second course of physiotherapy involving three treatments between 20 April 2005 and 6 May 2005. Save for in the last couple of weeks following a flare-up, he has had no since physiotherapy since. He believed that it was of no benefit to him.
20 Dr Bateman referred the plaintiff to Mr Tiew Han, consultant neurosurgeon, who first saw the plaintiff on 29 August 2005. In that specialist’s report of 4 June 2008, which covers the original visit by the plaintiff and two subsequent visits, there is reference to a CT scan of the lumbar spine showing a prominent L5/S1 disc bulge but no nerve root compromise. At the first consultation, Mr Han advised the plaintiff to consider ongoing physiotherapy and massage and also to walk as much as possible. The plaintiff’s main concerns at that time were lower back pain associated with right hip pain, with pain radiating down the right leg to the level of the ankle.
21 Dr Bateman reported on 13 December 2005 to the effect that the plaintiff had a chronic low back problem dating from August 2004 with pain continuing on and off thereafter. He expressed the view that the plaintiff was not fit for his pre-injury employment of laying carpets and vinyl, and did not think that he would ever be fit for that. He stated that it was unlikely that the plaintiff would be fit for employment involving heavy lifting or prolonged sitting or standing in the future, but felt that he would be fit for modified duties. Dr Bateman referred to the plaintiff having some capacity for re-training in an area not involving heavy lifting, bending and prolonged sitting or standing, whilst also referring to the fact that the plaintiff had worked only as a manual labourer since 1989. It is apparent that an x-ray of the plaintiff’s lumbosacral spine was performed on 23 September 2004, the radiologist reporting a normal study. As has been stated, a CT scan was also carried out, this being done on 26 November 2004.
22 In 2006 the plaintiff commenced seeing Dr Philip Hall at the Jamieson Street Medical Clinic, Warrnambool. In Dr Hall’s report of 24 August 2006, a brief history of events and previous treatment is set out. Dr Hall recorded a history that the plaintiff resigned because he could no longer manage the work on offer, and that he found that many activities of daily living, such as walking the dog or playing outside with his children, were restricted by pain on movement. Dr Hall felt that the plaintiff would not be a candidate for manual employment due to his back pain, and, if he were to maintain any role in paid employment, he would need access to soft tissue therapy or physiotherapy to deal with exacerbations of his chronic back pain.
23 Mr Han then saw the plaintiff in June 2007, when the main complaints were of ongoing lower back pain and some leg pain predominately over the knees. Mr Han organised an MRI of the lumbar spine, and the conclusion of the radiologist was as follows:
“Disc pathology at T12/L1 and at the L5/S1 levels. Shallow disc protrusion at L5/S1 does not appear to result in high grade focal neural compression but contributes to a minor degree of bilateral neural foraminal stenosis. The left paracentral disc protrusion at T12/L1 slightly indents the theca but does not appear to result in focal neural compromise.”
24 The plaintiff was seen again by Mr Han on 30 July 2007, by which time that specialist had viewed the MRI. He formed the opinion that the plaintiff was suffered from discogenic back pain at L5/S1, which pain was intermittent, and he felt that surgery was not necessary. He asked the plaintiff to continue with light exercise and physiotherapy, and made no arrangement to see him again.
25 Mr Han’s conclusion was that the plaintiff should avoid returning to his pre- injury employment which involved repetitive bending and twisting, but that he did not require surgery. He described the plaintiff’s prognosis as being guarded, and stated as follows:
“He had ongoing severe pain for a number of years and I suspect that he will continue to suffer intermittent lower back pain and sciatica which could be easily aggravated by strain to his lower back such as repetitive bending and twisting.”
26 The plaintiff has also been the subject of specialist examination for medico- legal purposes. At the request of his solicitors, he has been seen twice by Mr John O’Brien, orthopaedic surgeon. Upon examining the plaintiff on 18 June 2008, Mr O’Brien took a history of constant pain related to physical activity. He stated that the MRI and CT scan confirmed an abnormal L4/5 disc, and observed that the clinical signs suggested discogenic pain which correlated with the investigations and which indicated an abnormal motion segment at L5/S1. He formed the view that the plaintiff was quite incapable of undertaking his pre-injury occupation, and indeed could not cope with any basic manual work. He also made the following observation:
“The patient’s general activities have certainly been substantially restricted and this will undoubtedly have a marked ongoing impact on his domestic, social and recreational pursuits.
This patient has sustained a permanent impairment of function of the lumbar spine, which is a very considerable injury from which he will not recover.”
27 Mr O’Brien saw the plaintiff again on 5 August 2009. He then took a history of constant back pain now associated with quite marked restriction of lumbar movement without evidence of nerve root compromise. Mr O’Brien stated as follows:
“I would again consider this patient has underlying discogenic pathology with the current symptoms related to the abnormal L5/S1 disc and the pain has now become chronic.”
28 Mr O’Brien viewed the plaintiff’s clinical condition as being stable, and also observed that:
“Overall the prognosis is poor, as I now consider the patient has well-established chronic back pain of discogenic origin, which will continue”.
29 He considered that employment was a significant contributing factor. He repeated his earlier observations concerning the plaintiff’s lack of capacity to undertake any employment involving significant manual duties, and concluded as follows:
“Nevertheless, he certainly remains disabled in regard to his general, domestic, social and recreational activities and this situation in my opinion is permanent.”
30 The plaintiff was also seen by Mr Kenneth Brearley, surgeon, who reported to the plaintiff’s solicitors on 12 September 2008. Mr Brearley noted complaints of constant discomfort or pain in the lower back becoming painful when the plaintiff performed any significant lifting or repetitive bending and stooping or long standing and walking. He also noted pain in both legs at times, and particularly on the right side. Mr Brearley diagnosed mechanical lumbar back pain as a result of demonstrable disc disease of the thoraco-lumbar spine, resulting in chronic low back pain. Whilst he recorded that the plaintiff had returned to work as a personal carer, Mr Brearley expressed the view that the plaintiff was not able to do manual work. He saw employment as being undoubtedly a contributing factor to the injury, bearing in mind the nature of the work in which the plaintiff had been engaged. He also observed that:
“He is certainly suffering from ongoing impairment and disability of the lower back as a consequence of the injury. I am not aware of any specific injury to the knees. He does have referred pain down both legs at times and this includes the knees and this pain is the result of the disc injuries.
The probability is that while doing this very heavy work he did suffer actual intra-disc rupture of both T12 and L5/S1 discs. This has caused the disc protrusions seen on the MRI.”
31 Mr Brearley took the view that the plaintiff’s impairment of back function was permanent and would last for the foreseeable future. He saw the plaintiff as being unable to resume the work that he had previously been doing, or any manual labour. He noted that the plaintiff was now unable to play golf, could not stand in the fishing boat, had difficulty mowing the lawns, could not cut wood, and had difficulty attending to his vegetable garden. He also recorded that the plaintiff was unable to play football and cricket with his children, although the plaintiff’s evidence would indicate that, at least to a certain extent, such history is incorrect.
32 Mr Brearley’s conclusion was as follows:
“Accordingly, the consequences of the injury are in my opinion, quite serious. There is not likely to be any improvement in the foreseeable future at all.”
33 The plaintiff has also been seen by three doctors at the request of the defendant or its insurer. He was seen by Dr Gary Davison, specialist occupational physician, on 15 November 2004. Thus, this report is now considerably out of date. In any event, Dr Davison at that time found that the plaintiff had very good lower back function, although I note that straight leg raising was only possible to 30 degrees bilaterally. He felt that the plaintiff may have suffered a lower back strain, and also referred to “psychosocial issues”, believing that there was some conflict between the plaintiff and his employer. He placed restrictions upon the plaintiff’s activity, but expected a full recovery over the following four weeks. I have no difficulty in accepting that such recovery did not take place. The report of Dr Davison has been overtaken by events.
34 In June 2007 the plaintiff was seen by Mr Jonathan Hooper, surgeon. He diagnosed constitutional degenerative disc disease at L5/S1 which had been aggravated by work, but expressed the view that such aggravation had ceased. He described the plaintiff’s continuing symptoms as being due to the underlying degenerative disease. This is a proposition which I do not accept. The plaintiff was, effectively, symptom free and engaging in heavy and demanding work prior to the incident of injury. He has suffered the symptoms recorded above thereafter, and also is now unable to engage in manual work. It seems to me that the views of Mr O’Brien and Mr Brearley, when combined with the evidence of the plaintiff, have a more logical basis and I prefer them. The relevant injury triggered the plaintiff’s symptoms and restrictions, and they have existed every since.
35 The plaintiff was also seen by Mr David Brownbill, consultant neurosurgeon, at the request of the defendant. This examination took place on 21 February 2008. Mr Brownbill, having observed that the plaintiff was co-operative without embellishment, expressed the view that he had a demonstrated L5/S1 lumbar intervertebral disc derangement as shown on MRI scanning and with examination findings showing restriction of thoraco-lumbar spinal movements, but no neurological abnormality. He felt that the plaintiff’s impairment had stabilised, and was prepared to make a whole person impairment in accordance with the AMA guides, the pre-requisite for which is that such impairment be permanent. As Mr Brownbill’s examination and report were primarily focused upon whole person impairment within the meaning of the AMA guides, other relevant observations are very limited. However, he has taken a history of injury, and there is nothing in the report of Mr Brownbill to suggest that any impairment resulting from such injury was in the nature of a temporary aggravation. The fact that he was prepared to make a percentage assessment based on permanent impairment seems to indicate a contrary belief.
36 The examinations and reports of Mr O’Brien and Mr Brearley are the most current, and also seem to me to have a basis in logic. I accept them. I accept that the plaintiff suffered an injury by way of the aggravation of degenerative disease of the lumbar spine, and particularly at L5/S1, this resulting in discogenic pain and to which the plaintiff’s employment has been a significant contributing factor. As stated by Mr O’Brien, employment is a significant contributing factor to the current lumbar pathology.
37 As the injury is in the nature of an aggravation, in accordance with the authorities it is the aggravated condition which I shall take into account. In the present case, and as stated, I accept that the plaintiff was essentially free of symptoms and restrictions prior to suffering the relevant injury, so that the impairment and consequences which I shall take into account are basically those from which the plaintiff has suffered since the injury and continues to suffer.
38 I am also satisfied that the impairment and its consequences are permanent within the meaning of the Act. As stated, I do not accept the proposition advanced by Mr Hooper, but prefer the views of Mr O’Brien and Mr Brearley. The opinions of those specialists in this regard seem to be similar to that of Mr Han, the treating neurosurgeon, who has referred to the plaintiff’s prognosis as being guarded, and, by inference, they do not seem to be in conflict with what has been reported by Mr Brownbill. I also note that, as far back as 2005, Dr Bateman, then the treating general practitioner, was expressing the view that the plaintiff would be unlikely to be fit for employment involving heavy lifting or prolonged sitting or standing in the future, and dated the plaintiff’s chronic low back problem back to the occurrence of injury in 2004. In summary, I am of the view that the plaintiff’s symptoms and restrictions are permanent within the meaning of the Act and will persist for the foreseeable future.
(iv) Developments since the injury 39 The fact that the plaintiff returned to work with the defendant on restricted duties, ultimately worked for a couple of days on heavier duties, and then resigned, has already been discussed. Following cessation of employment with the defendant, this occurring in November 2004, the plaintiff was in receipt of statutory benefits for a period until these were terminated. During 2007 he performed some volunteer work as a carer, before commencing work with Karingal in Warrnambool as a personal carer on 5 November 2007. This work involves him looking after approximately 14 clients for some 30 hours per week. These are clients with disabilities. He does such things as taking them to doctors, hairdressers, community activities and the like, and helping to feed and dress them. There is one client who requires assistance in bathing.
40 Indeed, surveillance film taken of the plaintiff and shown to the Court included coverage of him performing his duties as a carer. In the video he is shown assisting a client who has suffered from a stroke. The plaintiff was shown taking the client on an outing which included visiting a coffee shop. The client is quite a sizeable man who is confined to a wheelchair. It is quite noticeable on the video that the plaintiff does not take the client’s weight when assisting him in and out of the van in which he conveys him. There is nothing in this segment of video which is in any way damaging to the credit of the plaintiff. Indeed, whilst another segment of the video material showed the plaintiff loading his van with bags of shopping, this is a case where, as stated by Mr Scanlon, credit issues fell away, and I do not regard the surveillance shown as having any major adverse impact.
41 The plaintiff continues in his work as a carer, and I accept that he is very careful in how he goes about his work and, indeed, about other activities. The plaintiff has suffered a recent exacerbation of his back pain whilst working as a carer. He was dragging a light table along a floor so as to improve wheelchair access for a client, and approximately an hour later noticed pain. He made an appointment with a doctor who gave him a week off work and prescribed some anti-inflammatories. After a few days his pain reduced significantly to being only slightly greater than that which he had been previously experiencing. He has also had some physiotherapy in relation to this.
Ruling 42
In my opinion the plaintiff has discharged the burden of proof in this matter. I have arrived at this conclusion for the following reasons, which are not listed in order of importance.
(a)
The plaintiff has been forced to give up his occupations of choice. He is not fit for his pre-injury occupation of a carpet and vinyl layer. He is a qualified carpenter who worked for some years in the building industry. He is now, essentially, unable to do manual work. He is working as a personal carer on a part-time, approaching full-time, basis. He carries out those duties carefully, and with some difficulties. The occupations for which he is qualified and in which he worked are now closed to him.
(b)
The plaintiff has underlying discogenic pathology which explains his symptoms and restrictions. That pathology has been demonstrated by the radiological investigations.
(c)
Whilst the plaintiff has not had a great deal of treatment, and his present regime essentially consists of taking painkillers which are available “over the counter”, I accept that there is not much more that could be done for him by way of treatment. Mr Han, the treating neurosurgeon, has expressed the view that surgical intervention carried a low likelihood of success, and in 2007 advised the plaintiff to consider physiotherapy (which the plaintiff had not found helpful) and remedial massage, and to avoid repetitive bending and twisting of his back. Mr O’Brien, after referring to the plaintiff’s condition as being well- established chronic back pain of discogenic origin, also noted in his more recent report that the plaintiff now basically manages his ongoing pain by avoiding aggravating factors and by the use of occasional analgesic medication. He commented that the chronic nature of the plaintiff’s problem would suggest that it is unlikely to respond to any further conservative treatment. In his report of 24 August 2006, Dr Hall referred to the fact that, if the plaintiff were to maintain any role in paid employment, he would need access to soft tissue therapy/physiotherapy to deal with exacerbations of his now chronic back pain. Such an exacerbation has occurred recently and the plaintiff is being treated accordingly. Thus, whilst the plaintiff’s regime of treatment is minimal, it has not been suggested by those treating him or those examining him for medico-legal purposes that he should be undertaking some more radical form of treatment. However, his pain is seen as chronic. Indeed, in his report of 4 June 2008, Mr Han has referred to the plaintiff’s “ongoing severe pain for a number of years”.
(d)
In relation to the plaintiff’s pain, I accept that it is chronic and can be of varying intensity. In his affidavit of 10 September 2009, he has sworn that every single day when he wakes up he is immediately aware that he has “a crook back”, with a dull persistent ache which is aggravated when he simply sits up and turns to get out of bed. I accept that, when he is trying to sleep, if his back “catches”, he is awoken. I accept that there is pain if he bends over. When asked to compare the back pain which he has had since the 2004 incident with the occasional back complaint that he had in the days prior to the injury and when he visited the chiropractor on a few occasions, he described it as “twentyfold or more”. The plaintiff is aged 38 years, having just celebrated his birthday. There is no reason to suggest that he has anything other than a normal life expectancy. Thus, pain of the level described could persist for the next 40 years of his life.
(e)
The injury has caused interference with various aspects of the plaintiff’s life. Prior to the injury the plaintiff played golf once or twice a month on the nine hole course at Deakin University. He freely admitted that he did not play competitive golf and was not familiar with all golfing terms, but I accept that he did have the expectation of taking the game up seriously. Since the injury he has only played twice, being unable to complete nine holes on one of those occasions. He stopped after six holes because he was getting too sore and his back that night was a lot worse than normal. Apart from those two occasions, he has not played and does not believe that he could play. Essentially it was put to him by Mr Scanlon that it was impossible for him to say that he could not play golf because he had not been giving it a try, but I accept the plaintiff as witness of truth, and I accept that he has given an accurate description of his limitations. He has tried to return to golf, and believes that he could not play it. It seems to me to be reasonable that he is aware of his limitations. Bearing in mind his experience, and the medical opinions, it seems to me that participation in golf is something that has been lost to him.
(f)
I also accept that the plaintiff has difficulties in going fishing because of his inability to stand as required in his father’s boat when fishing for snapper at sea. He had been fishing since he was a child, and his father and younger brother still go out on a regular basis. When asked whether he would like to go, the plaintiff replied “I’d love to”. He has tried river fishing, where he can sit down, but clearly misses being able to go sea fishing with his father and brother.
(g)
The plaintiff was also a keen surfer and had surfed on quite difficult beaches. He is aware that he would be at risk of hurting himself if he now went surfing. He thinks he is now not capable of doing it, and does not want to hurt himself. He has not been able to take his boys out surfing and, when asked whether he would like to, again replied “I’d love to”. Thus, as with the sea fishing with his father and brother, the plaintiff has been deprived of a family activity in which he would very much like to participate.
(h)
I also accept that, whilst the plaintiff can engage in some activities with his children, he is restricted in this regard. He admitted freely that the history obtained by Mr Brearley that he is unable to play football and cricket with his children is erroneous, in the sense that he can and has carried out these activities on a modest scale. For example, the plaintiff has not engaged in any activities with his children this year, although he has taken them to cricket. He estimated that, in the year 2009, he may have engaged in some activity, such as a kick of the football or a bowl of the cricket ball in the backyard, on a dozen occasions. He stated that he would have liked to have had a much greater involvement. I accept that he has experienced difficulty in doing such things. As he stated in his affidavit of 10 July 2008, he occasionally has a kick in the backyard with his children but invariably ends up in pain.
(i)
The plaintiff has also experienced difficulties in doing things around the house. His father has had to mow the lawn for him on occasions. As he stated in his affidavit of 10 September 2009, he has difficulty doing anything physical in his life, and most of his energy goes into getting to work and being able to stay at work.
(j)
His partner has sworn an affidavit of 14 January 2010 in which she has described the contrast between the plaintiff before his injury and his condition afterwards. She has referred to him as being a really fit and energetic young man before the injury, but now, if he overexerts himself, he can hardly walk.
(k)
In his affidavit of 10 September 2009, the plaintiff has sworn that any intimacy with his partner is now painful and difficult. He was not challenged in relation to this. Given that this state of affairs will persist for the foreseeable future, it constitutes a consequence of some magnitude.
(l)
That the plaintiff suffers from flare-ups and has to be particularly careful in what he does has been illustrated by the incident described in his affidavit of 11 February 2010. As previously discussed, on 21 January 2010 he moved a small, light table in order to improve wheelchair access for a client. This caused a significant increase in his pain, and resulted in him seeing a doctor, being prescribed some anti- inflammatories, and being certified off work. He also had some physiotherapy. This sounds as if it is the very sort of exacerbation predicted by medical examiners, and is also some measure of the susceptibility of the plaintiff to further flare-ups of pain now that his pre- existing condition has been rendered symptomatic by the relevant incident.
(l)
I also accept, and it was not the subject of any great challenge, that the injury has had a considerable impact upon the plaintiff’s family life generally. The family can no longer sit down and dine together because of the plaintiff’s inability to sit still for any length of time. I should add that I observed the plaintiff’s behaviour in this regard in the courtroom and witness box, and it seemed to me that, consistently and genuinely, he was forced to alter his position frequently and regularly. He has sworn that he now usually lies in bed to watch television, and rarely sits with the family on a couch. These matters might also be indicative of the accuracy of his statement that, in essence, he uses all his energy to go to work and stay at work. Again, this sort of interference with family life is something that will persist for the foreseeable future.
43
In summary, when all of the above are taken into account, it seems to me that the plaintiff has satisfied the “very considerable” test after the required comparison is made with other cases in the range of possible impairments or losses of a body function. After such comparison, the plaintiff’s impairment and its consequences could fairly be described as being more than significant or marked, and as being at least very considerable.
Conclusion
44 The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings for damages in respect of pain and suffering. I will hear the parties as to any ancillary orders that may be required.
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