Colombini v VWA

[2022] VCC 2268

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. CI-21-04593

JOEY COLOMBINI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2022
DATE OF JUDGMENT:	16 December 2022
CASE MAY BE CITED AS:	Colombini v VWA
MEDIUM NEUTRAL CITATION:	[2022] VCC 2268

REASONS FOR JUDGMENT
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Subject:Common law

Catchwords:          Serious injury; Industrial accident; Spinal injury; Consequences;

Pain and suffering

Legislation Cited:         Workplace Injury Rehabilitation and Compensation Act 2013

sections 325, 335

Judgment:  Leave granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. Scully	Slater & Gordon
For the Defendant	Ms D. Manova	Hall & Wilcox

HIS HONOUR:

Introduction

1Joey Colombini is a 31 year old storeman who had been employed in that role by Armco Barriers Pty Ltd (“the employer”) from around February 2018.

2He sustained an injury to his back on 21 March 2018 whilst loading safety barriers onto a forklift.  The circumstances of this incident were not in dispute. 

3In the present application Mr Colombini seeks leave to claim damages in respect of pain and suffering on the basis that he has suffered serious injury as defined in s 325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”). He relies upon paragraph (a) of the serious injury definition and identifies the spine as the body function relevantly lost or impaired.

4Mr Scully of counsel, who appeared on behalf of Mr Colombini, noted the original application had additionally relied upon paragraph (c) of the serious injury definition.  He confirmed that Mr Colombini would not be pursuing his application for leave on this basis.[1]

[1]Transcript (“T”) 2, Line (“L”) 12-15

5Insofar as the present application was concerned, the principal issue between the parties was the extent of consequences suffered by Mr Colombini. 

6Ms Manova, who appeared on behalf of the defendant, identified the issue as one of range of consequences.  She noted the high legislative threshold and the limited extent of medical treatment and investigation provided to the plaintiff.  She also noted that the plaintiff had returned to physical work in early 2021, which she ultimately submitted was inconsistent with a finding of serious injury.

7Mr Colombini and his partner, Ms Sheena Clarke, were each required for cross‑examination.  The parties otherwise tendered material from their respective court books as evidence in this application.

The evidence

8Mr Colombini swore two affidavits in support of his application on 29 June 2021 and 10 May 2022.[2]  A further affidavit was sworn by his partner, Sheena Louise Clarke, on 27 May 2022.[3]

[2]Exhibit A, pp 7-13

[3]Exhibit A, ,pp 14-16

9In summary, Mr Colombini, who now resides in Diggers Rest, was born in Melbourne and left school at the age of 14 after a somewhat difficult upbringing.  He commenced an apprenticeship as a panel beater but did not complete it.  He then performed various labouring jobs and spent some time unemployed.  He commenced working with the employer around February 2018 as a storeman.

10He described in his first affidavit the lifting incident involving a large safety barrier weighing approximately 80 kilograms.  When the incident occurred he described feeling immediate severe pain in his middle and upper back.[4]

[4]Exhibit A, p 8 [5]

11He kept working on that day, but found it very difficult to sleep, and after attending work on the following day he was sent home early due to back pain.  He then attended his general practitioner, Dr Ahmed, on that day.

12He was prescribed medication and referred for various investigations.  He deposed to an MRI taken in mid-June 2018 revealing:

“… a broad-based posterior disc bulge with a right paracentral protrusion at the T9/10 level.”[5]

[5]Exhibit A, p 8 [7]

13He had been receiving physiotherapy from early May 2018.  This apparently ceased due to funding issues in around mid-2019.  He was then referred to Dr Ong for pain management treatment which continued until approximately 29 August 2019.

14Mr Colombini had been prescribed medication for anxiety and depression pre‑dating the occurrence of this incident and described in his first affidavit:

“… a constantly low mood, and my motivation has been significantly affected.  I find that I’m constantly exhausted.”[6]

[6]Exhibit A, p 8 [9]

15Mr Colombini described suffering ongoing pain in his middle and upper back in his first affidavit.  He described various postural restrictions and was taking over‑the‑counter pain medication due to the mental side effects caused by the stronger pain killers.  He was seeing a physiotherapist approximately once a month.  He described his sleep being affected stating:

“My sleep is affected by my back pain, and I tend to wake up as often as eight or ten times over night.”[7]

[7]Exhibit A, p 9 [11]

16Mr Colombini described his back injury impacting his ability to attend gym regularly and to engage in mountain bike and motorcycle riding.  He also made reference to his relationship with his wife breaking down, stating that he had separated from her in late 2018.  Mr Colombini also made reference to difficulties involving the care of his then eight year old son, who had been diagnosed with ADHD and been assessed as being on the Autism spectrum.[8]

[8]Exhibit A, p 9 [14]

17At the time of swearing his first affidavit he described recently returning to work performing weeding for a landscaping company.  He had not returned to work for the employer following his injury.

18In Mr Colombini’s second affidavit, sworn shortly prior to the hearing, he deposed to continuing to suffer pain in his mid-back and around his shoulder blades, although this pain also radiated up and down his spine.  He continued to take Nurofen medication and avoided heavy medications as they impacted on his mental state, and he was concerned about becoming addicted to narcotic medications.[9]

[9]Exhibit A, p 12 [8]-[9]

19His sleep remained affected and he deposed to only getting what he described as three hours of disrupted sleep, also stating that he would wake up on numerous occasions up to ten times a night due to back pain.

20He had changed jobs since swearing his previous affidavit, noting that the work with the landscaping company frequently aggravated his back pain.  He was now primarily truck driving for another landscaping company.

21He deposed to his fitness being impacted by his back injury, and also made reference to the difficulties in caring for his nine year old son.  His partner, Ms Clarke, had moved in with him and she provided help with the care of his son.  He deposed to Ms Clarke performing all of the household task such as cooking and cleaning.

22When cross-examined the following evidence emerged:

·        Mr Colombini had a certificate qualifying him in horticulture, together with certificates in welding and traffic control.  He had not applied for welding work as it required constant bending.[10] 

[10]T 10, L 15-23

·        He had obtained the certificate in horticulture as his previous employment required some spraying of chemicals.  This was work he had done following his injury.[11]

[11]T 12, L 1-21

·        His current job was with an organisation called Peeko Constructions.  He was mainly doing truck driving and delivery:

“… and I might have to undo a few straps off the truck, which involves labouring.”[12]

[12]T 13, L 6-27

·        Mr Colombini agreed that he had recently served a term of imprisonment of around 38 days, apparently in relation to offending against his ex-wife:

“When it got to court and I got released the judge didn’t even know why I was in there, … So they gave me time served, charges got dropped because I produced some evidence that showed that all the charges put on me were not true.”[13]

[13]T 16, L 28 to T 17, L 4

·        He confirmed that he made contact with the Department of Human Services and had full custody of his son.[14]

[14]T 17, L 5-12

·        Mr Colombini agreed that he had sometimes performed home maintenance, including lawn mowing.  He was provided some assistance through WorkCover on a couple of occasions:

“… so the lawns were getting really, really, really big so I tried to attend to it when I could and push through the pain when I was doing it.”[15]

[15]T 18, L 24 to T 19, L 6

·        He had met his partner, Sheena, in about August 2021 and she had moved in in approximately February 2022.[16]  She also had a son of a similar age who would stay with them on a fortnightly basis.  Ms Clarke was not working at present, but had previously conducted a business as a dog groomer in Phillip Island.[17]

[16]T 19, L 26 to T 20, L 1

[17]T 20, L 3-30

·        Mr Colombini confirmed that he had had radiological examinations in 2018 and his ongoing treatment currently involved mainly physiotherapy:

“... try to get as much as I can, but WorkCover only sets me a limited number of things, so I have to try and space it out as much as I can.”[18]

[18]T 21, L 27-31

·        Mr Colombini agreed that he was taking Nurofen and Panadol for his pain:

“At the start I had Panadeine Forte, but it was just making me really tired and drowsy all the time.  So I won’t take anything more than Nurofen.”[19]

[19]T 23, L 17-22

·        He had ceased a pain management course in September 2019:

“All they were doing is wanting to prescribe new medications to me.  Weren’t giving me any physical exercise or physiotherapy which was stated at the start of the plan.  So, I rang up WorkCover and said I did not want to continue with this.  My pain’s not decreasing, if anything it’s just playing a massive turn on my mental health …”[20]

[20]T 23, L 23 to T 24, L 16

·        He had tried meditation and yoga to assist with his sleeping.  He did not want to take further medication to mask his pain, as he feared he would get addicted:

“… nothing really works.  Constantly in pain, you can’t mask pain during your sleep waking up that you’re that uncomfortable that you can’t sleep with your pain. …”[21]

[21]T 25, L 14-31

·        Mr Colombini described his pain as very consistent:

Some days are better than others and some days are really bad.  Like today….”[22]

·        Mr Colombini was uncertain whether he had seen a neurosurgeon, but did not want to have surgery at his age:

“… if there is other options for me to explore and other things for me to physically actually improve myself, like physiotherapy, or hydrotherapy, working in a gym and exercise to gain strength, or whatever to get through anything.  I’ll just do that rather than being – get my back fused as a quick fix.”[23]

·        Mr Colombini described his former gym activities as involving him lifting 100 kilo weights:

“I’m down to five kilo weights, and doing exercises that the physio instructs to at the time.”[24]

·        He agreed he had some gymnasium equipment at home, but was mainly using a treadmill to do cardio exercises.  He agreed he had done weight lifting and body building before his injury.[25]

·        Mr Colombini agreed that he was taking testosterone to help him regain muscle strength in his back.[26]

·        Mr Colombini agreed that he had been charged with criminal offences of persistent breach of an intervention order, which he stated was due to sending messages rather than any act of violence.  He also agreed that he had committed a similar offence as a teenager.[27]

·        Mr Colombini agreed that he had previously ridden both a dirt motorcycle and a mountain bike, both of which he had disposed of.  He maintained that he could not do off-road riding due to the jumps and sharp manoeuvres required.  He did retain a Harley Davidson road bike, which he rode occasionally.[28]

·        Mr Colombini agreed in cross-examination that he tried to cook sometimes, although activities such as standing over a stove or preparing food sometimes caused pain.[29]

[22]T 26, L 4-13

[23]T 26, L 14-24

[24]T 30, L 8-24

[25]T 31, L 38 to T 32, L 30

[26]T 35, L 26 to T 36, L 5

[27]T 36, L 9 to T 37, L 19

[28]T 40, L 3 to T 41, L 11

[29]T 44, L 1-20

23In re-examination Mr Colombini explained that his current role with Peeko Constructions involved basically that of a truck driver.  He stated there were a couple of other truck drivers also employed with some employees such as team leaders doing additional duties:

“… they’re hard on the field all day, they do all the stuff, yeah, they do all the construction labouring and that sort of stuff.”[30]

[30]T 45, L 15-29

24He described the work as taking a toll on him and his driving was generally limited to about 45 minutes.

25Mr Colombini also gave evidence that his nine year old son, who suffered from ADHD and Autism was a very enthusiastic child, and enjoyed:

“… outdoor stuff, playing sports, I used to be able to do it and can’t do.  So, he is a lot more full on now, like he’s a lot more challenges, lot more upset, … lot more difficult now because he hasn’t got his mind focused on what he used to do.”[31]

[31]T 46, L 10-25

26Mr Colombini’s partner, Sheena Clarke, affirmed a brief affidavit in support of Mr Colombini’s application on 27 May 2022.[32]

[32]Exhibit A, pp 14-16

27At the time of swearing the affidavit, Ms Clarke had known Mr Colombini for around 10 months, and had been living with him since March 2022.  She stated that prior to moving in she had spent most of her time at his home in Diggers Rest.  She confirmed that she was doing most of the domestic chores:

“I do all the cleaning inside the house including the vacuuming, mopping and making the beds.  I have observed Joey at times attempt to do some of these chores.  However, I have observed that it causes him too much pain.”[33]

[33]Exhibit A, p 14 [4] to 15

28She deposed further as to assisting Mr Colombini with the care of his son and made observations of him being in pain, which she described as appearing worse when he came home from work:

“On most days, Joey calls me on the way home from work and asks me to run the bath, so it is ready for him when he gets home to relieve some of his pain. … On some occasions when he is in a lot of pain, I have to assist him getting in and out of the bath and help him with putting socks on.”[34]

[34]Exhibit A, p 15 [7]

29She also made reference to Mr Colombini’s broken sleep:

“I am often woken up by him tossing and turning.  Sometimes Joey is in so much pain at night that he asks me to help him to roll over in bed.”[35]

[35]Exhibit A, p 15 [8]

30Ms Clarke was briefly cross-examined.  She confirmed that Mr Colombini still had a Harley Davidson motorcycle at home in the garage, but she had not been for a ride on it:

“No, I haven’t, he rarely rides it.”[36]

[36]T 51, L 21-30

31Ms Clarke also confirmed that there was a treadmill in the garage and weights:

“Only very light ones … Five kilo.”[37]

[37]T 52, L 1-11

32She also confirmed that she believed Mr Colombini’s mother had come to assist with the cleaning prior to her moving in with him.[38]

[38]T 52, L 29 to T 53, L 11

33Ms Clarke also agreed that she would run baths for Mr Colombini about three or four nights per week.[39]

[39]T 54, L 13-16

34Ms Clarke confirmed that on the weekends they would go for a walk or just spend time at home with the children.  She only had care of her son two days a fortnight.[40]

[40]T 56, L 2-17

35When re-examined Ms Clarke agreed that she had observed Mr Colombini get up and move around during social activities such as going to movies or going out for dinner.[41]

[41]T 57, L 1-11

36Ms Manova, on behalf of the defendant, called no oral evidence, but tendered records from the Office of Corrections and Facebook material, to which reference had been made during cross-examination.[42]

[42]Exhibit 1, pp 221 to 232 & 248 to 270

The medical evidence

37Mr Scully on behalf of the plaintiff tendered into evidence reports from two general practitioners, Dr Iqbal from the Scott Street Medical Centre in Melton dated 16 March 2020[43] and Dr Botros from the Diggers Rest Medical Centre dated 24 August 2020.[44]

[43]Exhibit A, pp 21-22

[44]Exhibit A, pp 23-24

38The only other material from any treating practitioner was comprised of three physiotherapy reports from Mr Nicholas Bohlen in Melton dated 3 May 2020, 22 July 2020 and 9 May 2022.[45]  Mr Scully also tendered into evidence a medico legal report from Mr Mohammed Awad, neurosurgeon, dated 24 March 2022.[46]  There had also been radiology performed in 2018 and Mr Scully tendered into evidence an x-ray report of the thoracic spine dated 20 April 2018 and a subsequent MRI of the thoracic spine dated 28 June 2018.[47]

[45]Exhibit A, pp 25-29

[46]Exhibit A, pp 38

[47]Exhibit A, pp 17-20

39For completeness I note that the plaintiff’s solicitors had arranged for Mr Colombini to be examined for the purposes of a psychiatric report, although this was ultimately not tendered in evidence in the present application.

40Ms Manova on behalf of the defendant tendered into evidence a somewhat dated report from Dr Angus Forbes, occupational physician, dated 26 March 2019.[48]  A more recent occupational physician’s report prepared by Dr Philip Mutton dated 17 March 2020 was also tendered,[49] as was a report from Associate Professor Evange Romas, rheumatologist, dated 11 March 2021,[50] and two reports from Dr Tony Kostos, rheumatologist dated 22 February 2022 and 5 April 2022.[51]

[48]Exhibit 1, pp  9-19

[49]Exhibit 1, pp 22-27

[50]Exhibit 1, pp 28-34

[51]Exhibit 1, pp 35-40

41The reports provided by the plaintiff’s treating practitioners, Dr Iqbal, Dr Botros and the physiotherapist, Mr Bohlen, tend to a conclusion that the incident occurring on 22 March 2018 resulted in injury to the mid-thoracic spine with a noted disc abnormality recorded on the MRI performed in June of that year.  However, the actual nature of the injury could not be determined on the basis of those treatment reports.  Nevertheless it is of assistance to note the recording by both general practitioners, and in particular the physiotherapist, of the ongoing complaints of back pain since 2018.

42In this case the opinion of Mr Awad notes that the incident on 23 March 2018:

“… was causative of his thoracic disc prolapse.  In my opinion, the incident remains the dominant contributing factor to his ongoing pain, disability and requirement for treatment.”[52]

[52]Exhibit A, p 40

43Mr Awad’s formal diagnosis is valuable in identifying the injury suffered by Mr Colombini:

“1.  Acute thoracic disc prolapse.

2.  Aggravation of thoracic spondylosis with ongoing pain sequelae.”[53]

[53]Exhibit A, p 40

44The opinions relied upon by the defendant to some extent provide alternative diagnoses.  Dr Forbes, in March 2019, noted the MRI demonstrating a T9/T10 disc protrusion.  His examination was not consistent with a neural impingement.  He stated:

“Thoracic disc herniations are common and it is not clear that this radiological finding is directly related to his symptoms.  The cause of his symptoms is unclear and his symptoms are most consistent with a thoracic sprain.”[54]

[54]Exhibit 1, p 13

45Dr Forbes went on to state that the symptoms of an acute strain of the thoracic spine would have been expected to resolve over the course of six to eight weeks.  His report written approximately 12 months after the incident was not optimistic that further treatment would lead to any significant improvement.  Dr Forbes also stated:

“It is unlikely that there would be a significant change in his capacity to perform his activities or return to work.

… The worker’s history and assessment is consistent with a thoracic strain.  The cause of his ongoing symptoms is not clear.”[55]

[55]Exhibit 1, p 14

46Dr Forbes felt Mr Colombini could return to his pre-injury hours, but also stated:

“It is not clear that he could return to his pre-injury duties immediately without a foreseeable risk of worsening his symptoms.”[56]

[56]Exhibit 1, p 15

47He recommended a structured return to work.

48Dr Philip Mutton examined Mr Colombini on 17 March 2020.  In his report he notes of Mr Colombini:

“He provides a history of acute thoracic pain as described when doing a heavy lift.  Investigations do identify a right-sided T9-10 paracentral disc protrusion.  He has had no neurosurgical opinion in regards to management of that.  He was having some community physiotherapy.  He tried a pain management program but found that unhelpful.  There has been no positive progress since the date of injury.  He has since done some day courses in terms of truck driving licences but had difficulty with entry and exit from trucks.  He presents as quite well with no abnormal pain behaviours.  His development of symptoms to include the hands is inconsistent with the known pathology in the thoracic spine.  No further investigations have been undertaken. 

It is therefore difficult to assess this man’s physical capacity as there is a mismatch between the symptoms, clinical findings and known pathologies.  There was nonetheless opportunity for injury occur based on the description of events as described above.”[57]

[57]Exhibit 1, p 24

49Dr Mutton diagnosed Mr Colombini effectively as suffering from a disc protrusion stating:

“The worker has evidence of a T9-10 right paracentral disc protrusion based on MRI of 15 June 2018.  That is consistent with the location of his pain.  The condition has not resolved.

The injury may have occurred in the manner described.  In my experience thoracic disc prolapse is rare.  In view of the continuity of symptoms employment remains a cause.”[58]

[58]Exhibit 1, p 25

50Associate Professor Romas examined Mr Colombini on 11 March 2021.  His diagnosis was that of:

“unresolved thoracic spine injury.  Probable discogenic pain.”[59]

[59]Exhibit 1, p 29

51He regarded the prognosis as likely to be good.  He also stated:

“Joey describes the mechanism of injury involving axial (spinal) loading and twisting.  He indicates his pain has always been located at the same spot.  Therefore, and with the greatest respect, Dr Boffa’s diagnosis of a ‘resolving T4 costovertebral joint dysfunction without radiculopathy’ is off the mark.  The patient’s pain is located well below the tip of the scapula (T7), at T9, and this corelates with the MRI.”[60]

[60]Exhibit 1, p 30; The reference to Dr Boffa’s diagnosis relates to an earlier report prepared by Associate Professor Umberto Boffa dated 29 August 2018 which was contained in the defendant’s court book.  Neither party sought to tender Associate Professor’s report into evidence.

52Dr Tony Kostos examined Mr Colombini on 16 February 2022 and reported to the defendant’s solicitors on 22 February 2022.  He recorded complaints of pain:

“… throughout his entire spine, shoulder and hip girdles.  He also complains of intermittent tingling and numbness in his left arm, extending to his left middle ring and little fingers.  He also added that ‘my sciatic nerve plays up,’ referring to his left leg.”[61]

[61]Exhibit 1, p 36

53He recorded examination findings consistent with Mr Colombini’s diffuse areas of pain.  Dr Kostos expressed the following opinion:

“My examination today revealed widespread tenderness with discrepancies and inconsistencies on physical examination and non-organic signs as described by Waddell. 

…

I did not find any evidence of radicular pain extending from his cervical spine or lumbar spine, but he may have a coincidental left ulna nerve neuropathy, which clearly does not relate to the incident described.

Therefore all that can be state is that he has widespread pain consistent with a chronic pain syndrome and it would be difficult to know whether he has any ongoing specific musculoskeletal injury.”[62]

[62]Exhibit 1, p 37

54He regarded Mr Colombini’s prognosis as poor, but could not really comment on whether or not the employment incident continued to be relevant to Mr Colombini’s ongoing complaints.

55Dr Kostos provided a supplementary report, having reviewed records from the Scott Street Medical Centre in Melton.  He stated that there was very little information of clinical relevance in those records.  He also reviewed records from the Diggers Rest Medical Centre noting that there was one mention of neck pain noted in December 2021 but a history of “ongoing back pain” shortly afterwards, again in December 2021.  Dr Kostos stated:

“Therefore there now does appear to be little likelihood that he has ongoing spinal problems which were significantly or materially contributed to by the physical aspects of his previous work.”[63]

[63]Exhibit 1, p 39

56It would appear Dr Kostos was not provided with the physiotherapy material from Mr Bohlen’s clinic.  Certainly the three reports tendered in evidence in this application note the main complaints as “upper back pain and stiffness.”[64]

[64]Exhibit A, p 25

57Additionally, in Mr Bohlen’s most recent report dated 9 May 2022 he stated:

“In June 2018 Joey had an MRI done, and it was shown a disc prolapse at T9-T10 level.  These findings are compatible to his reported areas of pain and tightness, such as, mid back, lower back, and shoulder girdle.”[65]

[65]Exhibit A, p 34

Analysis

58I accept Mr Colombini to be a truthful and reliable witness who did not attempt, in my view, to embellish or exaggerate his symptom complex.  I accept that following the incident in March 2018 he has suffered from frequent bouts of pain mainly in the mid-thoracic region with some degree of radiation into the shoulder girdles and middle back.  This symptom complex is also supported by the evidence of his partner, Ms Clarke.  I also found her to be a truthful and reliable witness.

59Mr Colombini was referred by his general practitioners only to a physiotherapist and a pain management clinic.  The pain management program was unsuccessful.  The only neurosurgical opinion is that provided by Mr Awad concluding that the incident of 23 March 2018 was causative of his thoracic disc prolapse.  Mr Awad provided a diagnosis of acute thoracic disc prolapse and aggravation of thoracic spondylosis with ongoing pain sequelae. 

60I accept his diagnosis is more likely to be correct.  It is supported by the opinions of Dr Mutton, Associate Professor Romas, and particularly with the lengthy treatment history recorded by the physiotherapist, Mr Bohlen.

61Areas of pain and inconsistent findings to support a physical or organic basis for Mr Colombini’s complaints may well have impacted on the opinions expressed by Dr Kostos and the somewhat dated report from Dr Forbes, who diagnosed a thoracic sprain in March 2019.

62I am comfortably satisfied on the whole of the medical evidence that the diagnosis by Dr Awad is to be preferred.  There is no medical evidence suggesting that such an injury will recover spontaneously and I am satisfied that the symptomatology currently suffered by Mr Colombini will continue at least into the foreseeable future.  For the purposes of the present application the injury must be regarded as permanent.

63The consequences in terms of pain and suffering are broadly described as pain, interference with sleep, domestic difficulties (particularly the care of Mr Colombini’s nine year old son) and interference with his ability to engage in gymnasium activities or to ride offroad motorcycles or mountain bikes.

64Additionally his choice of potential employment opportunities is also impacted by his injuries and this limitation on available types of work for a 31 year old manual worker is significant in terms of his enjoyment of life.

65Given his domestic situation, the occurrence of daily pain, the interference with his ability to enjoy regular and uninterrupted sleep, and the interference with his former recreational activities are in my view sufficient to be described as at least very considerable and more than significant or marked as is required for leave to be granted.

66When the restriction of his potential areas of employment is added to this matrix, I am comfortably satisfied that leave must be given to Mr Colombini in the terms sought.

Conclusion

67I am satisfied that Mr Colombini suffered a serious injury to his spine in a work‑related incident occurring on or about 23 March 2018. 

68I grant leave in accordance with s 335(2)(d) of the Act to commence proceedings to recover damages at common law for injuries arising out of or in the course of his employment on or about 23 March 2018.

69I grant leave to the parties to apply in respect of formal orders sought and on the question of costs.

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