D'Angelo v Campbellfield Mini Mix Pty Ltd and Tony Gallo
[2009] VCC 414
•1 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-05168
| GUISSEPE JOHN D'ANGELO | Plaintiff |
| v | |
| CAMPBELLFIELD MINI MIX PTY LTD | Defendants |
| and TONY GALLO |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 and 3 April 2009 |
| DATE OF JUDGMENT: | 1 May 2009 |
| CASE MAY BE CITED AS: | D'Angelo v Campbellfield Mini Mix Pty Ltd & Tony Gallo |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0414 |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application – s.134AB Accident Compensation Act – physical injury – loss of body function of the lumbar spine – claim for pain and suffering consequences only – application granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.D. Philbrick SC with | Maurice Blackburn |
| Mr D.J.N. Purcell | ||
| For the Defendant | Mr B.R. McTaggart | Minter Ellison |
| HER HONOUR: |
1 Guissepe D’Angelo is an experienced concrete mini mix driver employed by Campbellfield Mini Mix Pty Ltd (the first defendant). He commenced working with the company in 1995. The plaintiff was born on 16 March 1960 and is aged 49 years.
2 Mr D’Angelo suffered compensable injury on or about 21 October 2005.
3 The circumstances of the injury were that he was required to deliver and pour a load of cement to premises at 4 Woongarra Court, Eltham. Those premises were owned by Tony Gallo (the second defendant). Mr D’Angelo was required to fill a retaining wall with wet concrete. In the course of pouring the cement the wall exploded knocking Mr D’Angelo over and causing him to be pinned against the chute on the cement truck with the bricks landing on his back (the incident).
4 He immediately complained of pain in his back, left hip and left leg. He was taken by ambulance to the Austin Hospital where scans were taken and pain relief administered. He was discharged into the care of his local doctor.
5 Mr D’Angelo brings this application pursuant to s.134AB of the Accident Compensation Act 1985 (the Act) seeking leave to bring proceedings against the defendants for damages for injury suffered in the course of his employment on or about 21 October 2005.
6 The plaintiff relies solely upon sub-paragraph (a) of the definition of serious injury contained in s.134AB(37).The injury is injury to the back.
7 The application relates to pain and suffering consequences only.
8 Mr Philbrick, SC, on behalf of the plaintiff, submitted the plaintiff suffers an impairment or loss of a body function, namely, the lumbar spine the consequences of which satisfy the test for serious injury as defined in the Act.
9 Mr Mc Taggart, on behalf of the defendants, admitted that the fact of injury is not in dispute. What is in dispute is whether the plaintiff’s injury can be characterised as an aggravation of a pre-existing injury or a frank injury. The defence case is that this an “aggravation” case having regard to the evidence that showed the plaintiff complained of a history of low back pain and had received treatment prior to the incident for his low back problem.
10 He further submitted that the consequence of the aggravation of the plaintiff’s low back condition does not meet the very considerable test as set out in s.134AB and the authorities.
11 In his final address Mr Mc Taggart challenged the reliability of the plaintiff’s evidence. He submitted the plaintiff has not discharged the onus of proof.
12 Mr McTaggart was critical of the plaintiff because he did not disclose to the various medical examiners the past history of treatment for back problems prior to the incident. Further, he submitted that the video evidence does not support a finding that the consequences of the injury are serious.
13 The plaintiff adopted affidavit material sworn and filed in these proceedings as being true. Those affidavits were sworn on 17 December 2007 and 27 March 2009. They set out the plaintiff’s background, the circumstances of the injury and its effects on his social, domestic and recreational activities.
14 Mr D’Angelo and Dr Naveen Singh, the treating general practitioner, gave evidence and were cross-examined. The parties otherwise relied on the tendered medical reports, radiological investigations, wage records, affidavits and a statement details of which are as set out in the exhibit list attached hereto.
15 In cross-examination, the plaintiff denied he told a doctor in June 2004 that he had had low back pain for two years.
16 The clinical notes from Campbellfield Medical Centre show that the plaintiff was seen by Dr Marty on 23 June 2004 for low back problems. The doctor noted “past history - low back pain 2 years”. He certified him unfit for work for four to five days at that time.
17 Mr D’Angelo told some of the medical examiners including Mr Kevin King, Mr Dooley and Dr Mutton that he had no prior history of back pain.
18 The importance of credibility findings have been consistently emphasised in these types of serious injuries applications by the Court of Appeal on a number of occasions.
19 In Palmer Tube Mills (Aust.) Pty. Ltd. v. Semi [1998] 4 V.R. 439, particularly at p.448, Brooking J, with whom the other members of the Court agreed, said:
“In ‘serious injury’ applications, the credit of the applicant is of great importance. For so often the opinions of medical witnesses or other experts depend upon what they have been told by the applicant and upon the applicant’s behaviour or performance on examination or upon testing. The bona fides are best explored in cross-examination.”
20 Findings on credibility alone are, however, not determinative of the outcome of the application. The reliability of Mr D’Angelo’s evidence must be judged against the totality of all of the evidence. I have considered that evidence in the overall context of the case.
21 Mr D’Angelo impressed me as a straightforward witness who gave his evidence without embellishment and he did his best to answer questions accurately and honestly. He was educated to a very basic level having left school at 15 years. He is an obese man who was in evident discomfort sitting in the witness box. He frequently moved about trying to get comfortable. He walked about the Court room moving slowly.
22 It is not in dispute that over the years Mr D’Angelo had treatment for low back strain from time to time. The tendered material includes certificates dated 23 March 1988, 28 March 1988, 30 January 1991 and 12 February 1991. Those certificates relate to time off due to soft tissue injury/low back strain whilst the plaintiff was employed by V Line as a driver.
23 There are entries in the clinical notes from Dr Singh’s clinic referred to in paragraph [16] relating to complaints of low back pain to which Dr Singh was referred during cross examination. Dr Singh agreed what is recorded is:
11 August 2000 left groin pain moderately severe no radiation.
9 July 2003 numbness of the anterior part of the right thigh for two weeks.
Past history of back problems but not currently.
23 June 2004 - Dr John Marty- past history of low back pain for two years, yesterday increasing low back pain in left and right flanks. Examination: flexion to the mid-shin, extension five degrees, lateral flexion 20 degrees right, 30 left and rotation 80 degrees and some restriction of movement noted and restriction of straight leg raising noted. ?L5/S1 disc pathology. Work certificate to 27 June 2004.
15 July 2004 been to the pool twice, back slightly better working again, sore at
day’s end.
9 September 2004 back much better with pool three times a week.
24 I am satisfied that these past attendances for back pain were self limiting and the plaintiff’s back condition settled with conservative management namely, rest and hydrotherapy. There is no evidence that the plaintiff lost any significant time from work attributable to any low back condition prior to the incident.
25 Mr D’Angelo was able to work undertaking unrestricted duties throughout the period leading up to the incident. Mr Mark Molacci, the first defendant’s operations manager, states that he has known Mr D’Angelo off and on for 12- 14 years and that he appeared to be fit and well prior to his accident on 21 October 2005.[1]
[1] DCB 6
26 I am satisfied, having regard to all the material, that Mr D’Angelo’s back condition prior to the incident was stabilised and that he suffered a frank injury on the 21 October 2005 as a result of the severe crushing trauma in the incident and shall consider the consequences of that injury.
27 I am satisfied that the plaintiff has not deliberately attempted to hide the fact that in the past there were isolated periods where he suffered back problems related to work nor did he deliberately seek to mislead the medical examiners.
28 Mr McTaggart sought, in his final address, to further challenge the reliability of the plaintiff’s evidence on the basis of the video surveillance material.
29 I have reviewed the videos that were tendered in this application. Video surveillance was undertaken on 31 October 2008, 27 November 2008, 4 and 6 December 2008, 6, 8 and 22 March 2009. The material was not of good quality. The images were grainy and taken at a distance.
30 Mr D’Angelo confirmed in cross-examination that his usual pattern was that he would normally complete his work and go home and lie down. The video material shows that on one occasion he had a late lunch with some co- workers and on another occasion he was seen out shopping with his wife.
31 Those two scenarios do not affect the overall situation insofar as the plaintiff’s reliability is concerned. There does not appear to be anything shown on the videos that is inconsistent with what the doctors are saying about the nature of his condition and the degree of his disability.
32 On 27 November 2008 he is seen at a shopping complex in the canteen area accompanied by his wife. At about 12.41pm he bends from his knees to pick up a coin that is on the ground. Otherwise he is seen standing or seated. At about 1.03pm he appears to be crossing the road, walking slowly and appears to be dragging the right leg. He crosses the road, places something in this car and bends side on from the waist to get into the car. All this is done in a slow way.
33 On 4 December 2008 the film shows him at work. He is standing, talking to co-workers and is seen walking about. He is seen sliding into his car. He is seen picking up something from the front passenger seat of his vehicle. He bends slightly from the waist. He is then seen at a café with co-workers obviously having a late afternoon break. He stays there for roughly 40 minutes or so. He gets up and down a few times and is shown walking into the cafe. He is always shown walking slowly. He leaves at around 3.41pm or so.
34 On 6 December 2008 he is shown at work on-site at a concrete pour. At times he is in the truck and at other times he is seen doing his activities slowly. On one occasion he is seen climbing into the truck and driving off. On another occasion he is seen hopping into his car at the depot but at all times he appears to be this in a slow manner. At about 1.00pm he is seen bending over for about five to six seconds placing something in his car (probably his lunch box). At 1.31pm he is at a shopping centre and he is seen near his car bending over again for about 30 seconds. All these actions appear very slow and deliberate.
35 On 6 March 2009 the plaintiff arrived home at around 6.30pm. He is seen bending sideways to collect the mail from his mailbox.
36 I conclude that the films have not affected my assessment of the plaintiff. They show him walking with a slow and deliberate ambling gait. Occasionally he is seen bending for a few seconds.
37 Dr Singh in evidence confirmed that he is responsible for Mr D’Angelo treatment and management and that he continues to provide him with prescriptions for pain relief. He prescribes Tramadol, 200mg at night, and Panadeine Forte, to be used as required throughout the day.
38 Mr D’Angelo reports that he uses between six to eight Panadeine Forte per day. Dr Singh confirmed that is the upper limit of the recommended dose for that medication. Any higher dose would cause side effects such as drowsiness, constipation and liver damage. [2] He confirmed that Mr D’Angelo alternates Tramadol with Panadeine Forte because sometimes he can tolerate one better than the other. [3]
[2] T51, L2-19
[3] T51, L23-27
39 Dr Singh confirmed that Mr D’Angelo’s weight has been a significant problem for a long time even before the incident.[4]
[4] T56, L6-9
40 He confirmed that on occasion he has physically examined Mr D’Angelo. The last time he checked the plaintiff’s range of movement was on 19 October 2007. He noted forward flexion to 30 degrees, extension to five degrees and lateral flexion to touch approximately one-third of the thigh bilaterally, straight leg raising on the left was 45 degrees, straight leg raising on the right was 10 degrees.
41 He confirmed that significant restriction of movement in terms of forward flexion has been a fairly consistent pattern since the incident. [5]
[5] T58, L12-15
42 He further confirmed that during consultations Mr D’Angelo quite often would stand up in the middle of the consultation from a seated position to alleviate some back discomfort.
43 Dr Singh was shown an extract of the video surveillance material taken on 6 December 2008 at 1pm and 1.28pm. He confirmed that the plaintiff is shown flexing to about 80 degrees. He confirmed it differed from his findings in 2007 but stated that the plaintiff’s history can vary from time to time and that is a natural history of the complaint.[6] He confirmed over a number of medical examinations the best forward flexion he found was 40 degrees.
[6] T 59, L 22-24
44 I accept Dr Singh’s evidence and find nonetheless that I am satisfied that the video material does not demonstrate anything other than what is consistent with the plaintiff’s stated injuries.
45 I reject Mr McTaggart’s submission that the plaintiff has continued to do the same work in the same manner since probably early 2007 as he had done before the incident.
46 Following the incident the plaintiff remained off work for about 16 months. Dr Singh confirmed the restrictions on the type of work he can perform. Mr D’Angelo returned to work on modified duties on 5 September 2006 with restrictions, no bending or repetitive lifting, no lifting greater than 5 kilograms, to alternate sitting and standing as tolerated, medium duties 8 hours per day 6 days per week, can drive for 6 to 8 hours per day. Those restrictions continue.[7]
[7] T 51, L28-31
47 I accept that following the resumption of work the plaintiff has regularly worked overtime. However, in his affidavit, sworn 27 March 2009 he states that he works with pain and takes a lot of Panadeine Forte to help get through the day.[8] When he finds that the pain gets too great he takes a day or so off work.[9] That evidence was not challenged.
[8] PCB 13b
[9] PCB 13c
48 I find the plaintiff to be a reliable witness and accept his evidence concerning the injury and the effects of the injury in terms of the restrictions of the sort of work he can perform and on his social and recreational activities.
49 I am satisfied that Mr D’Angelo is a stoic individual who is genuinely suffering from the effects of chronic thoraco-lumbar pain. He resumed his employment in the context of being under significant financial pressures. He is the sole wage earner in his household. Additionally, he was committed to repaying mortgage arrears that accumulated whilst he was off work on WorkCover payments. His main focus in rehabilitation was to be able to return to work.[10]
[10] Dorset Rehabilitation Discharge Summary PCB 33
50 I shall proceed to analyse the application on the basis Mr D’Angelo suffered a severe traumatic crush injury to the thoraco-lumbar spine following the incident and shall consider the consequences of the injury.
51 There is a remarkable degree of consensus expressed in the medical opinions relied upon in this application.
Treatment following the incident
52 The plaintiff is managed conservatively by Dr Singh. He first reviewed Mr D’Angelo on 28 October 2005. He initially diagnosed soft tissue bruising/crush injury of the back. He commenced him on Nurofen with Panadeine Forte for pain relief.
53 The plaintiff’s medical management has been problematic because of his obesity. He has gained 25 kgs in weight post injury. His weight makes exercise problematic which affects treatment.
54 Dr Singh confirmed that Mr D’Angelo has constant disabling pain interfering with all aspects of his life and that was not the case prior to the incident on 21 October 2005.
55 A CT scan of the lumbosacral spine and an abdominal ultrasound were performed on 7 November 2005.
56 The abdominal ultrasound was reported as normal and the CT scan of the lumbosacral spine revealed mild disc bulges from L2/3 to L5/S1 with lumbar spondylosis.
57 His medication was changed to Tramal, 200mg daily, and he was referred for physiotherapy. Dr Singh referred him to Dr Clayton Thomas, a rehabilitation consultant, who reviewed him on 3 February 2006.
58 Dr Clayton Thomas, reviewed Mr D’Angelo initially on 3 February 2006 and again on 15 March 2006, 1 June 2007, 2 May 2008, 4 July 2008 and 7 November 2008.
59 He confirmed that Mr D’Angelo has pain arising from the lower lumbar spine and that the injury that occurred, in his opinion, can be said to be very significant.[11] He considered diagnostically that he probably is suffering from some symptoms from the L4/5 disc level which probably accounts for the right-sided referral of pain possibly due to irritation of the L4 nerve root.
[11] PCB 36, Dr Clayton Thomas 13 January 2009
60 Dr Thomas advised Mr D’Angelo to lose 60 kilograms and attend a spinal rehabilitation program at Dorset Hospital. He prescribed Nurontin in July 2006, up to 1200 mg three times per day. By August 2006 this did not relieve the back pain or the right thigh numbness.
61 On completion of the rehabilitation program in September 2006 the plaintiff reported a 40 per cent reduction of back pain but no change to the right thigh numbness. He reported that he wanted to return to work and that was arranged. He returned to work on modified duties. He was referred to Coburg Physiotherapy for a fitting of a back brace which he used daily.
62 Dr Thomas prescribed Panadeine Forte, two tablets at night, which caused constipation for which condition he was prescribed Duphalac, 40mls daily, and Coloxyl with senna.
63 In October 2007 following his return to work he reported two weeks of worsening back pain radiating to the right knee with associated right knee numbness. Examination at that time revealed limitation of movement, straight leg raised to 45 degrees on the left and 10 degrees on the right. He was sent for a CT scan of the lumbosacral spine.
64 The CT scan revealed mild central canal stenosis between L1 and L3 as well as mild bilateral L4/5 and right L1/2 foraminal stenosis resulting from mild to moderate disc degeneration at those levels. He was placed on Norspan, 5mg patches weekly, and increasing doses of Topamax by Dr Clayton Thomas.
65 The Norspan resulted in nausea and did not relieve the pain, so that medication was ceased. The Topamax was increased in dosage, but this caused drowsiness so he stopped that as well. In October 2008 he reported a further exacerbation of low back pain which radiated to the right ankle and associated urinary incontinence.
66 A CT scan was ordered that was unchanged from the one performed in October 2007. Dr Thomas arranged for an MRI scan but that was unable to be completed because Mr D’Angelo developed a panic attack in the MRI machine.
67 Following his return to work, Mr D’Angelo reported to Dr Thomas that his back pain persisted. He indicated that he had episodic right leg pain but overall his back pain was more of concern to him than his leg pain.
68 Dr Thomas noted at his last review on 28 January 2009 pain relief was noted to be problematic. He recorded that Mr D’Angelo continued to complain of pain in his back and the right leg with numbness in the right thigh region.
69 Mr D’Angelo has been reviewed for medico-legal purposes by a number of specialists. All of the examiners have considered him to be genuine and no psychological or psychiatric consequence of injury has been identified.
Medico legal opinions
70 Mr Kevin King, orthopaedic surgeon, saw him on 14 January 2009 at the request of the plaintiff’s solicitors.
71 Mr King noted following the incident that Mr D’Angelo remained off work for 11 months due to constant severe disabling back and right leg pain. There has been no significant improvement over the past years although symptoms fluctuate from day to day. He noted the plaintiff was a very large build, morbidly obese and that he has put on an extra 25 kilograms in weight due to inactivity following the incident, and that makes it difficult for further investigations to be done.
72 On examination he found no element of exaggeration and marked limitation of all thoraco-lumbar spine movements by spasm and pain. Straight leg raising of 30 degrees right and 40 degrees left limited by severe spasms of the low back.
73 Mr King reviewed the CT scan of the lumbar spine of 22 October 2008. He reported the crushing force involved in the incident was very great and in this case Mr D’Angelo’s lower thoracic and lumbar spine and pelvic region would have been exposed to a massive degree of trauma and there must have been generalised damage to the lower thoracic and lumbar discs and associated ligamentous structures at multiple levels.
74 He considered that the plaintiff injury is severe crushing trauma to the lower thoracic and lumbar spine with widespread damage to the thoraco-lumbar discs and associated ligamentous structure at multiple levels resulting in some degree of right sides sciatica as well.
75 He does not consider the plaintiff will be fit to return to unrestricted heavy manual work in the foreseeable future and that he will be disabled by constant severe thoraco-lumbar back pain for the foreseeable future and some slow deterioration may occur over the next few years. He found no evidence of any sort of functional overlay.
76 Mr King provided a supplementary report dated 31 March 2009 in which he reviewed material including the general practitioner’s clinical records from 21 November 2001 to 7 March 2006. He noted two references to backache, one on 1 June 2004 and the other on 23 June 2004. There were several certificates relating to soft tissue injury to the back dating March 1988 to January 1991.
77 He expressed the opinion concerning those records that it would appear the plaintiff had minor scattered episodes of the sort that tend to occur to heavy manual workers and as far as he could gather none of them were of any particular note or caused any significant impairment.
78 He considered that the records were consistent with the plaintiff’s statement that he had no serious problems in the past with backache. I agree with that opinion. The work history of the plaintiff and medical material supports that contention.
79 Mr Brendan Dooley, orthopaedic surgeon, examined Mr D’Angelo on 15 August 2007 for an evaluation of permanent impairment 4th edition arising from the injury to lumbar spine.
80 He noted the plaintiff’s complaint of back pain and pain radiating to the right leg with some numbness on the outer aspect of the right thigh. He confirmed that he was on medication for pain relief. A major problem was obesity and, because of the relative inactivity since the accident, the plaintiff had put on further weight and now weighed 160 kilograms.
81 There was tenderness in the lumbar spinal area noted on physical examination. All movements in the lumbosacral spine were limited with flexion of 40 degrees only and extension to 10 degrees, lateral flexion to either side of 20 degrees and likewise of rotation.
82 His opinion is that Mr D’Angelo suffered a soft tissue injury to the lumbosacral spine with aggravation of degenerative changes revealed on CT scan of the lumbar spine on 7 November 2005. The CT scan showed evidence of lumbar spine spondylosis without any evidence of disc prolapse in the lumbosacral spine. There is some referred pain and paraesthesia into the right thigh but no signs of radiculopathy affecting the right leg. He considered that plaintiff’s condition had stabilised.
83 Dr Philip Mutton, consultant occupational physician, reviewed the plaintiff twice, on 13 December 2006 and 18 March 2008. He noted on clinical examination the range of movement in the thoraco-lumbar spine was reduced. Mr D’Angelo could laterally flex to the mid-thighs, he could forward flex to the mid-thighs and rotation was reduced by 50 per cent on the first occasion he examined him.
84 On 18 March 2008, at review, the plaintiff could only demonstrate an extremely limited range of movement in the thoraco-lumbar spine with no more than five degrees of flexion and extension, left and right lateral flexion and limitation.
85 He agreed the radiological evidence showed evidence of degenerative lumbar disc bulges at L2/3 to L5/S1 of a minor degree and there was evidence of lumbar spondylosis.
86 Mr D’Angelo continued to complain of chronic low back pain with symptoms into the lower limbs and knees. He noted that the plaintiff was working his normal hours with reduction in driving duties to up to five hours per day.
87 He considered that there were pre-existing degenerative changes prior to the incident that were aggravated and have since progressed as a consequence of the incident.
88 Further treatment was not indicated. Chronic low back pain is difficult to treat. Physical therapy is unlikely to help. The mainstay of treatment would be maintaining a range of physical activities in addition to controlling pain with medication.
89 Mr D’Angelo was reviewed at the request of the defendants by Mr Ian Jones, orthopaedic surgeon, on 27 November 2008.
90 His examination revealed that the site of the back pain was indicated to be at L4/5 level of the lumbar spine. The range of lumbosacral flexion he recorded was 40 degrees with extension not possible beyond the neutral position. Straight leg raising on the left was 50 degrees and on the right 40 degrees, both of which aggravated his back pain.
91 He reviewed the plain x-rays taken on 21 October 2005 at the Austin Hospital and they revealed generalised spondylitic change in the lumbar spine with degenerative changes evident in most levels with slight disc space narrowing.
92 The further CT scans dated 20 March 2006, 24 October 2007 and 27 October 2008 confirmed evidence of multi-level degenerative disc disease with facet joint arthritis and slight disc bulging.
93 His clinical examination revealed a grossly obese man of 150 plus kilograms. Examination of the back revealed a man in pain with marked stiffness in movements of his back precipitating complaints of back pain. He also described some symptoms of intermittent numbness affecting the right thigh, but no other supporting features to suggest either sciatica or foraminal nerve component to the leg symptoms.
94 He considered that the radiological investigations are consistent with multi- level degenerative disc and facet joint disease with no evidence of disc disruption.
95 His expressed opinion is that the injury suffered by the plaintiff appears to have aggravated pre-existing degenerative disc and joint disease affecting the lower lumbar spine that was apparently asymptomatic prior to the incident.
96 He did not identify any psychological or psychiatric consequence of the reported back injury. In his opinion the plaintiff will not recover sufficiently to be able to be in full-time unrestricted work as a truck driver or in a labouring capacity but he does have a work capacity.
Findings
97 I am satisfied that as a consequence of the incident at work on the 21 October 2005 the plaintiff suffered compensable injury namely, soft tissue injury to the thoracic and lumbar spine and aggravation of degenerative disc disease to the thoraco-lumbar discs and associated ligamentous structures.
98 I accept Mr D’Angelo’s evidence as to the consequences of the injury. He is restricted in his physical activities and the nature and extent of his injury and its effect upon his social, domestic and recreational activities are as set out in his affidavits.
99 Previously he was a fit and active person who enjoyed life without restrictions. He is now limited in the type of work that he can perform and is restricted in a wide range of activities involving sitting, standing or walking for too long.
100 The plaintiff experiences constant severe thoraco lumbar pain. He is reliant on a high level of medication for pain relief. He manages with Panadeine Forte and Tramal. The amount of Panadeine Forte he consumes is at the upper level of the recommended dose. From time to time he has suffered from side effects from his medication and has had treatment for constipation. The need to take medication will continue indefinitely.
101 I accept the in general physical activity increases Mr D”Angelo’s back and leg pain. He is restricted in performing a number of activities such as mowing the lawns, doing home maintenance or otherwise looking after his home. He previously enjoyed playing soccer and football with his children and is now restricted in those activities. He is less social and his relationship with his wife has suffered particularly his sex life.
102 His wife, Teresa D’Angelo confirms these consequences in her affidavit sworn 15 March 2009. Her evidence was uncontested.
103 I find that the injury will not mend or repair to any significant extent. I consider that the injury meets the requirement of being permanent.[12]
[12] See Barwon Spinners Pty Ltd v. Podolak & Ors [2005] V.S.C.A. 33 per Phillips JA for the Court.
104 I am satisfied that the injury has impaired the functioning of Mr D’Angelo’s thoraco-lumbar spine.
105 I am satisfied the consequences to the plaintiff of the impairment of the function of the thoraco-lumbar spine with respect to pain and suffering may be fairly described as being more then significant, or marked and as being at least very considerable.
106 Pursuant to s.134AB(38) (b) and (c) I have considered the consequences to the plaintiff of the impairment, or loss of body function of the thoraco-lumbar spine with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments, or losses of the body function to determine if the pain and suffering consequences may be fairly described as being more then significant, or marked and as being at least very considerable.
107 Accordingly, the plaintiff has established in respect to the physical consequences of the injury that he has a serious injury.
108 I therefore grant leave to the plaintiff to bring proceedings for the recovery of damages for injury suffered in the course of his employment on or about 21 October 2005 for pain and suffering consequences.
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