Douglas Brisbane v Dandy Premix Concrete Pty Ltd
[2014] VCC 1526
•10 September 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-04519
| DOUGLAS JOHN BRISBANE | Plaintiff |
| v | |
| DANDY PREMIX CONCRETE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22, 23 July 2014 | |
DATE OF JUDGMENT: | 10 September 2014 | |
CASE MAY BE CITED AS: | Douglas Brisbane v Dandy Premix Concrete Pty Ltd | |
| MEDIUM NEUTRAL CITATION: [First revision 24 September 2014] | [2014] VCC 1526 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to neck and head – a range case – pain and suffering – workplace injury – serious injury found
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Allsmanti Pty Ltd v Ernikiolis [2007] VSCA 17; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Transport Accident Commission v Zepic [2013] VSCA 232; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA; Jones v Dunkel (1959) 101 CLR 298
Judgment:Leave granted to the plaintiff pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 to commence proceedings to recover damages for pain and suffering in regard to injury and aggravation injury which occurred at the plaintiff’s work with the defendant on the 12th day of April 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Seeman | Robinson Gill Lawyers |
| For the Defendant | Mr P J Hayes | Wisewould Mahony |
HIS HONOUR:
1 In this matter of Brisbane v Dandy Premix Concrete Pty Ltd, Mr D Seeman appeared on behalf of Mr Brisbane in the matter, and Mr P J Hayes appeared on behalf of the defendant. This case was heard from 21 July 2014 through to 23 July 2014. This determination has been delayed unfortunately because I was on leave, apart from the normal work requirements.
2 Mr Seeman indicated that this case was an application under s134AB of the Accident Compensation Act 1985 (“the Act”) and opened it as, to use his words, “a range case”. He indicated the body part was the neck and the head. There was no issue of a Lu v Mediterranean Shoes Pty Ltd[1] type in regard to that, as indicated by Mr Hayes.
[1](2000) 1 VR 511
3 Both consequences were claimed when these proceedings were instituted. However, the application before me proceeded on a pain and suffering consequences case only. When I asked Mr Hayes to indicate to the Court what the issues were, Mr Hayes announced, to use his words, “a full frontal attack” on the plaintiff's credit. As part of the case, the plaintiff tendered exhibits A to O1, and the defendant tendered exhibits 1 through to 14D.
4 The hearing involved only the cross-examination of the plaintiff, and I was then addressed by Mr Hayes, who spoke to a written submission. Then Mr Seeman made oral submissions for the plaintiff. I was supplied by Mr Seeman with a chronology, for which I thank him.
5 The accident happened on 12 April 2008 when the plaintiff was cleaning a concrete truck. Whilst inside the truck, he was injured when he was hit by a large section of falling concrete.
6 The plaintiff, a labourer by occupation, had worked full time as a truck driver with the defendant since September 2007, and at the time of the accident was earning $900 gross per week. The plaintiff is now aged 47 and was 41 at the time of the accident.
7 The case as presented in the affidavits and as confirmed in evidence by the plaintiff was as follows. The plaintiff returned to work on light duties some several months after the accident. Those light duties involved a period of three days a week for six hours each day. However, due to the headaches and bad pain in his neck, he ceased such work in mid-2008. The actual factor which caused that was as a result of abuse, according to the plaintiff, within the workplace by his employer concerning his work capacity or perhaps his lack of it.
8 Apparently thereafter he attempted work as a storeman in the period September 2009 through to May 2010. However, thereafter, as a result of the impact of his injuries, he was required to cease work in May 2010, and has not undertaken paid employment since. He indeed suggested in evidence that the insurers or the worker’s compensation return to work advisors of the insurers, Paramount Personnel,[2] had in fact advised him to go on to a disability pension.
[2]Transcript 112
9 Mr Brisbane has maintained ongoing conservative treatment from his general practitioner, Dr Rillstone. Such treatment involved prescriptions of two Endone tablets per day and four to six Panadeine Forte for pain in the neck and the shoulder. He was subsequently referred to a neurosurgeon, Mr Timms, who recommended surgery in regard to the cervical spine. However, approval for this procedure was denied by the insurer subsequent to a determination by the Medical Panel in 2011, who determined that such a procedure was unnecessary.[3]
[3]Exhibit L1
10 Mr Brisbane says that as of the current time he has constant neck pain with the need for prescription medication, which I have already indicated, and suffers from twice weekly migraines. He is now, as I have said, on a disability pension, and on occasions he said he tried to help his son in a gardening and lawn mowing business.
11 All aspects of his life, he indicated to the Court, are now interfered with by this injury, in particular his enjoyment of recreations such as fishing, baseball and softball. In a further affidavit[4] of July 2014, he further confirmed the above as being the current situation, and in particular, spoke to his physical ability to cope with work. In regard to chores around the home, he said that he could attend to some physical tasks, in particular, the occasional lawn mowing.
[4]Exhibit O2
12 In cross-examination, there were a number of matters consistent with the attack announced by Mr Hayes that the plaintiff was taken to. Firstly, there was a prior elbow injury. Mr Brisbane, in response to questions about that, said that after 2005, any impact or incapacity caused by that had resolved, and leading up to the accident he was able to indulge in all sports unrestricted.
13 Despite the proposition put to him that the elbow may still play a part, the plaintiff maintained that he was currently restricted only by the injury to the neck, and he disputed the proposition put by Mr Hayes that either the onset of age or the arm injury now played any role in his current disabilities.
14 Mr Hayes next put to the plaintiff that he had exaggerated the claim, in particular, the degree of his neck pain. In this regard, by reference to the clinical records of the general practitioner, it was put that he had made no complaint of such pain until 16 November 2009, approximately 19 days after the accident. The plaintiff said that as far as he was concerned, he had always told the general practitioner of both neck and headache pain.
15 The plaintiff accepted that he had in fact had a headache for the first time prior to the accident on 21 January 2008 which was recorded in the clinical records. However, he said that since the accident, such headaches certainly became far more frequent and severe.
16 The plaintiff accepted on one occasion that he had failed to tell the truth in regard to his headaches when examined by the general practitioner on 14 May 2009. He said at the time to the doctor that he was not being worried by headaches in order to ensure the renewal of his heavy vehicle licence, as he was contemplating that without such a licence he had no opportunity, even if he did recover from his injuries, of being able to obtain a job. It was put to him in those circumstances that he had in fact lied to the general practitioner. Mr Brisbane answered that as far as he was concerned in the circumstances “this was not lying”.
17 Mr Hayes put to the plaintiff that in reality he was now only suffering from limited neck pain and was complaining for the purpose of this claim and exaggerating such a claim. The plaintiff replied that the limited complaints leading up to November 2009 had come about because the major concern at that time all of the practitioners – and himself – was the head injury.
18 As I said, the plaintiff maintained that at all times he had complained to the general practitioner about the neck, and it was finally the degree and prevalence of the ongoing neck pain that led to specific attention being given to it by the general practitioner in November 2009, and the referral to the neurosurgeon, Mr Timms, in January 2010, and ultimately to him ending up in casualty at the Southern Health Hospital with severe pain to his neck in May 2010.
19 Mr Hayes played a video to Mr Brisbane. This was a surveillance video. Mr Brisbane, having said he was unable, due to his injuries, to assist his son in his lawn mowing business on more than three occasions in 2011 and one occasion in 2013. Indeed, he said the business failed, albeit that he – that is Mr Brisbane, the father – owned the work implements and the truck and trailer used to transport them.
20 It was put strongly to the plaintiff that he had indeed been very much part and parcel of the business conducted by the son. Mr Brisbane adamantly denied this proposition that he had ever been involved with the son in any business or assisted his son in mowing on more than four occasions.[5] Indeed, the plaintiff said he could not have been in a business with his son, certainly over the last two years, because his son had been working full-time elsewhere.[6]
[5]See Transcript 120
[6]See Transcript 130
21 Mr Brisbane was then taken specifically to the video which was tendered and became exhibit 4, and to a recording made on 18 May 2013. It shows, from my observation, the plaintiff mowing lawns and doing all of the required tasks therein without any apparent bodily restriction for about 15 minutes. It is clear that he used both his left and right hands to empty the catcher.
22 When it was put to him that such video demonstrates he had no issues at all with his neck, Mr Brisbane replied that he was only dealing with lawn clippings and with mowing, that he was always aware precisely as to what weights he could handle, and in particular, he was concerned not to stress his body. When he was questioned about why it was that he had particular work clothes and had the safety clothing which would be indicative of him being in a business, he simply said this is the way he dressed when he did lawns.
23 The video[7] contained recordings on other dates. Firstly, on 2 July 2013, the plaintiff is seen to be hosing down his trailer and car. Then, on 16 July 2013, there is the trailer is towed, in which is the mower and lawn mowing equipment. He could not precisely remember what he was doing on that day but he said he could have been on his way to mow his partner’s father’s lawn.
[7]Exhibit 4
24 Overall, when pushed as to his activities and his evidence insofar as lawn mowing, he said that he can do light duties provided he does them slowly, and he would administer pain medication in the morning knowing that he is going to perform such tasks. He said that often as a consequence, even when he has done that, pain would be exacerbated by such work.
25 Further, in regard to the attack on Mr Brisbane’s credit, prior convictions were put to him on the proposition that the Court should accept that he was a person whose credit should not be accepted and the reliability of his evidence needs to be closely assessed, because of such bad character.
26 Insofar as those matters were concerned, he accepted that he had been convicted of social security fraud in June 2001 when the sum of $6,730 was ordered to be repaid. Further, in October 2009, he had been convicted of three counts of possession of child pornography; in September 2011, he had been convicted of fraudulently using a registration label. The plaintiff was further precisely questioned about specific aspects of his evidence, in particular as is detailed by Mr Hayes in his written submissions from paragraphs 14(a) through to (g).
27 In re-examination, the plaintiff was taken to the Epworth Rehabilitation notes of June 2008[8] when he had reported ongoing headaches and back pain. Such was further confirmed in a report of Dr Kirily Adam, consultant physician,[9] when that doctor noted that Mr Brisbane had reported numbness and tingling in his upper left limb, and had indicated that such occurred four to five times per day and had lasted for approximately 10 minutes at a time.
[8]Exhibit C2
[9]Exhibit E2, Plaintiff’s Court Book, paragraph 44
28 The assessment made by the rehabilitation service, and in particular, Dr Kirily Adam as a result of such complaints, was to question whether Mr Brisbane was suffering some form of neurological damage, and to postulate the need for a future MRI scan. Clearly such prognosis proved to be percipient.
29 As to the credit of the complainant, obviously in cases such as this, credit is vitally important. (See Allsmanti Pty Ltd v Ernikiolis[10] and Papamanos v Commonwealth Bank of Australia[11] and in addition, the cases to which I was referred by Mr Hayes, being Transport Accident Commission v Zepic[12] and Ifka v Shahin Enterprises Pty Ltd.[13]
[10][2007] VSCA 17, paragraph [42] – [43]
[11][2014] VSCA 167
[12][2013] VSCA 232, paragraph [85]
[13][2014] VSC 8, paragraphs [36] – [43]
30 I have reviewed the totality of all the evidence, in particular, the independent treaters of the plaintiff and the medico-legal opinions. I find there is consistency in such reporting when the accident type is considered. Upon such review, I find that I reject the attack on Mr Brisbane, albeit his prior convictions. I do not consider that the Jones v Dunkel[14] inference, as argued for in paragraph 15 of Mr Hayes’ written submission, can be drawn, given the plaintiff’s clear denial and his answers as to what he was doing on 18 May 2013. I find, upon consideration of all the plaintiff’s evidence and the submissions, that his evidence is both believable and credible. That is, that it has survived Mr Hayes’ “wholesale attack”.
[14](1959) 101 CLR 298
31 However, as I said to Mr Seeman in final submission, the real issue for his client was to convince me to the required degree as to the consequences of such injury.[15] In that light, I said to Mr Seeman I was concerned as to the state of the medicine in support of the plaintiff’s case.[16]
[15]See Transcript 197
[16]See Transcript 212
32 Mr Seeman was at pains therefore to convince me that such tentative concern as expressed by me was inappropriate when one looked at all the evidence. Mr Hayes of course in his submissions firmly supported the views that I had expressed leading me to have such concern. I have, as a result of all submissions, reviewed all the medical evidence and the evidence of the plaintiff since these submissions made to me in July of this year.
33 I have concluded on the totality of the evidence, and with a preference for that of the plaintiff’s medical evidence, that the consequences of this injury are indeed of such dimension that they qualify to be determined as a “serious injury”.
34 The history of the plaintiff demonstrates the plaintiff is a man who had tried in fact to go back to the work of his employer where he was injured. Such work as a truck driver is now universally seen by all medical practitioners as being medically inappropriate. Further, the plaintiff had attempted to perform alternative duties, as encouraged by his general practitioners.
35 The general practitioner has had the plaintiff on narcotic analgesics since the accident. The general practitioner appears, if I might say so, to have been spot on with his diagnosis of the injury emanating from this accident. If one looks at exhibit K2 at page 84 of the Plaintiff’s Court Book, in August 2010, the diagnosis made was a left C7 disc protrusion causing left arm pain. Such was confirmed, according to the general practitioner, from the plaintiff’s history where he had experienced neck pain from the time of the accident, and more recently arm pain. The general practitioner in such report made it clear that he had nil, to use his words, neck pain prior to the accident.[17]
[17]Plaintiff’s Court Book page 82
36 In exhibit K4, that is an update report of the general practitioner of 11 November 2014,[18] the general practitioner said that this accident had caused a closed head injury and an aggravation of the cervical spinal degeneration; that such injury had now stabilised; that as of that time, he accepted that no surgery could be undertaken – I assume that is because of the view taken by the Panel – that the plaintiff had no realistic capacity for employment; that he needs pain relief, and that he is restricted in regard to the performance of household chores and hobbies.
[18]Plaintiff’s Court Book page 102
37 As I have indicated, because of the general practitioner’s concern about the neck, the plaintiff was sent to the neurosurgeon, Mr Timms. With the aid of the MRI,[19] Mr Timms diagnosed that such MRI revealed a disc protrusion at the left side of C6-7 and opined that the neural compression was the cause of the symptoms. In Exhibit G,[20] a report of September 2010 by Mr Timms indicated that, having made such diagnosis, he recommended an anterior cervical discectomy and fusion with partial vertebrectomy at C6-7; he saw such injury as the cause of the recent pain and his left arm problems. That recommendation was refused by way of the determination of the Medical Panel.
[19]Exhibit B, Plaintiff’s Court Book page 25
[20]Plaintiff’s Court Book page 66
38 Essentially, that is where the level of treatment has remained insofar as Mr Brisbane is concerned, due to the attitude of the insurer. But for the admission to Epworth Rehabilitation which I have earlier referred to in May 2010, Mr Brisbane has remained under the auspices of the treatment regime prescribed for him by his general practitioner. I have already referred to the general practitioner’s opinion, updated, as I have indicated, as to the plaintiff’s current situation.
39 In support of the case a further medico-legal opinion was sought by the plaintiff. The first of those I want to refer to is Mr Horsley. That is contained at page 143 of the Plaintiff’s Court Book. It was a report of 19 October 2013 following an examination by Mr Horsley of the plaintiff, on that day.
40 At examination, Mr Horsley said, at page 143:
“Mr Brisbane presents in a straightforward manner. There is a reduction in cervical movement, extension is limited to half the normal range, as is left-right lateral flexion, left and right lateral rotation. On the right side there is a full range of shoulder movement in forward flexion, extension, abduction and adduction, internal and external rotation, but there is clearly discomfort in the last 20 per cent of forward flexion and adduction. On the left side there is restriction. Forward flexion is limited to the last 20 degrees as is adduction, extension is limited to 30 degrees. Internal rotation, external rotation and adduction are all normal.”
41 At page 151, he said Mr Brisbane has experienced ongoing post-traumatic headaches which persist at low-grade level. He had pre-existing cervical spondylosis which on history was aggravated by the nature of the injury. His treating neurosurgeon recommended surgical intervention which was rejected by the Medical Panel. Mr Brisbane takes considerable narcotic medication with Endone 10 milligrams twice per day, Panadeine Forte up to four, and OxyContin 5 milligrams once to twice per week. This regime was prescribed by his general practitioner three years ago. Prognosis:
“Given the length of time since the injury and the ongoing nature of the symptoms I believe the symptoms are likely to persist.”
42 He then made a comment, which is of importance to this Court:
“Mr Brisbane is only 46 years of age. He has now been out of the workforce since 2010, after participating in a WISE program for nearly 15 months. He currently takes … ”
– the medication I have already referred.
“He would benefit from involvement in a pain management program to reduce his medication and to improve his general level. On presentation today his prognosis for return to work is guarded, despite his youthful age. To return to work his medication would need to be addressed, as would his general level of deconditioning be improved.”
43 At page 152, Mr Horsley then proffered this opinion:
“I believe the events as described and the clinical presentation are consistent. I believe that Mr Brisbane now presents with ongoing chronic pain on a background of deconditioning and narcotic dependence.”
44 At the bottom of page 152, having asked the specific question whether Mr Brisbane is totally or partially incapacitated for his previous employment, Mr Horsley said:
“On the basis of the job description including using drill hammers, I believe Mr Brisbane is totally incapacitated for his previous work as a concrete truck driver.”
45 At page 153, with regard to alternate employment capacity, Mr Horsley said:
“I do not believe Mr Brisbane has any specific capacity for work currently based on his current medication, his level of deconditioning and his level of chronic pain … Mr Brisbane is only 46 years. However with his overall presentation, three years out of the workforce and the granting of a Disability Support Pension in 2010, his prognosis for return to work is guarded.”[21]
[21]Exhibit M
46 A further medico-legal report was sought by the plaintiff and provided by Mr Rodney Simm, orthopaedic surgeon,[22] an examination conducted in the same month as Mr Horsley’s examination, that is October 2013, and is located at page 154 of the Court Book.
[22]Exhibit N
47 At page 159 of the Court Book, Mr Simm stated, to a question:
“Which of the injuries were caused or aggravated by the subject accident?”
as follows:
“This man suffered a significant blow to the head on 12 April 2008. This resulted in a closed head injury and was probably responsible for aggravating pre-existing but previously asymptomatic early degenerative disc disease at C5-6 and C6-7 levels in the cervical spine. He has had rather unusual neurological symptoms since then, with numbness involving the entire left arm”
and he says here “left leg”. It seems to me on the reading of every document that must be a mistake. I do not see any history in regard to a left leg.
“Physical examination does not show any objective evidence of neurological dysfunction, in particular cervical radiculopathy. He has headaches suggestive of cervicogenic headaches which extend from the occiput forwards.”
48 The second question he was asked was whether the injury has stabilised:
“His injury has stabilised.”
49 To the third question, as to consequences, Mr Simm replied:
“The physical injury relevant to this orthopaedic report is unresolved aggravation of cervical disc degeneration with referred symptoms into the left upper and lower limbs, but without clinical signs of radiculopathy or other neurological dysfunction.”.
50 Going over to page160, as to the future, Mr Simm said that the condition as he has diagnosed was likely to persist as described. As to future treatment, he stated the plaintiff did not require surgery. There are early disc degenerative changes. However, as he noted, the main complaint was cervical pain.
51 Mr Simm was then questioned about Mr Brisbane’s employment and stated that he was partially incapacitated for previous employment. He could not undertake sustained truck driving, in particular, truck driving associated with manual loading and unloading of the truck. Mr Brisbane apparently had stated that he agreed he could do light courier work but he would need occasional days off work because of severe headaches.
52 Insofar as his other activities, Mr Simm said that Mr Brisbane was previously an active man who was involved in fishing, boating and water skiing. He had not been able to return to these recreational pursuits.
53 In final submission, Mr Seeman submitted to the Court, given those medical reports, that is of the treaters and the two medico-legal opinions, that the reality of those medical reports is neatly summarised by the plaintiff himself in his own affidavit[23] sworn in July of this year, and, in particular, paragraphs 10 to 16 located at the Plaintiff’s Court Book at page 14. He also referred to the ongoing medicine regime to which I have indicated.
[23]Exhibit 2
54 Mr Hayes did not spend a lot of time on the medical evidence, essentially maintaining his attack on credit and maintaining that there was nothing wrong with the plaintiff so as to justify leave being granted.
55 I accept Mr Hayes’ summary that the weight of the evidence confirms that the plaintiff did suffer a neck injury (see paragraph 18 of the written submission). Mr Hayes submitted that Mr Nye, the neurosurgeon, who saw the plaintiff for the defendant, did not agree that such injury occurred. However, that does not appear to be so, albeit that he classifies the neck injury as not significant and not needing an operation (see Exhibit 9 a page 60 of the Defendant’s Court Book) it should be noted that, in particular, Mr Nye was somewhat restricted by the limited material provided to him, especially being that he did not have the MRI.
56 Of importance to the plaintiff’s case is the opinion of the third neurosurgeon who has provided a medico-legal opinion in this case, that is Mr Siu. Mr Siu made his first report[24] on 12 July 2014 and that is located in the Defendant’s Court Book at page 80. It begins, Exhibit 12A, as I said, the report of 12 July 2014, at page 80. At page 84, Mr Siu says:
“In summary, Mr Brisbane sustained a concessional head injury with little sequelae.”
[24]Exhibit 12A
57 In reviewing the MRI of January 2010, he noted that there was shallow left central disc prolapse at C6-7, maybe contacting the C7 nerve root. In regard to describing the plaintiff’s presenting condition on that day, he said that:
“Mr Brisbane’s present complaint is of pain most likely from cervical spondylosis. I would agree that the concrete piece falling and hitting his head could have aggravated the pre-existing mild cervical spondylosis.”
58 Mr Siu’s next report to which I want to refer to is Exhibit 12C. That was a report of May of this year and is located at the Defendant’s Court Book at page 90 and I want to quote from page 92. That is, in May of this year, Mr Sui said, when asked about Mr Brisbane’s current complaints and symptoms:
“His current symptoms are persistent headaches, neck stiffness, depression, irritability and dependence on narcotic analgesics.”
59 Mr Sui was then asked to provide an up-to-date prognosis as to such presentation and said:
“The prognosis is poor. The diagnosis remains that of aggravation of pre-existing cervical spondylosis.”
60 Then at page 93, Mr Siu said as follows when talking about his capacity for employment:
“I reiterate that he can be employed for appropriate employment, however, would be subject to the physical restrictions brought about with repetitive bending, no twisting or lifting of more than five kilograms.”
61 Finally, albeit that the report of Professor Helme, the neurologist, was made prior to the MRI in January of 2010:
“In summary, Mr Brisbane is a 42 year old truck driver who sustained a closed head injury associated with pre and post-traumatic amnesia. He has recovered sufficiently to live in the community and is currently working as a storeman. He is symptomatic of headache which I believe was cervicogenic in origin and would be classified as post-traumatic headache.”
62 As I have said, accepting the plaintiff’s evidence of ongoing symptomatology since the accident, and with such evidence being enlivened with the medical opinions which I have referred to above, I have concluded on the balance of probabilities that the injuries and aggravation to the plaintiff’s head and neck which occurred at the plaintiff’s place of employment on 12 April 2008 have produced an organic impairment to the plaintiff and a loss of bodily function of the plaintiff’s back and neck; predominantly the neck. I find such impairment to be permanent and likely to last into the foreseeable future.
63 I find on the evidence of the plaintiff and all the medical evidence that I have assayed, the physical injuries caused by the injury and aggravation have had a particularly deleterious impact on the plaintiff, causing pain and suffering, loss of enjoyment life, in particular in regard to his abilities to utilise his bodily function in carrying out normal daily activities in carrying out his employment and his home duties. In assessing such impairment objectively in accordance with s134AB(38)(b) and (c), I find that the consequences of the pain and suffering are certainly more than significant or marked and are very considerable, and I find such impact to be a serious permanent impact.
64 Hence, as a result of the injury and aggravation injury which occurred at the plaintiff’s work with Dandy Premix Concrete Pty Ltd on the 12th day of April, 2008, the plaintiff suffered a serious injury as defined by s137(37) of the Act and I grant leave pursuant to s134AB(16)(b) of the Act for the plaintiff to commence proceedings to recover damages for pain and suffering in regard to such injury; and I so determine.
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