Draper v TAC
[2010] VCC 1304
•13 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MORWELL
CIVIL DIVISION
Case No.
| FAY DRAPER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | His Honour Judge Coish |
| WHERE HELD: | Morwell |
| DATE OF HEARING: | 9 September 2010 |
| DATE OF JUDGMENT: | 13 September 2010 |
| CASE MAY BE CITED AS: | Draper v TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1304 |
REASONS FOR JUDGMENT
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Catchwords:
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P.F. O'Dwyer SC Mr J.F. Goldberg | |
For the Defendant | Mr P.D. Elliott QC Ms R.N. Annesley | |
| HIS HONOUR: |
1 This is an application for leave to bring proceedings for the recovery of damages pursuant to s.93 of the Transport Accident Act 1986 in respect of a back injury the plaintiff sustained in a transport accident on 19 October 2003. The plaintiff alleges that the back injury (the aggravation of degenerative changes in the lumbar spine) is a serious injury within the meaning of paragraph (a) of the definition of "serious injury". The relevant body function in which there has allegedly been impairment or loss is the spine.
2 There is no dispute that the plaintiff suffered a back injury in the transport accident on 19 October 2003. The issue in dispute is whether she has a serious injury as defined. The onus of proof is on the plaintiff. I am familiar with, and I have had regard to, a long line of authorities dealing with serious injury applications. In Humphries v. Poljak [1992] 2 VR 129, Crockett and Southwell JJ at p.140 stated that in respect of the definition of "serious injury" in paragraph (a): "To be 'serious' the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether when regard is had to such consequence an injury is to be held to be serious, the question to be asked is can the injury when judged by comparison with the other cases in the range of possible impairments or losses be fairly described at least as 'very considerable' and certainly more than 'significant' or 'quite marked'."
3 As the plaintiff had preexisting degenerative changes in her lumbar spine, I have had regard to the Court of Appeal decisions on aggravation injuries; Petkovski v. Galletti [1994] 1 VR 436; Angelatos v. Museum of Victoria [1999] 3 VR 157; RJ Gilbertsons Pty Ltd v. Skorsis [2002] VR 386; and Darren Spence and TAC v. Rosa Gomez [2006] VSCA 48.
4 In Petkovski v. Galletti there is a detailed analysis of the approach to be adopted in cases involving a preexisting condition. At page 444 the court stated: "The accident did not cause the preexisting condition. At this stage of the process the applicant must establish what injury was caused by the accident. Where it is a preexisting condition, it necessarily follows that an analysis must be made of the extent of impairment of body function before and after the relevant injury." Only the plaintiff gave evidence. Each party relied on various medical reports and records tendered in evidence.
5 The plaintiff is 68 years of age, having been born on 15 June 1942. She is married. She has two adult children and five grandchildren. The plaintiff was involved in a transport accident on 19 October 2003. She and her husband had caught a taxi to the Morwell Club in Morwell. As the plaintiff was getting out of the taxi, it suddenly moved forward. The plaintiff had one leg in the taxi and one leg out of the taxi. She was dragged along the ground and, as the taxi stopped, she was thrown out on to the road. She fell on to her knees. The plaintiff's body was jolted in the incident. After the transport accident the plaintiff was given home. She went to bed. The next day the plaintiff said that she felt "crook", and she went to her general practitioner's clinic where she saw Dr Poturak. She had pain in the knees and was sore all over. Within a few days the plaintiff had developed urinary incontinence and pain in the right hip and low back. The plaintiff returned to her GP on 22 October 2003, and Dr Poturak referred her to the Latrobe Regional Hospital. The hospital records from the plaintiff's consultation on 22 October 2003 were tendered in evidence. Of relevance was the note that the plaintiff's past medical history included lower back pain on and off for 19 years. The plaintiff said that she had occasional back pain over the years prior to her transport accident. The plaintiff described this pain as being of the type most women have after having children.
6 She underwent a CT scan on 6 June 1994. The report on that CT scan was: "Stacked contiguous cuts have been performed from L3 S1. In addition angle cuts have been performed through the disc spaces. Spinal canal stenosis present at the L3 4, L4 5 and L5 S1 levels. No disc prolapse is seen at the L3 4 level. Disc bulging is seen at the L4 5 level. This is causing mild central compromise. The lateral recesses are not compromised and the epidural fat planes are reserved. Mild disc bulging is seen at the L5 S1 level. There does not appear to be a significant compromise. Degenerative changes are seen in the lower lumbar facet joints, particularly marked at the L4 5 and L5 S1 levels. No other significant abnormality is seen."
7 The plaintiff returned to her general practitioner on 23 October 2003. She was referred for X rays and a CT scan. The CT scan undertaken on 28 October 2003 was reported as showing "Conclusion: severe central canal narrowing at L4 5 and L5 S1 with further narrowing of the left exit foramen at L5 S1 from a combination of disc and facet joint changes."
8 The plaintiff saw her general practitioner on 3 November 2003 at which time her complaints included low back and right hip pain. Dr Poturak completed a TAC initial medical certificate on 3 November 2003 in which she described the plaintiff's accident related injuries as "a minor soft tissue injury". Dr Poturak recorded as "Relevant past medical history: low back pain due to spinal canal narrowing."
9 In that TAC certificate, Dr Poturak made these comments: "In my opinion the patient sustained soft tissue injury due to the accident. As a minor injury I believe she would recover completely without permanent damage."
10 The plaintiff's symptoms did not resolve. She continued to experience low back pain and pain extending to the hips and legs. The plaintiff was referred for physiotherapy, and in a letter from her physiotherapist Kui Hunt to her general practitioner dated 6 November 2003 the physiotherapist stated that the plaintiff presented on 6 November 2003 with low back pain radiating down both her lateral thighs. The plaintiff stated that she received medication for pain relief but as it made her ill she was prescribed Voltaren suppositories.
11 The plaintiff has had persisting symptoms of low back pain with pain extending to the hips and legs since the transport accident. She has had episodes in which her back pain has flared up. One dramatic example of this was in September 2007. The plaintiff was pulling a doona up on a bed when she experienced shooting pains and her legs gave way causing her to fall. As a result of this severe exacerbation, the plaintiff was visited at her home by her general practitioner on 21 September 2007 and 6 November 2007. A repeat CT scan was undertaken on 25 September 2007. The radiologist's conclusion was: "Broad based posterior disc protrusion at L3 4 level. No significant canal stenosis. Posterior and right paracentral disc protrusion at L4 5 level. There is canal stenosis. Effacement of the right lateral recess noted with impingement of the descending right L5 nerve root. There is bilateral foraminal stenosis at this level with impingement of the existing right L4. No definite impingement upon the exiting left L4 posterior and left paracentral disc protrusion at L5 S1 level. No significant canal stenosis. Effacement of the left lateral recess with impingement upon the exiting left S1 nerve root. Bilateral foraminal stenosis and impingement of the exiting nerve roots."
12 The plaintiff attended at the Latrobe Regional Hospital Emergency Department on 9 November 2007. In a letter to the TAC dated 9 November 2007, the doctor in the Emergency Department stated, and I quote: "65 year old female with new onset intermittent urinary incontinence of two days duration and progressive immobilising bilateral sciatica of one month duration on background of chronic L4 5 disc protrusion and spinal canal stenosis proven on CT scan performed 25 September 2007 (attached). The current problem represents an acute exacerbation of her on going back pain that is directly attributable to her TAC claim."
13 The plaintiff was an inpatient at the Latrobe Regional Hospital for four to five days. She was seen by Mr George Owen, orthopaedic surgeon, on 14 November 2007 following a referral from her GP on 3 November 2007. When Mr Owen tried to examine the plaintiff, he found this to be difficult as the plaintiff appeared to be in a lot of pain and was quite narcosed. She was almost incoherent. The plaintiff has little memory of her stay in hospital. She thought she had only been in hospital for one day whereas she was in hospital for approximately four to five days. Mr Owen changed the plaintiff's medication which had included substantial narcotics and organised an urgent epidural steroid injection. Mr Owen reviewed the plaintiff on 26 November 2007 and noted a positive response to the epidural injection. The plaintiff had substantially lost the right leg radicular pain which was a significant symptom following the September 2007 exacerbation.
14 The plaintiff has had further flare ups of back pain. One recent example was in May 2010 when the plaintiff hoped to go camping and fishing with her husband, but an increase in back and leg pain caused her to return home prematurely. The plaintiff described the effect her back and leg pain has had upon her social, recreational and domestic activities. She used to enjoy fishing and camping, but she is restricted in her ability to undertake these activities. She is restricted in her ability to garden. Now she just manages some pot plants her husband has placed at an appropriate height for her. She has difficulty walking, sitting and driving a motor vehicle. The plaintiff used to socialise at the Morwell Club, but she attends the club less frequently because of her condition. The plaintiff has not been in employment, rather, she has been in receipt of Social Security benefits at all material times as her husband had retired from work. Prior to the transport accident, the plaintiff had a busy domestic and social life. She enjoyed visiting friends and family, and maintaining her home. She still does her housework, but this work is divided over the week. She cooks and cleans on alternate days, but is unable to clean the toilet and bathtub. She and her husband now share many household tasks. Bending is a constant problem. The plaintiff's husband does a lot of their shopping.
15 Prior to the transport accident the plaintiff was an active member of the local community. She helped an elderly neighbour, who has cancer, with her grocery shopping. She has had to restrict this assistance since her transport accident because of her back pain, and her husband has had to provide most of the help to their neighbour this year. The plaintiff continues to visit her elderly neighbour and take her some food she has cooked for her. She also takes her neighbour to doctors for cancer treatment. The plaintiff undertook charity work making sweets and decorating boxes and providing these as auction items each Easter for the Royal Children's Hospital appeal. She continues to undertake this work for charity. The plaintiff has difficulty dressing herself.
16 The plaintiff's husband, Ronald Draper, provided an affidavit in support of the plaintiff's application. He was not cross examined. In that affidavit he described the marked effect the plaintiff's back injury sustained in the transport accident has had upon her, he also described the significant effect some exacerbations of her condition have had upon her.
17 Much of the medical evidence relied upon by each party was, in my opinion, unsatisfactory. The plaintiff's general practitioner's clinical records were tendered in evidence. The plaintiff was cross examined at length about entries in these clinical records. These records were the subject of detailed analysis and submissions by counsel. On the one hand, Mr O'Dwyer, who appeared with Mr Goldberg for the plaintiff, submitted that these clinical records supported the proposition that the plaintiff had little, if any, back problem prior to the transport accident, whereas since the transport accident she has had significant on going back problems. Mr Elliott, who appeared with Ms Annesley on behalf of the defendant, submitted that I ought to conclude from these records that the plaintiff sustained nothing more than a minor soft tissue injury in the transport accident and thereafter, during the period from the transport accident until September 2007, she had very little treatment for the back injury and there were hardly any complaints of back pain. In my opinion, the GP's clinical records do not support either of these submissions.
18 When the plaintiff was cross examined about these clinical records during the period from 2003 to 2007, there was the following exchange Question: "So what I am putting to you, Mrs Draper, that between 2003 and 2007 there weren't a great deal a great number of visits to the doctor complaining of your back, were there? Well, you are saying no and I am saying yes." Question: "Well, I have just gone through them? Well, as far as when you go to see your doctor everything is talked about in slow in conversation, not everything is recorded."
19 Having carefully considered these clinical records, they appear to me to be often very brief, vague, non specific and expressed in a manner which may be capable of being understood by a general practitioner but is either incapable of being understood or capable of being misunderstood by another reader.
20 As at 9 April 2008, the plaintiff's current medications were noted as comprising 23 drugs. The plaintiff has been prescribed much medication over the years. She has a number of medical conditions, both physical and mental. In my opinion, it is likely that the plaintiff may have mentioned one or more of these conditions at a consultation with her GP, but that history may not have been recorded. This is, in effect, the plaintiff's evidence. One example of this is the entry for Thursday November 30, 2000. The only diagnosis recorded is depression. A prescription is provided for Prozac, an antidepressant. But there is also a prescription for Voltaren suppositories. Voltaren is an anti inflammatory. Therefore it is likely there was some discussion of a physical ailment, although this is not recorded in the notes. On Thursday, August 9, 2001 the recorded diagnosis is "too good hearted". No doubt this has meaning for the GP, but this entry is not capable of being understood by me. Another example of entries in the notes which may be ambiguous and capable of misinterpretation contains the plaintiff's flu injections. Generally the plaintiff had a flu vaccination each year. The entry in the notes is identical each year and it includes the comment "feeling well". I am not satisfied that I can infer from that entry that the plaintiff had no back pain at that time.
21 I consider there is a great danger in placing undue weight on these clinical records in the absence of oral evidence from the plaintiff's treating GPs. For these reasons, I found these clinical records to have been of very limited assistance, and I do not consider that they provide support for the respective submissions of either party.
22 The plaintiff's principal treating general practitioner over the years since her transport accident was Dr Vera Nikolic. In her report dated 22 May 2008, she expresses these opinions after describing the plaintiff's transport accident: "The accident itself caused obvious soft tissue injuries followed some two days later by right hip pain and lower back pain. A CT scan of her back was carried out on 28 October 2003 which noted 'severe central canal narrowing at L4 5 and L5 S1 with further narrowing of the left exit foramin at L5 S1 from a combination of disc and facet joint changes'. Given Mrs Draper already had some degenerative disc changes in her lumbar spine before her accident, the accident would have aggravated her condition and clinically given her lower back pain and right hip pain. Because her spinal condition is of a degenerative nature, unfortunately it will not improve over time. The primary cause of her present condition is degenerative arthritis of the spine. It is hard to say how much permanent damage was done at the time of the accident, but her present condition has deteriorated since that time. The condition of her spine can also be exacerbated by some of the activities of daily living, and this appears to have been the case in September 2007. Since then, she has from time to time presented with low back pain which has not been the result of the activities of daily living and which appears to have been the progressive deterioration of the back condition itself."
23 The up to date report from a general practitioner was provided by a general practitioner, Dr Edwards, who had not seen the plaintiff. Mr George Owen did not provide an opinion on the medico legal issues.
24 The plaintiff was seen for medico legal purposes at the request of her solicitors by Mr Stanley O'Loughlin, orthopaedic surgeon. His initial opinion that the transport accident aggravated degenerate disc disease and caused a disc injury at L4 5 was based on an incorrect history, which was that the plaintiff never had any back pain before the transport accident.
25 His most recent opinion, having reviewed the plaintiff and her medical records, was that: "In my opinion Mrs Draper has degenerate disc disease affecting her lumbar spine which no doubt pre dated the injury. Even though she said she did not have any significant back pain in the past, it has been reported that she had minor back pain in the early 1990s and had a CT scan at that time which showed degenerate changes. The CT scan taken after her injury, however, has shown more severe disc degeneration, and a disc bulge at L4 5 with probable nerve root impingement at that level and the level below. It is my opinion that the subject injury she sustained caused a disc injury at L4 5 and caused her degenerate change to be aggravated and to become symptomatic."
26 In a supplementary report dated 31 August 2010, Mr O'Loughlin expresses these opinions: "All I can say is that between 1994 and 25 September 2007 Ms Draper had evidence of a disc injury that has developed at L4 5. I do not have any CT scan or MRI scan evidence that this specifically occurred as a result of the accident on 20 October 2003. If there are any investigations after this accident demonstrating the disc prolapse I would be prepared to say that the disc prolapse is directly related to the accident of 20 October 2003. If it can be shown that there was no disc prolapse at that time, and if there is evidence that Ms Draper was free of back pain and right sided sciatica between 2003 and September 2007, I would be prepared to say that the accident of 20 October 2003 was not significantly responsible for her current condition. In summary, from my consultation and discussion and examination of Ms Draper, I was under the impression that she has never been free of back pain since the accident of October 2003 and associated right sided sciatica. I therefore concluded that her current clinical state and the flare ups of back pain she has had are a result of the aggravation of disc degeneration and probable L4 5 disc injury associated with the accident of October 2003."
27 The plaintiff was assessed by the orthopaedic surgeons, Messrs Shannon and Dooley, at the request of the defendant. Mr Shannon, in his report dated 7 December 2009, expressed these opinions: "Diagnosis: multiple soft tissue injuries with aggravation of preexisting lumbar disc degeneration. Soft tissue injuries, both lower limbs. Prognosis: she is likely to have on going symptoms in her back due to the longstanding degenerative change. Discussion: clearly Mrs Draper had longstanding degenerative change in the lumbar spine requiring investigations, including CT scans, a number of years prior to the motor vehicle accident. The nature of the accident could well have aggravated the underlying degenerative change and certainly the CT scan at the time showed quite significant degenerative change and spinal canal stenosis. This was clearly not caused by the accident but could have been aggravated. She is somewhat vague about the history between 2003 and 2007 and the general practitioner's notes are equally vague. He was apparently prescribing anti inflammatory medication but it is not clear whether this was for her back or knees. What does appear to be clear is that she had a major episode of flare up of back pain lifting a doona at home in 2007, and this required a prolonged period of bed rest and hospitalisation. She apparently had some sciatic symptoms which have substantially resolved. At this stage, although she has quite significant degenerative change, disc bulging and stenosis, she does not have any objective evidence of radiculopathy. Comment: noting the significant and longstanding history of back problems and the extent of the degenerative change, I would suggest that most if not all of this impairment is pre existing and, indeed, the significant flare up of symptoms occurred three years after the accident, and it is difficult to relate that flare up to the accident."
28 Mr Dooley in his report dated 26 February 2008, expressed these opinions: "Diagnosis: I believe that Mrs Draper sustained the following orthopaedic injuries in her motor vehicle accident: 1, a soft tissue injury to the lumbar spine region; 2, soft tissue injuries to the knee. Diagnosis and clinical impressions: Mrs Draper said that she was aware of low back pain and buttock pain following the accident. As outlined above, she said that she did note on going symptoms, but it is difficult to obtain a definite history of the exact nature of the on going pain. Given the mechanism of the motor vehicle accident, certainly it is feasible that Mrs Draper sustained a soft tissue injury to her lumbar spine. This most likely involved musculo ligamentous damage and some aggravation of the underlying degenerative disc disease and associated spinal canal stenosis. Four years following the motor vehicle accident, Mrs Draper bent over and noted acute low back pain and subsequently severe right lower limb pain. The severity of her pain necessitated admission to hospital. I believe that in this episode she aggravated the underlying degenerative disc disease/spinal canal stenosis and she developed so called femoratica secondary to L4 nerve root irritation. This sort of pain is severe and patients often require admission to hospital. Fortunately it usually settles of its own accord. The markedly reduced knee reflex and the altered sensation in the L4 distribution are consistent with this diagnosis. Mrs Draper suffers from naturally occurring degenerative disc disease of the lumbar spine and, secondary to this, degenerative spinal canal stenosis mainly at the L4 5 level. I believe that this underlying condition was aggravated in the motor vehicle accident and certainly it could account for on going intermittent low back pain. The episode in September 2007, however, as outlined above, was an acute episode that occurred after bending over. It would be my view that this episode does not directly relate to the motor vehicle accident, and could have occurred whether or not the motor vehicle accident occurred and resulted in the aggravation of the underlying degenerative disc disease."
29 Under the heading: "Injuries and current symptoms", Mr Dooley stated: "Mrs Draper's symptoms do have an organic basis. As outlined above, I believe that her on going intermittent low back pain and intermittent lower limb pain can be related to the soft issue injury sustained in the motor vehicle accident. I believe, however, that the episode of September 2007 occurred as an acute episode secondary to her bending over and aggravating her underlying condition, and was not directly related to the motor vehicle accident. I have discussed Mrs Draper's preexisting degenerative disc disease in the body of the report. I do not believe that there are any significant psycho social issues impacting on her presentation."
30 In a supplementary letter dated 25 March 2008, Mr Dooley stated: "As outlined in my report, I believe that the acute pain in 2007 related to an exacerbation of degenerative disc disease after Mrs Draper bent over. I do not believe that the episode directly related to the motor vehicle accident. As outlined in the report, I believe that the mechanism of the motor vehicle accident was consistent with Mrs Draper aggravating underlying degenerative disc disease, and that this could account for on going intermittent low back pain. I thought that the sensible treatment for her on going intermittent pain was to have a short supervised course of therapy, such that her condition would become self managed. On balance, I believe that the TAC would be liable for this supervised therapy."
31 In a further supplementary letter dated 9 April 2008, Mr Dooley stated: "It remains my view that in the motor vehicle accident Mrs Draper sustained a soft issue injury to the lumbar spine, which would account for some on going intermittent low back pain. The acute episode of low back pain that occurred in 2007 in my view relates to an incident when Mrs Draper bent over. In this episode, she exacerbated her underlying degenerative disc disease and developed acute low back pain. In my view, this episode does not relate to the motor vehicle accident or the soft tissue lumbar spine injury sustained in it."
32 Each counsel made submissions in which they criticised the medico legal opinions obtained by the opposite party. I have taken these matters into account. There are, as I have already noted, unsatisfactory aspects to the medical opinion. It is necessary for me to carefully consider this evidence in the light of the evidence of the plaintiff and her husband. Ultimately, the issue for me to determine is whether the plaintiff has proven on the balance of probabilities that she sustained an aggravation of her degenerative condition in the lumbar spine which resulted in severe exacerbations of back pain on occasions, such as the September 2007 incident, and which aggravation is itself a "serious injury" as defined in the Transport Accident Act and as interpreted in Petkovski v. Galletti.
33 There was no attack upon the plaintiff's credit. The plaintiff was assessed by psychiatrists, Dr Entwisle and Dr Walton, as her serious injury claim as pleaded was for psychiatric and physical injuries. Their observations and assessment of the plaintiff are relevant. Dr Entwisle, who examined the plaintiff at the request of the defendant on 2 December 2009, made this comment about the plaintiff: "Ms Draper impressed as a pleasant lady of simple nature and generous disposition." Dr Walton examined the plaintiff at the request of her solicitors on 12 March 2009, and he stated that: "At interview Ms Draper was pleasant, friendly and forthcoming."
34 I was impressed by the plaintiff. As a witness I found her to have been responsive, direct, clear and straightforward in her answers to questions, and refreshingly frank. She did not exaggerate or embellish the extent of her condition. I found the plaintiff to have been a witness of truth. I accept her evidence on the nature of her preexisting condition, the transport accident, the effects of that transport accident upon her, and the course, nature and extent of her symptoms since that time. I accept the evidence of the plaintiff's husband contained in his affidavit. I find that prior to the transport accident the plaintiff had occasional low back pain, but she was able to lead a busy and active life. I find that in the transport accident the plaintiff suffered both a fall and a jolting type incident to her body. I find that since the transport accident the plaintiff has experienced chronic symptoms of low back pain with pain in the hips and legs. I find that there have been flare ups or exacerbations of her symptoms, and at these times she has experienced very severe low back pain and pain in the legs.
35 I accept the evidence of the plaintiff's general practitioner, Dr Nikolic, and the medico legal consultant, Mr O'Loughlin, in preference to the opinions of Mr Shannon and Mr Dooley, for these reasons: Dr Nikolic saw the plaintiff on many occasions over the years. She was in a good position to assess the plaintiff, and she would have been very familiar with her condition. I find that the plaintiff has had chronic symptoms since the transport accident. I consider that there are illogical conclusions in the opinions of both Mr Shannon and Mr Dooley. Both doctors were prepared to accept that in the transport accident there could well have been the aggravation of degenerative changes, and this could account for the plaintiff's on going symptoms, yet they opine that the exacerbation in 2007 was unrelated to the transport accident. This seems inconsistent with the plaintiff's evidence, which I accept, which was that she had occasional low back pain prior to the transport accident, but thereafter has had chronic back and leg pain which varied in intensity, and her back since the transport accident has been subject to severe exacerbations.
36 I am satisfied that the plaintiff suffered the aggravation of degenerative changes in the lumbar spine in the transport accident which resulted in chronic pain and discomfort in the back and legs, and in severe exacerbations of symptoms such as the 2007 incident.
37 I find that the aggravation of degenerative changes has resulted in permanent impairment or loss of body function of the spine. In order to determine if that permanent impairment or loss of body function is serious, I have analysed the extent of impairment or loss of body function before and after the transport accident in accordance with Petkovski v. Galletti. I find that before the transport accident the plaintiff had an active life. She had occasional low back pain. Since the transport accident, she has had chronic pain and discomfort in the back, hip and legs. She has taken medication. She has been hospitalised in 2007. She is markedly restricted in her social, recreational and domestic activities. The plaintiff leads an unsophisticated life. Her pleasure in life has been derived from home, family, friends, her garden, fishing, her membership of the Morwell Club, and doing good works for others. Her ability to undertake activities involving these matters has been adversely affected by her back injury.
38 I am satisfied the consequences of the injury are serious to this plaintiff. In my opinion, this aggravation injury, when judged by comparison with the other cases in the range of possible impairments or losses, can fairly be described as "very considerable", and certainly more than "significant" or "quite marked" with respect to pain and suffering.
39 Accordingly, I grant leave to the plaintiff to bring proceedings for the recovery of damages.