Fairchild v Barro Administration Pty Ltd
[2012] VCC 961
•24 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-05666
| David Fairchild | Plaintiff |
| v | |
| Barro Administration Victoria Pty Ltd | First Defendant |
| Victorian WorkCover Authority | Second Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 & 12 July 2012 | |
DATE OF JUDGMENT: | 24 July 2012 | |
CASE MAY BE CITED AS: | Fairchild v Barro Administration Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 961 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 (Vic) – s134AB(16)(b) – permanent impairment of the function of the lumbar spine – pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G. Chancellor | Maurice Blackburn |
| For the First and Second Defendants | Mr S. Smith | Hall & Wilcox |
HER HONOUR:
The plaintiff applies under s 134AB(16) of the Accident Compensation Act 1985 (Vic) (the Act) for leave to issue proceedings for the recovery of damages for pain and suffering only in respect of an injury to the lumbar spine suffered during the course of his employment with the first defendant as a concrete mixing truck driver from 2000 or 2001 onwards and in particular on 3 January 2006. The injury relied on is the aggravation of pre-existing but asymptomatic degenerative changes in the lumbar spine resulting in permanent impairment to the function of the lumbar spine with pain and referred symptoms in the legs but without radiculopathy. Radiologically, there are lumbar disc bulges indenting the thecal sac at L3/4, L4/5 and L5/S1 levels but no neural compression.
The plaintiff says that the pain and suffering consequences of his lumbar spine impairment are more than considerable when compared with other cases in the range of possible impairments of the function of the lumbar spine.
The defendants concede that there has been a work-related aggravation of his pre-existing degenerative lumbar spine with permanent sequelae in terms of pain and suffering but rely on a number of factors which they say support a conclusion that the pain and suffering consequences of his impairment do not meet the required threshold. These factors include: the success of the pain management program undertaken by the plaintiff in 2009; the infrequency of ingestion of medication; the infrequent complaints of low back pain to his treating doctor since 2007; the fact that the plaintiff was able to work in alternative duties with no time off work prior to the termination of his employment by the first defendant in June 2009 and has been able to work full-time since 2009 as a security officer; and the fact that he has retained his ability to walk each day, to perform some renovation work at his home, and to be involved in a range of recreational activities with his family.[1]
[1] The plaintiff can still participate overseas holidays and camping trips in Victoria and he has maintained his involvement in his daughters’ sporting activities.
At the hearing, the plaintiff gave evidence and was cross-examined. No other witnesses were called. The parties tendered court books containing affidavits, medical reports as well as the clinical notes of the plaintiff’s treating general practitioner, Dr Ross Wines. I have considered all the evidence relied upon by the parties..
Plaintiff’s work history and medical treatment
The plaintiff’s evidence may be briefly summarised. He is 47 years old and was educated to Fourth Form at Technical School. He was a hydraulic technician by trade and commenced employment for the first defendant as a concrete mixer truck driver in 1997. He suffered frequent jarring of the back while driving. The job also involved setting up the concrete shute on the truck and working with a shovel. From 2000 or 2001 he developed intermittent low back pain, and after a few years he experienced worsening and more constant back pain with referred pain into the right buttock, right leg and foot. He had sought medical treatment in 2005 for his low back pain.
On 3 January 2006 he experienced a particular flare- up of low back pain which was so intense that he had to leave work and seek medical treatment. He had two to three weeks off work and was treated with analgesics and Valium. He returned to work on light duties on 16 January 2006 and worked in the despatch office, gradually returning to his normal duties by mid-March 2006. He obtained a brace for his lower back on the recommendation of his physiotherapist. However, he suffered worsening back pain in late June 2006 related to prolonged driving on bumpy roads. He underwent a CT scan on 28 June 2006 which revealed a disc protrusion at L4/5 and severe disc degeneration and bilateral facet joint arthropathy at L5/S1. Dr Wines certified him fit for light duties. He continued driving but did not do any heavy work. In mid-October 2006 he commenced office based work as a customer service agent in central despatch. He was required to remain seated for extended periods of time and he and his workmates were generally prevented from taking any breaks if they had been working less than two hours.
The plaintiff found that the prolonged sitting was aggravating his back pain.
From January to March 2007 he undertook a spinal management program with a physiotherapist and in April 2007 he had a three month gym membership.
He saw Dr Wines again on 30 October 2007 and underwent a further CT scan on 31 October 2007 which revealed a small residual disc protrusion at L4/5 and severe disc degeneration at L5/S1. He attended Dr Wines again on 11 February 2008 complaining of low back stiffness. The plaintiff found that his duties in the call centre which required prolonged sitting were aggravating his back pain further. His pain levels were becoming “unbearable at times”[2] and he found he could no longer cope. He was also stressed by dealing with dissatisfied customers and felt that management was unsupportive. He stopped work with the first defendant on 28 February 2008.
[2]Exhibit B, from the Plaintiff’s Further Further Amended Court Book Index (PCB), page 15.
Dr Wines referred him in early 2008 to a pain management specialist, Dr Brian Lovell, to a neurosurgeon, Professor Peter Teddy, and to a psychologist, Ms Fiona Batchelor.
MRI of the lumbar spine on 7 April 2008 was reported as showing a small disc bulge at L4/5, a small and central right paracentral protrusion indenting the thecal sac and contacting the right S1 nerve, as well as markedly reduced disc height.
The plaintiff attended Dr Wines in July 2008 complaining of low back pain and was prescribed Endep, Voltaren and Tramadol.
He was enrolled in a Pain Management Program at the Royal Melbourne Hospital from January to March 2009. A report by Dr Meng Tan from the hospital[3] noted that he was diagnosed with a chronic pain syndrome but that inflammatory arthritis and compressive radiculopathy were excluded. He was advised to take regular paracetamol and amitriptyline for pain. The plaintiff said that he found the program helpful in teaching him “some ways to deal with pain. However, the underlying pain has not resolved”.[4]
[3]Exhibit B, PCB page 41-42.
[4]Exhibit B, PCB page 15.
On 7 January 2009 the Medical Panel found that he was unfit for his pre-injury work as a concrete mixer truck driver due to aggravation of lumbar spondylosis with referred symptoms in the legs.[5]
[5]Exhibit B, PCB page 79-80.
His employment was terminated by the first defendant in June 2009. He was reviewed by the Pain Management Centre at the Royal Melbourne Hospital on 3 June 2010. The plaintiff remained off work. In October 2010 he undertook a security course and in January 2011 he commenced employment with G4S Custodial Services as a security guard. He now works full-time at the William Cooper Justice Centre.
Medical Evidence
There was broad consensus between the treating and examining specialists (Dr Lovell and Dr Hwang) and surgeons (Professor Teddy[6], Mr Marshall, Mr McTeigue, Mr Dooley, and Professor Bittar) that the plaintiff suffered work-related[7] aggravation of pre-existing but asymptomatic degenerative changes in the lumbar spine affecting mainly the L4/5 and L5/S1 discs resulting in discogenic low back pain and right leg pain. Some examiners (Professor Bittar, Professor Teddy and Mr McTeigue) found clinical features of radiculopathy. Most agreed that there was no indication for surgery. There was also consensus among the medical experts that due to his lumbar spine injury the plaintiff was permanently incapacitated for his pre-injury work.
[6]Exhibit B, PCB page 31-35b.
[7]Mr Marshall made a similar diagnosis to other specialists, but felt that any work-related aggravation had resolved after the plaintiff was given sedentary duties by his then employer.
Dr Wines reported in March 2009[8] that the plaintiff’s lower back pain was mechanical in nature and consistent with his work history and employment with the first defendant, both as truck driver and in his alternative duties. He agreed with the specialists that lower spinal surgery was not the appropriate treatment because the plaintiff’s back pathology was not limited to the L5/S1 disc and his symptoms were caused partly by other degenerative changes in other discs.
[8]Exhibit B, PCB page 18-25.
Dr Wines reported on 30 September 2011[9] that when he last saw the plaintiff in July 2011 his pain had been “reasonably well controlled on long term Tramadol and Voltaren”[10] and that he was self managing his condition. He was walking daily and was independent with all his activities. He had been able to perform light outdoor work and renovation work at home, with hired labour doing the heavier tasks. He was involved in the administration of a martial arts club.
[9]Exhibit B, PCB page 26-30.
[10]Exhibit B, PCB page 29.
In his most recent report dated 20 May 2012[11] Dr Wines noted that his current position as a security guard was compatible with his chronic back condition. He noted a report from the plaintiff in February of “minor back aches on most days” but was taking simple analgesics once per week.[12]
[11]Exhibit B, PCB page 30a-30b.
[12]Exhibit B, PCB page 30b.
Pain and Suffering
The pain and suffering consequences of the plaintiff’s back injury are set out in the plaintiff’s affidavits,[13] which were adopted by the plaintiff, and in the plaintiff’s viva voce evidence. They can be summarised as follows.
[13]Exhibit B, PCB pages 11 – 17d.
Even when he was off work, as was the case in 2010, he had constant low back pain varying in intensity but always present. The pain was exacerbated by prolonged sitting or standing and by bending or twisting movements, but could also flare up for no obvious reason. He would suffer “from a particularly bad episode of pain a couple of times or so in an average month”.[14] When this happened, he could be “out of action”[15] for anything from a day to a week. At those times, the pain would often travel down his right leg to his foot. During these “bad episodes of pain”[16] the pain was so severe that he could do very little and had to rest while trying to vary his posture regularly.
[14]Exhibit B, PCB page 15.
[15]Exhibit B, PCB page 15.
[16]Exhibit B, PCB page 15.
When his pain was not too intense, he found walking about twenty minutes or so twice each day quite helpful as long as he did not jar the back while walking.
In his second affidavit,[17] the plaintiff said that at present he is able to work full time because the work is not physically demanding and he can pace himself and vary his posture throughout the day. He still has a constant base level of pain in the middle of his lower back which often travels down his right calf to his foot. His pain increases during the day and by the evening he has to rest so that he can face the next day of work. The referred pain in his right leg is not constant but is usually present to some degree. “[I]t flares up frequently and, when it does, it feels like a very sharp stabbing or electric shock type pain that goes all the way down to the calf muscle”.[18] Lifting even moderate weights and prolonged sitting or standing for more than half an hour results in rapid escalation in his pain. Bending and twisting movements often bring on sharp pain lasting a number of hours.
[17]Exhibit B, PCB pages 17a-17d.
[18]Exhibit B, PCB page 17b.
He is able to control his pain levels at work to some extent by moving around regularly, but still experiences flare-ups of back pain to “a quite sharp or severe level on multiple occasions every week and… will go home from a shift in significantly increased pain”.[19] He still experiences episodes of very sharp pain every few weeks as well as “very bad episodes of pain to the extent that I am virtually bedridden every few months”.[20]
[19]Exhibit B, PCB page 17c.
[20]Exhibit B, PCB page 17c.
In spite of his constant pain, he stated that he tried to cut back on medication as much as possible: “If I am able to I prefer to simply put up with the pain”.[21] He takes Tramal and/or Tramadol when the pain is too much to bear. He has no specific treatment regime because there is none, and he has accepted that he simply has to deal with pain as best he can.[22]
[21]Exhibit B, PCB page 17c.
[22]Exhibit B, PCB page 17d.
At the hearing, the plaintiff said that prior to his injury he was a very keen motorcycle rider and once raced in Motocross. He would ride every weekend all year round, with friends and his wife (before their children were born). He owned three bikes but had sold them. He has not ridden since 2006 because he is afraid of suffering a sudden flare-up of his symptoms somewhere where help is not available. He said that his daughters would like to ride motorcycles but he cannot ride with them to teach them and so he does not want them to ride. He said that prior to his back injury he used to go on long distance camping trips with his family and had bought a camper van for this purpose. However, due to his injury, he was now only able to go on shorter trips, taking breaks after two hours of driving, and his wife and children have to do most of the setting up at each location.
Prior to his injury, the plaintiff was involved in martial arts. Since his injury, he has not been able to perform any martial arts but takes his daughters to their classes and gives them technical advice. Sometimes he is able to participate in the warm-up exercises done at the classes. He is upset that he is not able to be actively involved in that activity. Similarly, he is upset that on a family holiday to Hamilton Island in 2009 he was unable to participate in jet-skiing, jet boat rides or the motor bike tours with the rest of his family. On a holiday to the United States in 2011, which was paid for by his mother, the plaintiff was upset that he could not go on a number of rides with his children due to his concern about aggravating his back pain. He still goes to his shed and cleans his tools but is no longer able to do any mechanical work.
The plaintiff said that he loved his job as a concrete mixer truck driver as it was outdoor, hands-on work that took him to different building sites and was interesting. He said that he was not suited to office work and did not have good writing skills. He insisted that his back pain was a significant reason for him leaving his employment with the first defendant. He said he did not enjoy his job in security but was happy to be working for financial reasons.
The plaintiff said that most nights he cannot get comfortable and his sleep is interrupted by pain. He said that his sex life was “almost non-existent”[23] due to his back pain, and that he was very intolerant when he was in pain. He does very little maintenance around the house, and his wife does most of the household chores. He was able to organise renovations to his home and pool by employing a friend as builder and having others perform the manual labour. He said he cleaned about 20 bricks per day (of the 3500 bricks used on the job) to assist them, but did so by building a ledge so that he could keep the bricks at waist height while he cleaned them. The stacking of the bricks was done by others, including his daughters. He employed a concreting company to do the concreting work which, prior to his injury, he would have undertaken himself. When renovating his laundry, he was able to lay a few tiles but the tiles were lifted and carried for him by his daughters. He became emotional when describing the loss of his ability to do physical work at home.
[23]Transcript page 21, line 20.
He agreed that he did not attend doctors regularly in 2006 and 2007. He said that he was doing his best to lead a normal life, but found that he was unable to do anything he previously had pleasure with, such as doing sports with the kids, bike riding, or coaching at basketball. He said that when he saw Professor Teddy and Dr Lovell they told him his injury was permanent and he would need to “relive”[24] his life, and learn to live with restrictions. He had taken on board all that he had learned at the pain management course and modified all his activities to allow him to manage his pain and to prevent exacerbations of pain. He had learned to simply put up with the pain and to only use medication when he has to, that is, when he has “bad issues”,[25] which I take to mean exacerbations of his pain. He agreed that he has only had three days off work in 18 months and has not sought any specialist treatment since March 2008.
[24]Transcript page 51, line 22.
[25]Transcript page 48, line 6.
The various treating and examining specialists noted a range of pain and suffering consequences suffered by the plaintiff.
Mr Marshall reported that the plaintiff had “an almost destroyed L5/S1 disc” and persistent severe back pain[26]. Dr Lovell[27] noted that prolonged sitting was “most provocative for his pain”.
[26]Exhibit B, DCB page 15.
[27]Exhibit B, PCB page 36-37.
Mr John McTeigue reported on 5 December 2009[28] that the plaintiff complained of constant aching in the low back with more severe symptoms every week or fortnight. He also complained of occasional sciatica. His symptoms were aggravated by bending and lifting and were relieved by rest. He could walk for 40 minutes, drive for an hour, and mow the lawn with caution. He could no longer ride motor cycles.
[28]Exhibit B, DCB pages 20-23.
Dr Tim Hwang reported on 3 February 2010[29] that the plaintiff complained of constant low back ache which is manageable with regular episodes of flare-up. He noted that the plaintiff was walking about 2 kms each day, and doing exercises in a swimming pool. He had taken up some exercises derived from karate classes. He noted that the plaintiff was taking Tramadol slow release each night, and short-acting Tramal for breakthrough pain. He was only taking Endep occasionally to assist with sleep.
[29]Exhibit 1, from the Amended Defendant’s Court Book Index (DCB) page 20-23.
Mr Dooley noted in his report of 16 November 2010[30] that the plaintiff’s loss of lumbar spine function has been “mild to moderate”,[31] and that he would continue to experience “some background aching pain and intermittent exacerbations of lumbar spine pain”.[32] In his second report dated 10 August 2011,[33] he noted that regular exercise and “sensible modification of activity can reduce the frequency and intensity of superimposed exacerbations of pain”.[34]
[30]Exhibit B, DCB pages 30-33.
[31]Exhibit B, DCB page 33.
[32]Exhibit B, DCB page 33.
[33]Exhibit B, DCB pages 34-36.
[34]Exhibit B, DCB page 36.
On 28 October 2011, Ms Batchelor[35] reported that when she last saw the plaintiff on 21 December 2010 he told her that “he had learned to manage his back condition as best he could and that he knew his limits. He still experienced pain but realised that he would have to “put up with it”.
[35]Exhibit B, PCB, page 72
Professor Bittar reported on 30 April 2012[36] that the plaintiff benefited from the pain management program and since then had managed with oral analgesia, Tramadol, as required. He noted the plaintiff’s main complaint was of constant lower back pain in the form of “a constant dull ache with sharp exacerbations”,[37] brought on by standing or sitting for more than 30 minutes, bending and twisting or heavy lifting. The exacerbations raised the severity of his back pain from three out of ten to ten out of ten. He also complained of intermittent and sharp right sciatica with exacerbations where the pain was a level of nine out of ten. In the case of both the lower back pain and the right sciatica, relief was obtained by analgesia, rest and change of posture. Professor Bittar noted that the plaintiff “is likely to continue to suffer from significant pain and disability into the foreseeable future”,[38] and that there were a number of “adverse effects”[39] of his work-related lumbar spine condition: he socialises less due to sitting and standing intolerance; his work capacity is restricted; and his ability to undertake domestic activities, such as cleaning, around the house are restricted and he needs help from his wife and children. In addition, his recreational activities “are severely restricted”:[40] he no longer rides a motorbike, nor plays football or basketball, nor engages in martial arts, and “[h]e is also unable to engage in the full range of recreational activities with his children”.[41]
[36]Exhibit B, PCB pages 72a-72d.
[37]Exhibit B, PCB page 72b.
[38]Exhibit B, PCB page 72d.
[39]Exhibit B, PCB page 72d.
[40]Exhibit B, PCB page 72d.
[41]Exhibit B, PCB page 72d.
I note that the medical evidence concerning the plaintiff’s pain and restrictions is consistent with the plaintiff’s own evidence.
Legal principles
In order to make out the serious injury within paragraph (a) of the definition in s 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function, and that the consequences to him in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[42] The Court must consider the impairment of a body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[43]
[42]Accident Compensation Act 1985 (Vic) s 134AB(38)(c).
[43]Sabo v George Weston Foods [2009] VSCA 242, [66]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [42] (Ashley J).
On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[44] The ‘pain and suffering consequences’ of an injury encompass the plaintiff’s experience of pain and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. The intensity and frequency of the pain must be assessed in the light of the plaintiff’s evidence (which may be affected by the Court’s assessment of the plaintiff’s credibility), the treatment received, the medical evidence, and the objective evidence about the disabling effect of pain.[45]
[44]Fleming v Hutchinson (1991) 66 ALJR 211.
[45]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [9]-[12]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [45]-[47] (Tate JA).
Where the plaintiff relies on impairment comprising the aggravation of a pre-existing condition, the plaintiff must establish that the impairment constituted by the aggravation amounts to a “serious injury”.[46]
[46]Barwon Spinners Pty Ltd & Ors v Podolak [2002] VSCA 33; Petkovski v Galletti (1994) 1 V R 436
In determining the application the whole of the evidence is to be considered, and a successful return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering, particularly where the alternative employment found by a worker has not had the effect of reducing his symptoms.[47] What matters is the extent to which an area of work which the plaintiff enjoyed has been closed off to her or him.
[47]Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 79 per Tate JA; Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
Generally, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[48]
[48]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199] (Dodds-Streeton JA).
Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[49]
[49]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52.
Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[50] Each case has to be determined in the light of its own facts.[51]
[50]TAC v Dennis [1998] 1 VR 702, 703 (Callinan J).
[51]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
Overall the Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[52]
[52]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].
I am entitled to take into account that the plaintiff is 47 years old and that he will experience these pain and suffering consequences for a considerable period of time.[53]
[53]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [44] (Ashley JA).
Findings and reasons
There was general consensus in the medical evidence and I therefore find that as a result of his work-related injury the plaintiff suffered an injury to the lumbar spine by way of aggravation of pre-existing but asymptomatic degenerative changes resulting in a permanent impairment of the function of the lumbar spine comprising discogenic back pain and some irritation of the lumbar/lumbosacral nerve roots resulting in referred pain to the legs. There was also consensus in the medical evidence that the plaintiff was permanently incapacitated for his pre-injury duties by his lumbar spine impairment and the persisting symptoms associated with it.
I found the plaintiff to be an impressive witness. He gave his evidence in a very straight forward fashion and without embellishment, and I accept it. I acknowledge that he loved his pre-injury occupation as a concrete truck driver, and that he only ever wanted to work in a physical, outdoor occupation. I accept that while he is grateful to have found employment as a security officer since January 2011, he takes no longer takes pleasure in his employment. This is a an aspect of his loss of enjoyment of life flowing from his lumbar spine impairment.
Prior to his injury he was a very active, fit, vigorous man engaged in a heavy occupation, substantial and strenuous physical and sporting activities, heavily involved in the sporting activities of his daughters and regularly engaged in recreational activities such as motor bike riding.
It is clear from his presentation and his evidence that he is a stoic man who, in his own words, has had to learn to “relive”[54] his life, that is, to live a completely different life than that which he led prior to his injury, in order to manage his pain and to prevent severe exacerbations of pain which can put him out of action for days at a time and which require him at those times to take substantial medication. He has learned from his pain management program how to manage his pain as best he can, with a minimum of medication.
[54]Transcript page 51, line 22.
I am satisfied on the evidence that he is seriously affected by the ongoing pain which he experiences, including the difficulties experienced during an exacerbation of symptoms, and that he is distressed at what he has lost as a result of the impairment of the function of the lumbar spine. He has had to give up a physical, outdoor, heavy occupation which he loved, in favour of a job in which he takes no pleasure but which helps him meet his financial obligations. His constant pain affects his sleep and seriously interferes with his sexual relationship with his wife. He cannot sit or stand for long periods. He can no longer do any substantial labouring work either at home or elsewhere. He cannot play basketball with his daughters, nor coach their teams, nor participate actively in demonstrating martial arts activities to them. He cannot teach them to ride motorbikes. He can no longer ride motorbikes at all and has sold his bikes. He has a limited ability to participate in activities with his family when on holidays.
In all the circumstances, I consider that the pain and suffering consequences of the plaintiff’s lumbar spine impairment are more than considerable when compared with other cases in the range of impairments of the function of the lumbar spine.
Conclusion
Leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering in respect of the injury to the lumbar spine sustained during the course of his employment with the first defendant between 2000 or 2001 to 28 February 2008. I reserve the question of costs.
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