Haynes, Anthony v Merbein Mushrooms Pty Ltd
[2009] VCC 821
•10 July 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MILDURA
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-03310
| ANTHONY HAYNES | Plaintiff |
| v | |
| MERBEIN MUSHROOMS PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Mildura |
| DATE OF HEARING: | 1 July 2009 |
| DATE OF JUDGMENT: | 10 July 2009 |
| CASE MAY BE CITED AS: | Haynes, Anthony v Merbein Mushrooms Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0821 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – lumbar spine – pain and suffering only – whether consequences to the plaintiff are serious
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Casey QC and | Ryan Legal Services Pty Ltd |
| Mr B Anderson | ||
| For the Defendant | Mr A Moulds and | Lander & Rogers |
| Ms S Manova | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to Section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 8 and 9 September 2004 (“the said dates”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of ‘serious injury’ to be found in s.134AB(37) of the Act. There, ‘serious’ is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The impairment of body function relied upon in this case is the lumbar spine.
5 The plaintiff relied upon two affidavits and he was cross examined. In addition, both parties relied on medical reports and other medical material which was tendered in evidence. I have read all the tendered material.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(vii I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
6 The plaintiff is presently aged thirty six, having been born on 5 January 1973. He currently resides with his partner and their one year old baby.
7 The plaintiff attended school in the Mildura area until Year 10, after which he commenced an apprenticeship as a fitter and machinist, which he completed in about 1992.
8 The plaintiff had some backache as a teenager but recovered after a week. He also had some back pain in about 1995 or 1996 but within a few weeks his pain resolved and he had no further problems until 8 September 2004.
9 In October 1993, the plaintiff went to Kalgoorlie to work, staying there for approximately five years working as a site fitter and/or maintenance fitter. In late 1998, he returned to Mildura for family reasons and he obtained a job at White Engineering for four months, and he then worked at Mildura Fruit Juices for a year. For two years he worked as a maintenance fitter for A & G Engineering until he started work with the defendant on 29 April 2002.
10 The plaintiff’s job involved maintenance and repair and fitting work on the defendant’s forklifts and trucks. The plaintiff was also responsible for the mechanical maintenance of two conveyor production lines. He worked from approximately 7.30 am to 4.00 pm, Monday to Friday.
11 In early September 2004, the plaintiff was directed by his supervisor, Mark Attwood, to accompany him to premises in Mt Barker in South Australia to dismantle a boiler. Whilst there, on 8 September 2004, it was necessary for the plaintiff to climb into the back of a utility laden with the defendant’s material to try and manoeuvre an oxyacetylene trolley out from the back of the utility. Whilst reaching out in a crouching position, hunched under the canopy, the plaintiff felt a sudden pain in his lower back and upper right leg. The sharp pain eased somewhat and he continued working for the rest of the day, although with some back pain.
12 The plaintiff was cross examined about his activities at Hahndorf, where he stayed the night of 8 September. The plaintiff agreed that he had had “plenty of beers” that night but he denied that he had fallen down some stairs.
13 The plaintiff returned to the Mt Barker premises the next morning, during which time he felt pain in his lower back and right leg. To carry out his work, the plaintiff had to stand on a sloping roof and hold an aluminium ladder. It was very windy and it was difficult for him to hold the ladder whilst the rigger, who weighed about one hundred kilograms, was moving around on it. At that time the plaintiff felt sharp pain in his lower back and down his right leg.
14 That night the plaintiff was suffering from a lot of pain in his back. In cross examination, the plaintiff confirmed that he complained to Mr Attwood of pain in his lower back when travelling back to Mildura at that time.
15 The plaintiff struggled through work the following day, and on 13 September 2004, he saw Dr Omarjee, general practitioner, because of increasing back pain. Dr Omarjee certified the plaintiff unfit for work for a week and prescribed rest and Panadeine Forte. The plaintiff returned to work performing light duties on 23 September 2004.
16 The plaintiff worked for a couple of days but the light duties aggravated his lower back pain and he went off work again on 27 September 2004 and had physiotherapy treatment from Mr Huckson.
17 The plaintiff returned to work in around February or March 2005 and continued in his employment with the defendant until September 2005 on normal duties.
18 The plaintiff then took up a job for McGuigan Simeon Wines, now known as Australian Vintage (“the Company”), as a maintenance fitter, a job he has continued to work in fulltime since that time.
19 Whilst he manages to work, the plaintiff is careful about how performs his duties and avoids as much as possible performing movements that aggravate his low back pain. His employer and co workers are sympathetic and helpful but by the end of each day, the plaintiff is usually very sore in the lower back, which makes him more tired after work.
20 The plaintiff is finding his job is getting harder and harder. He has to avoid rebuilding the fixed pipes and he concentrates on the mobile pump so he can stand up and adjust his position.
21 The plaintiff agreed in cross examination that he is a pretty highly sought after and experienced maintenance fitter. He explained that he can now do only half the tasks of a maintenance fitter. His employer does not let him work in confined spaces repairing leaks or removing agitators. He is not permitted to do staircase work nor is he allowed to do a lot of conveyor work which requires him to squat or lie down on the ground. As the plaintiff explained, his employer “steers him clear” of those jobs.
22 Before the said date, the plaintiff was hoping and planning to go back to Kalgoorlie. Had he had been able to do so, he would have been earning much more than the hourly rate he now earns with the Company. The plaintiff would not be able to work as a maintenance fitter in Kalgoorlie or Broken Hill or any other mine because of his low back pain. He had a realistic chance of obtaining work there with Burgess Lazer Aligning, a company which provides specialised fittings for mines.
23 Before the said dates, the plaintiff’s main recreational activity was riding his Harley Davidson motorcycle which he had owned for some years. Prior to the said dates he rode once a week but since then he has been lucky to ride every couple of months. He could now ride for only fifty or one hundred kilometres, depending on how he felt.
24 The plaintiff’s symptoms have worsened over the last year or so. He has increased difficulty with basic functions, such as walking, squatting and bending, and he suffers from daily back pain, more noticeable in the mornings and evenings. After a big day at work he feels absolutely “toasted”, his back gets very sore and he needs to relax on his back lying flat. He tries to do his exercises everyday but sometimes it is a battle because his pain is too uncomfortable.
25 His low back pain is always there and it is of fluctuating severity. When it is severe the plaintiff also has pain through his hips and leg, going down more on the right and down to his right foot, where he also gets pins and needles. When the pain is severe it feels like “someone is having a poke around with a knife” and such pain can grab him at unpredictable moments even when just walking or sitting.
26 The plaintiff’s lower back pain is aggravated by walking up and down stairs or on uneven ground, which he sometimes has to do at work. Bending and lifting and prolonged sitting also aggravate his lower back pain. If he stops moving for an extended period, he then has trouble getting going again because his back stiffens up and he then tries to do his exercises.
27 In November 2007, the plaintiff had a flare up of lower back pain and attended his doctor, who prescribed Panadeine Forte. In cross examination, the plaintiff explained he had been taking Panadeine Forte since the said dates, not just following this attendance with his doctor
28 The plaintiff continues to receive treatment from Dr Omarjee, who prescribes painkilling medication, such as Panadeine Forte, and also Oxycontin and Endone, since about March 2009, when the plaintiff’s symptoms worsened. The plaintiff tries to avoid taking medication as much as possible because it “wreaks havoc” on his stomach. He also does not like taking stronger medication as it affects his ability to work. The plaintiff always has Panadeine Forte with him to take when he needs it and he tries to “stay with” Nurofen medication for pain relief, which he takes regularly.
29 The plaintiff continues to do the exercises that Mr Huckson has shown him and he occasionally receives a massage from his father, who is a masseuse, and also from a co worker masseuse.
30 Since March 2009, the plaintiff has gone to have more treatment “to see if his back can be fixed” or at least he “can get some more comfort with life in general”. He described the last couple of months as “not having been a great deal of fun just in general with home, life and work”.
31 In May 2009, the plaintiff was referred to Mr Jithoo, neurosurgeon, at the Royal Melbourne Hospital. Mr Jithoo performed an epidural injection in May which did not really help the plaintiff. The plaintiff is to undergo another injection in the near future.
32 In the last twelve months or so the plaintiff took two or three weeks off work because of his back pain, taking one week in a block and then a few days here and there.
Lay Evidence
33 The plaintiff’s supervisor at the Company, Bruce Ferguson, swore an affidavit on 12 May 2009. He deposed he worked in a team at the winery with the plaintiff.
34 Mr Ferguson deposed that the Company would not want the plaintiff to aggravate his back any further and avoids giving him the heavier jobs at work. For example, if an agitator had to be removed from a wine tank, Mr Ferguson would get someone else to do the job or otherwise ensure the plaintiff had another worker with him. He would also get the plaintiff to work on the mobile pumps rather than the fixed pumps so that the plaintiff could use the elevated bench.
35 Mr Ferguson noted the plaintiff reported back pain to him on a regular basis. He gave the plaintiff time off work when the plaintiff’s back was particularly bad. He stated when the plaintiff’s back was sore it was noticeable that he was not moving properly and he looked stiff. Mr Ferguson has often seen the plaintiff rubbing his lower back and understood that the plaintiff needed to do exercises for his back and at times needed painkilling medication.
The Plaintiff’s Medical Evidence
Treating Doctors
36 Dr Omarjee provided a report dated 2 January 2008 detailing his treatment of the plaintiff since 13 September 2004, when the plaintiff consulted him in relation to low back pain. On that occasion, the plaintiff told him the onset of this pain was when working doing laborious activities, including duties on a roof.
37 Dr Omarjee initially put the plaintiff off work for a week and prescribed simple analgesia and referred him for physiotherapy.
38 On review on 20 September 2004, the plaintiff told Dr Omarjee that his back was improving and he was using Panadeine for pain relief. Dr Omarjee thought it appropriate to start the plaintiff on light duties if he felt he could tolerate it.
39 On 8 February 2005, the plaintiff was placed on full duties. Dr Omarjee noted the plaintiff was incapacitated for work during parts of 2004 and 2005. In his view the plaintiff’s impairment may be permanent in terms that later in life he may have exacerbations.
40 The plaintiff has continued to consult Dr Omarjee, who has prescribed Panadeine Forte and organised various investigations of his back.
41 Dr Omarjee’s report does not detail examinations beyond March 2005.
42 In late September 2004, the plaintiff was referred for physiotherapy treatment to Mr Huckson at the Sunraysia Physiotherapy and Sports Injury Centre.
43 Mr Jithoo, neurosurgeon, reported to Dr Omarjee on 18 May 2009, having reviewed the plaintiff at the Royal Melbourne Hospital’s Neurosurgery Outpatient Clinic that day.
44 Mr Jithoo described the MRI scan carried out on 18 May 2009 as showing a loss of lumbar lordosis with an L4-5 disc bulge present. He noted there was a right lateral recess protrusion displacing the S1 nerve root and there was no significant neural compressive abnormality noted. He noted mild facet arthropathy seen at the L5-S1 level. Mr Jithoo recommended a CT-guided L4-5 steroid injection with local anaesthetic.
45 Mr Jithoo wrote to the plaintiff’s general practitioner on 24 June 2009, advising he had reviewed the plaintiff on that date. Mr Jithoo noted the plaintiff had not had much improvement after his L4-5 nerve sheath injection for L4-5 disc herniation and right sided sciatica. Mr Jithoo recommended a further L4-5 epidural steroid injection to be carried out at the Royal Melbourne Hospital.
Medico Legal Examinations
46 The plaintiff was examined by Mr Russell Miller, orthopaedic surgeon, on 18 November 2008. At that time, the plaintiff complained of lower back pain and discomfort. The pain radiated into both legs but predominantly the right.
47 Mr Miller had available to him the CT scan of 27 February 2004, which he noted revealed a mild right sided disc prolapse at L4-5 impinging on the right L5 nerve root. There was also a very minor disc bulge at the L5-S1 level with no impingement.
48 On examination, Mr Miller found diffuse lumbar tenderness and mild lower lumbar muscle spasm. There was a restricted range of movement.
49 In Mr Miller’s view the plaintiff had suffered an injury to his lumbar spine, being a disc injury at L4-5 and possibly the L5-S1 levels. He considered the plaintiff had significant symptoms and leg pain. He noted the symptoms were not improving and were unlikely to improve further, and he believed the plaintiff’s long term prognosis was only fair.
50 Mr Miller noted that the plaintiff had significant symptoms at work and had had a period of time off work recently and was concerned about his capacity to continue in his job. He noted the plaintiff would have reduced mobility as a result of the accident related effects and that the plaintiff had difficulty with riding his motorcycle, fishing and camping.
51 In Mr Miller’s view the plaintiff was not fit to return to pre injury work. He believed the plaintiff’s back condition would deteriorate if he continued with his present work. He thought the plaintiff had long term work restrictions which would include no large amounts of repetitive bending and lifting, no lifting of weights of more than ten kilograms and a requirement to shift his posture on a regular basis. Mr Miller regarded these restrictions as permanent and related to the September 2004 incidents. He thought the plaintiff’s condition had substantially stabilised.
52 Mr Kenneth Brearley, orthopaedic surgeon, first examined the plaintiff on 17 March 2008.
53 Mr Brearley viewed the CT images of the lumbosacral spine dated 27 September 2004. He noted at L4-5 there was a very obvious right sided disc bulge which indented the right side of the thecal sac and could be irritating the right L5 nerve root. At L5-S1 there was a mild central disc bulge.
54 On examination, there was no deformity or tenderness of the lumbar spine and there was slight restriction of all lumbar movements.
55 In Mr Brearley’s view the plaintiff had suffered an intradiscal injury of the L4-5 and L5-S1 intervertebral discs. There was a central disc rupture of the L4-5 disc which had resulted in disc protrusion to the right, with possible L5 radiculopathy. He noted the plaintiff had symptoms of nerve root irritation with pain in the legs, particularly the right, and also numbness and tingling at times in the right leg and foot.
56 Mr Brearley reported that the plaintiff was presently working as a fitter but was avoiding the heavier aspects of work. He thought the plaintiff’s impairment would be permanent, noting that symptoms had been present now for three and a half years and there was not likely to be any improvement in the foreseeable future.
57 Mr Brearley considered, as a result of his impairment, the plaintiff would have a reduced capacity to earn income from his usual occupation. He considered the plaintiff was unable to carry out heavier manual labour aspects of work, requiring assistance, and was unable to do significant overtime.
58 Mr Brearley thought the likelihood was that the plaintiff’s symptoms would continue in the present way. Mr Brearley noted the findings on CT scan were quite definite and there was unlikely to be any marked improvement in the foreseeable future.
59 Mr Brearley thought in fact, if the plaintiff were to put his back under considerable strain in the future, it was likely there would be further disc injury and frank prolapse or protrusion with obvious radiculopathy and at that stage operative treatment would probably be required.
60 Mr Brearley re examined the plaintiff in May 2009. The plaintiff told him he had required two or three weeks off work in the last twelve months since he had seen him, as a result of his back problems, and whilst he had been basically able to continue with his job, it had become increasingly difficult for him.
61 Mr Brearley noted the plaintiff’s symptoms were basically as previously described, with frequent discomfort or pain in the lower back and at times radiation of the pain down the right leg to the knee. Occasionally the pain went down below that level. The plaintiff said he had been disturbed by a sensation of pins and needles and numbness in both feet at times recently.
62 Mr Brearley noted the plaintiff had been put on Oxycontin and Endone but tried to avoid them. The plaintiff had been taking that medication over the past few months when he had an exacerbation. He was now taking Oxycontin once or twice a week, which he said disturbed his concentration and memory and made it difficult for him when working. The plaintiff took Panadeine Forte three or four times a week, depending on his pain level.
63 On examination, Mr Brearley found there was slightly more limitation of flexion than before, extension was to ten degrees and lateral flexion and rotation were as previously stated, to twenty degrees, and extension to ten degrees.
64 Mr Brearley had available the MRI scan of 18 May 2009, which he said showed very obvious right sided protrusion of the bulging L4-5 disc. He noted there was some stenosis of the right lateral recess displacing the descending first sacral nerve root. There was minimal foraminal stenosis bilaterally and at L5-S1 there was a small central protrusion and an annular fissure.
65 Mr Brearley also had available to him the CT scan of the lumbar spine carried out on 27 February 2009. He noted it showed degenerative changes at the L5-S1 level with bulging, particularly to the right side, and there was no evidence of nerve compression.
66 Mr Brearley concluded that the right sided disc prolapse at L4-5 was very obvious on the MRI images and there was no doubt about the organic nature of the plaintiff’s complaints.
67 Mr Brearley considered there was no likelihood of any improvement in the future and that the plaintiff would continue to have pain and suffering as a result of the injury to the L4-5 intervertebral disc which was sustained at work. To avoid serious exacerbations of his back pain, Mr Brearley thought the plaintiff should avoid heavy and repetitive lifting and repetitive bending and stooping.
68 Mr Haig, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 8 May 2009.
69 Mr Haig referred to the 2004 and 2009 CT scans acknowledging the presence of a prolapsed disc at L4-5 level to the right and a central prolapse at L5-S1 impinging on the thecal sac.
70 Mr Haig believed the injuries sustained by the plaintiff on 8/9 September 2004 were of prolapsed discs at two levels, namely L4-5 and L5-S1. He noted the evidence for this was the CT scan taken very shortly after, and the distribution of pain in the plaintiff’s leg.
71 In Mr Haig’s view the plaintiff was fit to work as a maintenance fitter but by his own admission the plaintiff was finding the job increasingly difficult to perform. Mr Haig considered work of a less physically onerous nature would be more appropriate.
72 In Mr Haig’s view the plaintiff’s prognosis was guarded, he had a disc prolapse problem at two levels and his symptoms were progressive. Mr Haig concluded that he believed the plaintiff was genuine in his complaint, had low back pain and intermittent lower extremity pains.
Investigations
73 A CT scan of the lumbar spine was carried out on 27 September 2004. There was a mild central and right sided disc bulge at L4-5 and also a mild central disc bulge at L5-S1. It was noted there may well be some irritation of the L5 nerve root on the right.
74 A CT scan of the lumbar spine was carried out on 27 February 2009. There were some degenerative changes at the L4-5 level, and reviewing the previous CT scan from 27 September 2004, it was noted appearances were similar.
75 An MRI scan of the lumbar spine was carried out on 18 May 2009. There was an L4-5 disc bulge with small right lateral recess protrusion displacing without compressing the S1 nerve root. There was no significant neural compressive abnormality.
76 A CT-guided foraminal injection was carried out on 21 May 2009 on referral from Mr Jithoo.
The Defendants’ Medical Evidence
77 The defendant relied upon a letter from Dr Omarjee dated 20 April 2005 to CGU Workers Compensation. In that correspondence, Dr Omarjee advised that the plaintiff experienced a sudden low back pain which was associated with shooting pains into his right leg which occurred at work whilst on a roof doing laborious activities.
78 At that time, Dr Omarjee thought the plaintiff’s capacity to return to full time duties was almost one hundred per cent. He noted the CT scan of 27 September 2004 explained the shooting pains into the plaintiff’s right leg which were commonly known as sciatica.
79 Dr Omarjee reported that the plaintiff had returned to full duties at work the previous month and had recently ceased physiotherapy. He believed the plaintiff was capable of returning to full duties and continuing his exercise program at home. He thought at that time the plaintiff’s pain was well controlled and minimal.
80 Dr Omarjee considered that the plaintiff had recovered from a discogenic back injury sustained at work. In his view, the plaintiff had progressed excellently through a physiotherapy rehabilitation program and he was at full duties at work. He noted the plaintiff was following a home exercise program and he required only minimal pain relief and should have minimal complaint in the future.
81 Dr Omarjee thought there was always some risk of recurrence of back pain and a job involving heavy manual work, however, he noted, “We will take these as they come”. In his view, with the plaintiff’s positive mind and willingness to maintain good muscle strength in his back from his home exercise program, those risks should be minimised.
82 The defendant also relied upon two reports from Mr Peter Scott, orthopaedic surgeon, which are now somewhat outdated.
83 On the first examination on 19 November 2004 the plaintiff told Mr Scott that on 8 September 2004, he experienced some backache when he moved about in the back of a utility to obtain some gear, but the pain resolved within a short time. The following day he was on a roof holding steady a ladder for a rigger when he developed backache which gradually worsened, and the plaintiff ceased work on 13 September 2004.
84 The plaintiff complained of back ache in the form of stiffness in the morning which eased off during the day, but he experienced backache with a lot of standing or sitting or walking any distance or any attempted heavy lifting. At the time of that examination, the plaintiff was not working.
85 In Mr Scott’s view, the plaintiff sustained an acute soft tissue injury, a musculoligamentous strain on 9 September 2004, together with a probable development of an early discogenic lesion, probably at the L5-S1 level, resulting in backache and buttock and right leg pain.
86 Mr Scott considered the plaintiff was fit for only light work.
87 When Mr Scott re examined the plaintiff on 6 May 2005, the plaintiff had returned to work on normal duties without restriction after having been placed on light duties for a week.
88 Mr Scott noted there had been a large measure of recovery but the plaintiff stated occasionally that he experienced some backache or back stiffness at the end of a heavy day’s work. At that stage Mr Scott noted the plaintiff’s symptoms had virtually subsided and the plaintiff no longer had any sciatic like symptoms. The plaintiff had a good range of movement of his back without any evidence of any lower limb neurological deficit.
Claim Documents
89 The defendant tendered the Worker’s Claim for Compensation completed by the plaintiff on 13 September 2004. The plaintiff noted the date of injury was 9 September 2004, describing an injury to his lower back which he first noticed on 10 September, and that he ceased work on 13 September 2004.
90 The plaintiff noted that he was pulling down a boiler just before the injury occurred. He was climbing and holding a ladder while other people climbed.
Findings
91 Counsel for the defendant submitted that I could not be satisfied in which incident on the said dates the plaintiff had suffered injury. It was submitted it was not open to the plaintiff to in effect argue an accumulation of injuries.
92 In response to this submission, counsel for the plaintiff pointed out that the same part of the plaintiff’s body was involved both incidents; the incidents happened a day after each other; there was no evidence of any recovery overnight and there was no medical evidence suggesting a separate injury.
93 I accept the submission of counsel for the plaintiff that the plaintiff suffered a compensable injury to his lower back on both the said dates.
94 There was no successful challenge to the plaintiff’s evidence in this regard. Further, the plaintiff mentioned the 9 September 2004 incident on his claim form completed on 13 October 2004, having reported his injury to Mr Attwood on 10 September 2004. On 13 September 2004, the plaintiff told Dr Omarjee he had suffered back pain in the previous week performing laborious duties, including working on a roof.
95 As Ashley JA pointed out in Grech v Orica Australia Pty Ltd (supra), at para 58:
“… a consequence may have a multiplicity of causes, including a
multiplicity of compensable injuries.”
96 I accept that the plaintiff has established a compensable injury on the said dates, the consequences thereof which have materially contributed to the impairment to his lumbar spine and its consequences.
97 I accept, as was conceded by counsel for the defendant, it is pretty clear that there is a compromise at the L4-5 level consisting of a bulge and some nerve root involvement.
98 The issue is therefore one of range - namely, whether the consequences to the plaintiff of the impairment to his lumbar spine when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than “significant” or “marked” and as being “at least very considerable” – s.134AB(38)(c).
99 The term ‘serious’ requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26: see in particular Chernov JA, at para 29.
100 The impairment must be permanent, in the sense that it is likely to last into the foreseeable future.
101 I accept the plaintiff is a credible, reliable witness who has continued to work full time despite ongoing and of recent times, increasing back pain.
102 Whilst counsel for the defendant submitted a capacity for full time work was a factor acting against a finding of ‘seriousness’, I accept the plaintiff’s evidence that he, a qualified, well respected maintenance fitter, now has the physical capacity to only do half the type of work he previously did because of his back condition.
103 This situation was confirmed in the plaintiff’s supervisor’s affidavit and elaborated upon further by the plaintiff in cross examination. The plaintiff explained that his present employer does not let him do the things he used to do and “steers him clear of various jobs” and other workers carry out the harder tasks for him.
104 Further, although continuing to work full time, the plaintiff has required two weeks or three off work in the last year because of back pain.
105 In all the circumstances, I accept that the plaintiff is a somewhat stoic man in the face of a serious, and at times, disabling back condition.
106 As Nettle JA commented in Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, at paragraph 4, that he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
107 In addition to his problems with his current job, I accept that by reason of his back condition, the plaintiff is now unable to undertake more lucrative work in his trade which he enjoyed in the mines in the Kalgoorlie area where he had been employed before the said dates.
108 Medically, the plaintiff is subject to flare ups, as evidenced by the deterioration in his back condition in 2007 and earlier this year. Since March 2009, his medication has been increased to include the more substantial painkillers, Oxycontin and Endone. Further, the plaintiff was referred for specialist treatment to Mr Jithoo, undergoing an epidural injection in May 2009 with little relief and he is awaiting a further similar procedure.
109 In such circumstances, I accept that the plaintiff’s back condition, now having continued to trouble him for over five years and one that is subject to severe flare ups, is permanent, in the sense that it is likely to continue into the foreseeable future.
110 Further, I accept that the plaintiff’s ability to enjoy his major hobby of motorbike riding has been affected to a large extent by his back condition, with him now being able to ride every couple of months over shorter distances compared to weekly as before the said dates.
111 Taking into account all of the evidence, I am satisfied that the plaintiff has a serious injury in relation to his lumbar spine and that his impairment, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked”.
112 Accordingly, I grant leave to the plaintiff bring proceedings for pain and suffering damages.
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