Houston v Victorian WorkCover Authority
[2022] VCC 1412
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-04582
| ROBERT LEE HOUSTON | Plaintiff |
| v | |
| VITORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2022 | |
DATE OF JUDGMENT: | 1 September 2022 | |
CASE MAY BE CITED AS: | Houston v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1412 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION – WORKPLACE INURY REHABILITATION AND COMPENSATION
Catchwords: Injury to the lower back – physical injury – whether the plaintiff has satisfied the threshold test for serious injury in respect of pain and suffering – credit of the plaintiff
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325 and s327; Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave granted to the plaintiff to bring common law proceedings to recover damages for pain and suffering arising out of an injury to his lower back in the course of his employment with H Polesy & Co Pty Ltd between 2012 and August 2019.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr J Pierorazio | Arnold Thomas & Becker |
| For the Defendant | Ms S Gold | Thomson Geer |
HIS HONOUR:
1This is an application brought by Originating Motion, whereby the plaintiff applied for leave pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”) to bring proceedings to recover damages suffered by him arising from his employment with H Polesy & Co Pty Ltd (“Polesy”) between 2012 and August 2019. The period of the plaintiff’s employment traverses both the provisions of the Accident Compensation Act 1985 (“the AC Act”) and the WIRC Act. Neither party took any issue with this point and the considerations for serious injury certification are the same in relation to both Acts.
2The plaintiff seeks leave to recover damages for pain and suffering. The plaintiff seeks leave pursuant to the definition of “serious injury”; that is, a serious long-term impairment or loss of body function to his lower back. The following evidence was adduced during the hearing:
· The plaintiff tendered the following exhibits:
§Exhibit “A”, the Plaintiff’s Court Book (“PCB”), pages 10 to 27, 47 and 51 to 75.
§The plaintiff gave evidence and was cross-examined.
· The defendant tendered the following exhibit:
§Exhibit 1, the Defendant’s Court Book (“DCB”), pages 16 to 23, 36 to 43, 54 to 155 and 158 to 159.
3At the commencement of the proceedings, Ms Gold, on behalf of the defendant, identified the following issues as relevant in this application:
(a) the plaintiff does not satisfy the statutory level for pain and suffering damages as a result of the physical injury to his lower back (a range case);
(b) the plaintiff does not have any ongoing treatment to his lower back; and
(c) the defendant takes no issue that there was an injury to the plaintiff’s lumbar spine in the course of his employment.[1]
[1]Transcript (“T”) 4
The Statutory Scheme
4The application is brought under the definition of “serious injury” contained in s325(1) of the WIRC Act, which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of body function”.
5The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment before 20 October 1999 or after 1 July 2014;[2]
(b) the injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[3]
(c) the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) subsection 2(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being more than “significant” or “marked”, and as being “at least very considerable”;
(e) subsection 2(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(g) in conformity with Barwon Spinners,[4] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss2(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[2]See s1 of the WIRC Act, and s134AB(1) of the AC Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[3]Barwon Spinners (ibid) at paragraph [33]
[4]ibid
6I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
7The plaintiff was born in Australia in 1961. He is now 61 years of age.
8The plaintiff is a divorced man and lives alone. He has three adult children and six grandchildren.
9The plaintiff was educated to Form-3 level at Glenroy High.[5]
[5]PCB 10
10After leaving school, the plaintiff worked in a warehouse-management type role. He then worked for approximately one year as a commercial cleaner for building sites.
11In July 2011, the plaintiff commenced employment with Polesy.[6]
[6]T6
12In August 2019, the plaintiff’s employment was terminated. The reasons and circumstances of the termination of the plaintiff’s employment with Polesy is not relevant in the determination of this proceeding.
13In March 2021, the plaintiff commenced as a warehouse manager at Couta Group.[7] The plaintiff continues to work in the role of a warehouse manager at Couta Group. His evidence is that this warehouse manager role is 20 per cent hands on and 80 per cent management.[8] He describes his work as a warehouse manager as being much lighter than his previous work. Coincidentally, Couta Group have taken over the same premises where Polesy once conducted its business. In effect, the plaintiff remains working at the same premises in respect to both employers.
[7]T13
[8] PCB 16
Injury with the Defendant
14The plaintiff, in his affidavit dated 28 June 2021, sets out four separate incidents where his lower back was injured. The plaintiff nominates 20 July 2012 and 13 September 2013 as the incidents which occurred in the currency of the AC Act.[9] The plaintiff states that his lower back was further injured on 16 March 2015 and 12 July 2016.[10]
[9]PCB 11
[10]PCB 12
15The defendant accepts that the plaintiff was injured at his place of work and that the injury was to his lower back.
16The plaintiff continued working with Polesy until 20 August 2019, when his employment was terminated. I note, for completeness, that the plaintiff injured his right leg on 14 August 2019.[11] This injury is not part of the serious injury application in this case.
[11]T13
17After the recovery from the injury to his right leg, the plaintiff initially commenced work at Extreme Freight on 19 November 2020. However, the nature of the work duties was far too heavy for him, and he had to cease working at that premises.
18The plaintiff then obtained employment with Couta Group on 3 March 2021 as a warehouse manager. As previously stated, this job was at the same premises where he previously worked for Polesy. The plaintiff continues to work at that address.
Medical treatment
19The plaintiff had previously made a claim for an injury to his lower back, described as a dislocated facet joint, dating back to 24 August 2009. This injury occurred when he was employed by a business known as ProWash. The plaintiff was taken to Sunshine Hospital by ambulance as a result of this injury. He remained in Sunshine Hospital overnight and was subsequently released. He attended a general practitioner, Dr Michael Willis, at Hillcrest Medical Clinic, for treatment in respect to this injury.[12]
[12]DCB 158-159
20I note, for completeness, that, at the time of this prior injury in 2009, the plaintiff was also attending Dr Hickmat Zuhairi at the Westmeadows Medical Centre.[13]
[13]DCB 43-155
21The plaintiff’s treatment in respect of his lower back injury, which occurred from September 2013 and onwards, has been managed by Dr Zuhairi. The nature of the treatment has been the prescription of Celebrex medication and referral to physiotherapy. The physiotherapy treatment has not taken place for the last couple of years.[14]
[14]T12
22The plaintiff stated that he continues to take Celebrex when the pain is too severe. The plaintiff was cross-examined about his ingestion of Celebrex and challenged about taking two Celebrex per week. In the medical prescription history at the Westmeadows Medical Centre, the plaintiff was prescribed Celebrex on 2 December 2019, 200 milligrams, thirty tablets, with one repeat. He was also prescribed Celebrex capsules on 25 November 2020, 200 milligrams, thirty tablets, no repeat.[15] The plaintiff was unclear on the frequency and number of tablets he would take to ameliorate his pain level. He did, however, state that he tried not to take these tablets because they upset his digestive system.[16]
[15] DCB 56
[16] T18
23In the history taken by Mr Peter Wilde, orthopaedic surgeon, the plaintiff said that no one was going to “touch his back”.[17] The plaintiff did undergo a CT scan on 16 April 2015. The conclusion of the CT scan was as follows:
“Mild L3/4 and L4/5 disc bulges with a mild L4/5 left lateral disc bulge contacting the left L4 nerve foot. Right L5/S1 facet arthropathy.”[18]
[17]PCB 61
[18]PCB 47
24The plaintiff has never been referred to an orthopaedic surgeon for treatment.
Medical opinions
The Plaintiff’s doctors
Dr Hickmat Zuhairi, general practitioner
25Dr Zuhairi prepared a report dated 10 June 2022. Dr Zuhairi set out his diagnosis as follows:
“Lumbar bulging disc at L3-L4 and L4-L5 with mild L4-LS left lateral disc bulge contacting left L4 nerve root ‘Left Sided Sciatica’.
Right L5-S1 facet arthropathy ‘Lumbar Spine Spondylosis’.”[19]
[19]PCB 74
26Dr Zuhairi states that if the plaintiff has a flare-up of back pain he needs treatment and spinal surgeon opinion.[20] Dr Zuhairi further stated that he had not consulted Mr Houston for his back pain since 2018.[21]
[20]PCB 74
[21] PCB 75
27The clinical notes of Dr Zuhairi indicate he saw the plaintiff on 2 December 2019, when the plaintiff was complaining of lower back pain when he tried to get out of a chair. On that occasion, Dr Zuhairi prescribed Celebrex capsules.[22] Dr Zuhairi also consulted with the plaintiff on 11 February 2021, when the plaintiff complained of chronic lower back pain.[23]
[22]DCB 116
[23]DCB 139
28Dr Zuhairi, in his report, stated that the prognosis for the plaintiff was uncertain, but noted that the plaintiff’s back condition was chronic.[24]
[24]PCB 75
Associate Professor Bruce Love, orthopaedic surgeon
29Associate Professor Love prepared a report dated 28 January 2022. This was a medico-legal report. Associate Professor Love took a history from the plaintiff in respect of his symptoms as follows:
“He now describes constant, relatively severe pain in the lower back which is of variable severity. He states standing for any extended period of time will aggravate his pain. Prolonged sitting is also troublesome.
His current pain is confined to the lower back and radiates towards the hip but does not pass further through the lower limbs.”[25]
[25]PCB 54
30Associate Professor Love noted that the plaintiff’s range of movement was moderately reduced. Associate Professor Love referred to the CT report and noted that there was a disc protrusion at L4-5. Associate Professor Love’s opinion was that the ongoing treatment by way of use of Celebrex was appropriate.[26]
[26]PCB 55
31Associate Professor Love’s diagnosis was that the injury was an aggravation of age-related degenerative changes of the lumbar spine. In his opinion, the prognosis for the plaintiff was such:
“… that there is unlikely to be any significant diminution of symptoms and one might expect with suitable care his symptoms will not deteriorate.”[27]
[27]PCB 55
Mr Peter Wilde, orthopaedic surgeon
32Mr Wilde prepared a report dated 13 April 2022. This report was prepared for the defendant’s solicitors. Mr Wilde took a history from the plaintiff of three separate injuries to his back: September 2013, 16 March 2015 and 12 July 2016. At the time of his examination of the plaintiff, Mr Wilde noted the plaintiff was no longer attending physiotherapy or other medical treatments.[28] This is consistent with the plaintiff’s evidence in this case. Mr Wilde noted that the plaintiff gave a history of taking occasional Celebrex if his back was playing up.[29] Mr Wilde noted the findings on the CT scan of the lumbosacral spine examination conducted on 16 April 2015. Mr Wilde states:
“… After an injury in September 2013 his pain became chronic and has never completely resolved and he has battled on with symptoms ever since. At no stage has he complained of neurological symptoms in his lower limbs; he has not described a history of radiculopathy affecting his lower limbs. … .
…
As a result of this injury, I believe … [the plaintiff] significantly aggravated pre-existing lumbar spondylosis without radiculopathy. Despite adequate and appropriate treatment he did not make a full recovery.”[30]
[28]PCB 62
[29]PCB 62
[30]PCB 63-64
33Mr Wilde noted:
“Mr. Houston’s presentation was reduction of range of movements and clinical signs were all consistent with the injuries he described and the CT scan of the lumbar spine done on 16/4/2015. I did not find inconsistencies with the imaging and the clinical diagnosis that I have made. I found Mr. Houston to be a genuine witness to the physical signs. ”[31]
[31]PCB 66
34On the question of further medical treatment, Mr Wilde stated as follows:
“I have described the treatment [the plaintiff] received above. At this stage the only treatment he will require in the future is to spare his back in the workplace and he should have access to bursts of physiotherapy over six weeks if his back temporarily goes into spasm and deteriorates. I do not expect that in the medium to longer term he will ever require surgical treatment.”[32]
[32]PCB 66
35In Mr Wilde’s opinion, the plaintiff’s chronic back pain related to aggravation of lumbar spondylosis which has not resolved. It will never resolve and will trouble him in the foreseeable future.[33]
[33]PCB 67
36When Mr Wilde was asked whether or not the plaintiff exaggerated or displayed abnormal-illness behaviour, the response was as follows:
“… [The plaintiff] did not present with any features of abnormal illness behaviour either conscious or unconscious. He did not exaggerate. I found him to be an extremely reliable witness to the clinical findings.”[34]
[34]PCB 68
37It was clear from Mr Wilde’s report that he accepted the plaintiff as a true and accurate historian about his medical condition. In his opinion, the plaintiff was going to continue to suffer from his chronic lower back condition.
The Defendant’s medical practitioners
Mr Roy Carey, orthopaedic surgeon
38Mr Carey prepared a report dated 1 February 2021. The report is a medico-legal report. Mr Carey took a history from the plaintiff, where he denied any prior history of spinal pain before September 2013. He also noted that the plaintiff had never been referred to a specialist for treatment.
39Mr Carey noted he takes Celebrex “as needed for episodes”.[35]
[35]DCB 17
40Mr Carey noted the plaintiff’s current status as follows:
“… [The plaintiff] indicated the pain was still in the same lower back area, principally sited over the left lumbosacral region. There is on occasion some discomfort on the right. He feels this is of a constant ‘aching’ sensation.
Particularly when he gets into bed at night he gets the ‘hip’ symptoms but does not and has never had radicular symptoms in either lower limb.
Coughing, sneezing and turning suddenly may on occasion increase his back symptoms. In particular if he has been sitting for more than 30 minutes or so the pain is bad when he gets up out of a chair.”[36]
[36]DCB 18
41Mr Carey’s opinion was that the plaintiff was a pleasant and straightforward witness to his problem.[37] Mr Carey’s examination revealed that the plaintiff’s flexion was such that he could touch well below his knees, but extension, particularly to the left, reproduced his clinical pain exactly.[38] Mr Carey noted that the range of motion observed at the time of examination was consistent with his observed behaviour during consultation.[39]
[37]DCB 19
[38]DCB 19
[39]DCB 20
42In Mr Carey’s opinion, the plaintiff’s diagnosis is that he has likely had aggravation of lumbar spondylosis with back pain, but no sciatica and no radiculopathy.[40] In Mr Carey’s opinion, the plaintiff’s prognosis is for continued discomfort into the foreseeable future.[41]
[40]DCB 20
[41]DCB 20
43In Mr Carey’s opinion, the plaintiff was a person who presented as a pleasant and genuine witness to his complaints, with no evidence of embellishment.[42]
[42]DCB 22
Conclusion
44The preponderance of the medical evidence is that the plaintiff has suffered an aggravation of lumbar spondylosis with continuing chronic back pain. The agreed opinions of all medical examiners is that, at this stage, the plaintiff is not a person who requires surgery for his lower back complaint. The medical opinions are that the ingestion of Celebrex and periodic physiotherapy treatment is the most likely conservative and successful treatment for the plaintiff’s condition. All of the medical examiners accept the plaintiff as an accurate and sensible historian, who does not exaggerate his symptoms.
Credit of the Plaintiff
45The defendant accepts that the plaintiff has an injury to his lower back. The defendant also accepts that the injury to the plaintiff’s lower back occurred during the course of his employment with Polesy.
46The plaintiff was cross-examined about his failure to give a history to medical examiners of a back sprain which he suffered in 2009. The relevant claim form described the injury to the plaintiff’s lower back as a dislocated facet joint.[43] In his evidence, the plaintiff conceded that he was taken to hospital by ambulance and that he remained in hospital overnight. He was given analgesic, which he thought may have been morphine.[44] When challenged as to why he never told the doctors about it, he responded “to me, I mean, I was - a week I was back at work”.[45] The plaintiff went on to say he thought the injury to his knees was more relevant.
[43]DCB 158
[44]T9
[45]T9
47The plaintiff was also challenged about the fact he had not received any physiotherapy treatment for a couple of years.[46] The plaintiff responded that he had not worked for a period of some eighteen months in that two-year period.[47] The plaintiff’s history to all medical practitioners has been consistent that he has not had physiotherapy treatment for a period of two years.
[46]T12
[47]T13
48The final area of attack on the plaintiff’s credit was his statement that he took two Celebrex tablets a week.[48] The plaintiff explained that he tried to avoid taking Celebrex because it played up with his stomach.[49] The plaintiff gave evidence that the last time he had a flare-up of lower back pain, it caused him to go to a doctor in February 2021.[50] The plaintiff last received a prescription from his general practitioner for Celebrex in August 2021.[51]
[48]T18
[49]T21
[50]T23
[51]DCB 145 and T23
49Having had the advantage of observing the plaintiff give his evidence in the witness box, the plaintiff impressed me as being a person of honesty and accuracy in describing his symptoms and the consequences of his back injury to him. Each of the medical examiners in this case have made a similar assessment after their examination of the plaintiff.
50The plaintiff is a stoical person who does the best he can with the limitations he has due to his back injury. Even after he was summarily dismissed in August 2019, the plaintiff has continued to seek employment. He currently maintains employment as a warehouse manager. This is indicative of his determination to get on with life despite his difficulties as a result of the lower back injury.
51I accept the plaintiff as an accurate and honest witness in this case.
Consequences of the lower back injury for the Plaintiff
52In support of the plaintiff’s application, he has sworn two affidavits, dated 28 June 2021 and 8 June 2022. The plaintiff also relied on an affidavit sworn by his friend, Bryce Dee, dated 9 June 2022.
Sleep
53The plaintiff, in his first affidavit, deposed that his back pain affects his ability to sleep most nights and that he regularly wakes up in the middle of the night because of the pain. He goes on to describe how he is tired during the day because of his lack of adequate sleep.[52] In his second affidavit, the plaintiff states that the radiating-type pain can wake him in the middle of the night.[53] In the course of cross-examination of the plaintiff, he was not challenged about the impact of the lower back injury on his sleep. I find that the interruption to the plaintiff’s sleep due to his lower back injury is a very considerable consequence for him. The plaintiff’s lack of sleep is confirmed by his friend, Mr Dee.[54]
[52]PCB 14, paragraph [30]
[53]PCB 17, paragraph [5]
[54]PCB 70, paragraph [8]
Pain
54The plaintiff, in his first affidavit, states that he continued to experience pain in his lower back, which is constant, although it varies, depending on what he is doing. It is accompanied by a lot of spasm and radiates down into his hips and legs. The pain in the back is a lot worse than the pain in his leg, although there is some scarring, which is healed. In that statement, the plaintiff is referring to his injury to his right leg from August 2019.[55]
[55]PCB 13
55In his second affidavit, the plaintiff stated that he continued to suffer pain in his lower back, which radiates down into his hips.
56The plaintiff was not directly challenged or cross-examined by his level of pain. He was asked questions in relation to his current employment and stated that his back was not hurting as much with his current employment, as compared to his employment with Polesy, because the work was not as heavy. When it was directly put to him it was not hurting as much, he responded, “yes, it is hurting”.[56]
[56]T14
57I accept the plaintiff is suffering from constant pain in his lower back. The plaintiff’s level of pain fluctuates with activity. I accept the plaintiff has a stoical approach to the endurance of pain and tries to limit the amount of medication he takes for it.
58I accept that the experience of pain by the plaintiff is significant and at least a very considerable consequence for him. Despite his level of pain, the plaintiff just gets on with his life.
Medication
59In his first affidavit, the plaintiff states that he takes medication in the form of Celebrex, which is an anti-inflammatory. He stated that he took a couple a week. He stated he did not overdo it because it irritated his gastric and digestive system.[57] The plaintiff repeated that form of evidence in the witness box.
[57]PCB 14, paragraph [31]
60In his evidence, the plaintiff stated he was not absolutely clear on how many Celebrex tablets he takes. The following cross-examination took place:
Q:“And so you would have known that you need to be accurate because they are relying on your accuracy informing their opinion to a degree?---
A:Yes.
Q:All right. So he says as of January 2022, this is current treatment, ‘He has not had any physiotherapy for some 12 months’, that’s consistent with what you say?---
A:Yes.
Q:‘And relies on Celebrex to give him pain relief. He will use that frequently’?---
A:When I had to.
Q:Yes, okay. Well, frequently sounds like you are using it, you know, on a daily or weekly basis, is it your evidence you are using Celebrex on a daily or weekly basis?---
A:Maybe at some stages I was, yes.
Q:What about now? What about January this year?---
A:January this year, I don’t know when I had the last tablet. I know I had a Celebrex last week, so I mean, I don’t know how many I took in January.
Q:In your more recent affidavit, the one just a few days ago, in June, you say you take Celebrex from time to time to help deal with the pain. So that’s a little bit - I want to suggest to you that sounds like a lot less than frequently. Because His Honour has to make a decision, and you have given evidence that Celebrex is your only treatment you are having at the moment?---
A:Yes.
Q:So I want you to do your best to recall how often you are taking the Celebrex?---
A:Do my best. I can’t recall how many tablets I have taken.
Q:Are you taking it less now than you used to?---
A:I try not to take it because it plays up with my stomach, that’s what I said before.
Q:Okay?---
A:So I try not to take it. I am not a person that puts a Panadol or any tablets into me body or heaps of it, I don’t know how many I took.”[58]
[58]T20, L10 ꟷ T21, L10
(sic)
61The medical records of the plaintiff’s general practitioner indicate that the last time the plaintiff was prescribed Celebrex was on 25 November 2020.[59]
[59] DCB 56
62I accept the plaintiff, on occasion, takes Celebrex to ameliorate upsurges in pain. He has consistently told the medical examiners that was his pattern of medication ingestion. It is clear from his evidence, and his history to doctors, that he is not a person who seeks to take a lot of medication for pain relief. I accept that the necessity for the plaintiff to take Celebrex to alleviate his pain levels is a significant consequence for him.
63The plaintiff has ceased going to physiotherapy some two years ago. His explanation during the course of his evidence was, in that two-year period, he was unemployed and hence his activities were reduced. I note that the medical examiners recommend he will require, from time to time, physiotherapy treatment in order to alleviate his symptoms of pain in his back.
Lack of mobility and activities of daily living
64The plaintiff, in his first affidavit, stated that he was restricted in terms of being able to interact with his grandchildren. He stated that he could no longer lift them or engage in horseplay with them like he once used to.[60] When cross-examined about the reason he cannot play with his grandchildren had nothing to do with his back injury, the plaintiff readily agreed with that proposition.[61]
[60]PCB 14
[61]T29-T30
65The plaintiff is unable to perform the task of mowing the lawn and doing other gardening duties, and he now engages a gardener to perform those tasks for him.[62] In his second affidavit, the plaintiff states that he pays someone to mow the lawns for him.[63] The fact that the plaintiff needs the assistance of a gardener is confirmed by his friend, Mr Dee, in his affidavit.[64]
[62]PCB 14, paragraph [37]
[63]PCB 17
[64]PCB 70
66I accept that the plaintiff has engaged a gardener to mow his lawns and do other gardening duties because he is unable to attend to those tasks due to his lower back injury. I accept that, for the plaintiff, this is a very considerable consequence, as he is a man who is self-reliant.
Sport
67The plaintiff, in his evidence, and in his affidavits, states that he has been unable to play golf, or continue with tennis and playing pool, as a result of his lower back injury. In respect to the pool, he says he just simply could not be bothered due to back pain.[65]
[65]T30
68The plaintiff stated that he had previously played golf regularly at public golf courses in the Northern suburbs arounds where he lives. He states that he still goes to Corowa or Echuca on Labour Day weekends with his friends, but he does not play golf with them. He is unable to engage in golf due to his lower back pain. The fact that the plaintiff is unable to continue playing golf is confirmed by his friend, Mr Dee.
69I find that the circumstance the plaintiff finds himself, in the twilight of his working life, being unable to continue with a sport in which he was consistently involved, being golf, is a very considerable consequence for him.
Conclusion
70I accept that the plaintiff’s consequences in relation to the pain in his lower back, with some referral to his hip; the need for him to take medication on occasion to ameliorate those pains symptoms, and the interruption to his sleep, are very considerable consequences for him. I also find that the consequences of being unable to play golf and the need to engage are gardener are also very considerable consequences for the plaintiff.
71I find the consequences of the lower back injury to the plaintiff, when considered in the range of possible consequences arising from that lower back injury, are more than “significant or marked” and are best described as being “at least very considerable”. Each of the medical practitioners have described the plaintiff’s condition as chronic, in the sense that his condition will remain the same into the foreseeable future.
72The plaintiff’s application for leave to commence proceedings for damages for pain and suffering arising from, and as a result of, the injury to his lower back in the course of his employment with Polesy, is granted. The question of costs is reserved.
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