Ibis v Flicker's Australia Pty Ltd
[2010] VCC 476
•20 May 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-00498
| HUSEYIN IBIS | Plaintiff |
| v | |
| FLICKER'S AUSTRALIA PTY LTD | First Defendant |
| and | |
| GALLAGHER BASSETT SERVICES WORKERS COMPENSATION | Second Defendant |
| VIC PTY LTD |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 April 2010 |
| DATE OF JUDGMENT: | 20 May 2010 |
| CASE MAY BE CITED AS: | Ibis v Flicker's Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0476 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application under s.134AB Accident Compensation Act 1985 – serious injury claimed for a permanent serious impairment to the functioning of the plaintiff’s spine in respect of pain and suffering only – leave granted to the plaintiff to bring a proceeding to recover damages.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D O’Callaghan | Galbally & O’Bryan |
| For the Defendants | Mr C Miles | Wisewould Mahony |
| HER HONOUR: |
1 The plaintiff seeks leave to commence proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to recover damages arising out of his employment with the first defendant when he sustained injuries to his back on 22 October 2002.
2 The plaintiff alleges that in the course of his employment he was required to lift a roll of material from a pallet and insert it into a machine. As he lifted the roll, he experienced back pain, in particular, right leg pain and weakness. He ceased work.
3 The plaintiff relies upon sub-paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act; his contention being that he has sustained a permanent serious impairment to the functioning of his spine, particularly, the lower back.
4 The plaintiff seeks leave to issue proceedings to recover damages against the defendants with respect to pain and suffering only.
5 The defendants state that the application was contested on the following bases:
(1) The injury suffered by the plaintiff does not fall within the definition of
“serious injury”.(2) There is a disentanglement issue. (3) The plaintiff’s credit was in issue.
The Evidence
6 In bringing the application, the plaintiff relies on his two affidavits, sworn 4 September 2008 and 23 October 2009. The plaintiff was cross-examined. He relied upon medical reports of treating and examining doctors. The defendants relied principally upon medical reports. The defendants cross- examined the plaintiff’s general practitioner, Dr Baglar.
7 The evidence can be summarised as follows:
The Plaintiff’s Evidence
8 In his first affidavit, the plaintiff deposes that:
•
He was born in Turkey on 11 January 1956. He was educated to the equivalent of Grade 5 in Turkey. He can read, write and speak English, but has no trade or tertiary qualifications. He immigrated to Melbourne, Australia in 1974 and subsequently became an Australian citizen. He is married to Gullu with three children aged 25, 29 and 30, all of whom are now independent.
•
In Turkey he worked as an assistant to a cabinet maker. In Australia he has worked as a process/factory worker for a shoe company, Pacific Dunlop and General Motors. He commenced employment as a process worker with Flickers Australia Pty, the defendant, in October 1996. There he operated a variety of machines which were used in the textile dying process. At the date of the incident he was earning approximately $555 gross for a 38 hour week plus superannuation, with occasional overtime when available.
•
When employed by the defendant his tasks included lifting rolls of material from a pallet and inserting them onto a steel rod, which would slot onto the lapping machine at waist height. He would then feed the fabric onto a track so that it would automatically be pulled through the machine and fit another roll of material and join it to the end of the fabric already being fed through the machine. Rolls varied from 80 to 185cm in length, and from 22 to 38kgs in weight. The rolls were transported to his work station on a pallet and he had to lift each roll, without assistance, and carry them a short distance to the lapping machine.
•
He injured his back at approximately 9.00am on 22 October 2002, while working for the defendant on the lapping machine. At the time of the incident he was carrying a 26kg roll from the pallet to the lapping machine. As he lifted the roll he felt pain in his back, particularly the right leg. He ceased work and reported the injury to his supervisor, Mario Vella.
•
Since the incident he has been unable to work because of his back injury. In 2003 he made three attempts to return to work with the defendant, but all were short because of the back pain he experienced. In June 2004 the defendant terminated his employment due to his inability to work.
•
He has been receiving a disability support pension because of his back condition since 13 December 2004.
•
He suffers from constant low back pain which varies in intensity depending on medication and activity. The pain radiates into his right thigh and on occasions into his right foot, with intermittent numbness. The pain is exacerbated if he: sits for longer than 25 minutes, stands, bends, twists or walks in excess of 250 metres. He manages his pain by adjusting his position, taking medication and when at home, lying down for short periods.
•
He suffers from disturbed sleep as a result of leg and back pain. He has taken sleeping pills in the past. He generally wakes up stiff and inflexible. His pain can flare up at any time. His symptoms are worse in cold weather. He is reliant on daily medication and physiotherapy treatment for pain management.
•
He has experienced bouts of anxiety and depression as a result of adjusting to his chronic pain and changed circumstances. He has been prescribed medication for these psychological conditions.
•
Prior to the injury he enjoyed gardening and maintenance activities around the home, such as landscaping, building, tiling and maintaining the family cars. He is no longer able to undertake these activities as he used to. He also enjoyed socialising with family and friends, but is now restricted in these activities. He is unable to physically interact with his grandchildren, such as lifting and carrying them. He continues to drive, but is limited to 25 minute trips, as the sustained sitting aggravates his back. He still tries to do things, but is weary of exacerbating his pain.
9 In the plaintiff’s second affidavit, he deposes that:
• There has been no substantial change in his circumstances since the date of his first affidavit. • He takes between 3-8 Codalgin Forte tablets daily for back pain and referred leg pain. As a result of this medication he occasionally experiences stomach aches and constipation. He also takes medication for depression. • He ceased physiotherapy treatment twelve months ago, as he felt it was not helping. Generally, he feels there has been no improvement in his condition, if anything he feels he is worse. • He had a heated argument at a social function in February 2004. Subsequently, he was convicted and changed with assault and as a result spent four months in prison. He did not sustain any injury to his back as a result of the assault. He is embarrassed and ashamed of the incident and regrets its occurrence. 10 In cross-examination, the plaintiff conceded that he had brought proceedings for an earlier work-related injury to his head for which he was off work for two years. Once that proceeding settled, he returned to work. He had no previous injuries to his back.
11 The plaintiff conceded that he only attempted to return to work on one occasion for approximately one and a half hours. The plaintiff agreed that he had not disclosed to his solicitor at the time of the preparation of the first affidavit, the fact that he had recently been released from prison. He agreed that in June 2008, he saw Dr Mundae, his general practitioner, after he was released from prison when he was suffering from depression as a result of being in prison, as well as backache.
The Plaintiff’s Medical Evidence
12 The plaintiff relied upon a number of medical reports.
13 Dr Baglar, general practitioner, saw the plaintiff on the day of the accident. The plaintiff complained of a burning pain in his right hip, right knee and a very cold sensation on his right foot. Dr Baglar said the plaintiff had mild posterolateral circumferential disc bulging at L4 level more towards the right side, which was consistent with the CT scan of 28 October 2002 of the lumbosacral spine. In re-examination, Dr Baglar confirmed that the plaintiff’s complaints implied that there was some affliction of the nerve. He referred the plaintiff to a neurosurgeon, Mr Graeme Brazenor, who organised an MRI scan of the lumbar spine on 10 December 2002. The MRI scan detected:
“Moderate lower thoracic disc degeneration. Minor changes of desiccation involving the lumbar discs, more so at L4-5. A minor disc protrusion is seen into the exit foramen on the right at L4-5 causing slight impingement on the exiting L5 nerve.”
14 Dr Baglar described the MRI scan as detecting a mild extra foraminal bulging of the L4-5 disc on the right side. He agreed that the MRI scan was consistent with damage to the disc and that there was some organic basis for the plaintiff’s complaints.
15 Dr Baglar said he referred the plaintiff to Mr Brazenor because he thought he might need surgical intervention.
16 Dr Baglar noted that Mr Brazenor was recommending a conservative approach for the management of the plaintiff’s pain. He was also drawing attention to the discrepancy between the detected pathology and stated level of pain.
17 The plaintiff was referred to Dr Clayton Thomas, a pain management specialist. He, too, commented on:
“… some non-organic components to his presentation with non-organic signs and gross reduction in range of spinal movement, despite fairly unimpressive radiology.”
18 Dr Baglar was taken to the MRI scan performed on 30 April 2003, which showed:
“Mild discal degenerative changes in the lower dorsal spine region. No significant spinal canal narrowing can be demonstrated with only mild impingement of the exiting L5 nerve roots at L4-5 due to some discal narrowing of the neural exit foraminae at this level.”
19 Dr Baglar said the above MRI scan results were consistent with the plaintiff’s complaints.
20 Dr Baglar agreed that a patient presenting with the following presentation would be consistent with a disc injury – dragging his right leg; ankle jerk that was weak; dorsiflexion of the right big toe on the right side.
21 Dr Baglar agreed that a laminectomy is often performed to relieve pressure on nerve roots coming from a disc injury. Despite the fact that Mr Brazenor is a very good surgeon, Dr Baglar no longer refers patients to him because he has a “dismissive attitude” to the problems presented by the patient.
22 In cross-examination, Dr Baglar conceded that the level of complaints of pain of the plaintiff were incompatible with the CT and MRI findings. He was referred to the report of Mr Brazenor dated 3 February 2003. He agreed that the examination Mr Brazenor undertook of straight leg raising to 5 degrees on the left and 10 degrees on the right was inconsistent with the findings of 90 degrees, with the plaintiff being able to sit up to 90 degrees of lumbosacral flexion on the couch without apparently causing him significant pain.
23 Dr Baglar agreed that he was trying to get the plaintiff back to work as early as November 2002 but that the plaintiff was reluctant to even try. He thought the plaintiff had a work capacity.
24 The plaintiff ceased seeing Dr Baglar on 1 September 2003 when he changed general practitioners.
25 The plaintiff was medically examined by Mr Gull Keng, an orthopaedic surgeon, at the request of Dr Mundae. When examined in October 2003, the plaintiff complained of pain in the lumbar spine with pain radiating into his right leg and he was dragging his right leg. On examination, his right ankle jerk was weak and there was evidence of weakness of the dorsiflexion of the big toe on the right side. He said he could not lie in bed and had to change position as the pain woke him up. It was Dr Keng’s view that the plaintiff suffered from a disc lesion in the lumbar spine. He felt the injury was as a result of his work and said he was not able to do any type of work at that time. He thought he might gain benefit from a laminectomy.
26 Dr Jack Deady, general practitioner, provided a report dated 31 October 2004. He had seen the plaintiff on 24 June 2003 when he presented with severe pain in his lower back. The plaintiff had been hospitalised the previous night when a CT scan was organised. On examination, the plaintiff was hardly able to move. He was taking anti-inflammatory medication, namely Orudis, 200 milligrams SR, and analgesics, Panadeine Forte and Tramil, and Amitriptyline, 25 milligrams.
27 The plaintiff was seen again on 29 June, 30 July and 18 August 2003. Dr Deady considered the plaintiff’s injuries were consistent with the pain. He encouraged him to return to work. The plaintiff had attempted to return to work but he only lasted about one and a quarter hours.
28 The plaintiff also relied on medical reports from Dr Mundae, a general practitioner, whom he consulted on 1 September 2003 and who was treating him as at September 2009.
29 In his first report, Dr Mundae noted that he advised the plaintiff to continue with analgesics. In January 2004, he referred the plaintiff to Mr Brian Barrett, an orthopaedic surgeon, who recommended a discography which showed a mobile L5-S1 and appeared normal. L4-5 was ruptured anteriorally and injection of this disc produced pain. In June 2008, he referred the plaintiff to a psychiatrist, Dr Kocher, who expressed his view that the plaintiff was depressed and had adjustment problems. Dr Mundae’s history report indicates the referral to Dr Kochar was due to the fact the plaintiff had recently been released from prison and was depressed. The plaintiff was advised to continue with analgesics and anti-depressants. It was Dr Mundae’s view that the plaintiff suffered from genuine L4-5 disc lesions as evidenced by the discography, was psychologically not an ideal candidate for surgery and that he was not fit for any type of employment.
30 In 2009, Dr Mundae reported that the plaintiff obtained pain relief medication. He said it was his opinion that the plaintiff’s condition had become chronic. He thought him unlikely to improve anymore and that his injury was unlikely to deteriorate any further. He said he was unfit to work.
31 Mr Brian Barrett, orthopaedic surgeon, saw the plaintiff at the request of Dr Mundae. In October 2004, it was his view that the plaintiff had sustained, in the course of his employment on 22 October 2002, a rupture involving the L4- 5 lumbar disc and that he had developed a sudden attack of low-back pain and severe right L5 root sciatica. He said that the plaintiff was considerably depressed and apprehensive, which was colouring his attitude to his injury and his now chronic disability. He thought it was likely that he may require appropriate operative treatment to fuse the lower lumbar ruptured disc rendering it a non-weight bearing structure. He said that ruptured discs have no power of healing or repair and otherwise the plaintiff’s symptoms were likely to continue into the foreseeable future.
32 Mr Brighton-Knight, an orthopaedic surgeon, reported in March 2007. His diagnosis was that the plaintiff had mechanical back pain which was caused by disruption of the L4-5 invertebral disc. The basis of his diagnosis was the MRI findings of disc dehydration and degenerative changes concordant pain stimulation on a provocative discogram, the pain reproduced was identical to the patient’s normal pain and occurred at the degenerative level as seen on the MRI scan.
33 It was his opinion that the injury sustained in 2002 would have stabilised, however, he said subsequent disc degeneration is a lifelong process that is never complete. He did not think the plaintiff was a good surgical candidate and could not see any role for surgery in the future. He said there would be a permanent need for pain management throughout the plaintiff’s life. He said that the plaintiff had been in pain and incapacitated for five years. His age and the fact he was a heavy smoker were factors that indicate he is likely to have a permanent, chronic pain syndrome that cannot improve. He did not expect that he would return to work in any capacity. He thought the plaintiff’s prognosis was for ongoing pain causing permanent disability.
34 The Medical Panel in 2005, pursuant to s.56(6) of the Act, was of the opinion that the plaintiff was suffering from an L4-5 disc prolapse with right L5 nerve root compression, relevant to the claimed injury. It was the Panel’s opinion that the proposed medical service, namely decompression and fusion surgery at the disrupted L4-5 disc level, was appropriate but may not prove to be an adequate medical service for the plaintiff’s injury and/or condition.
35 Mr Peter Kudelka, an orthopaedic surgeon, reported in July of 2009. He said that the plaintiff’s present symptoms were due to his work injury in 2002. He considered the precise physical diagnosis was a mechanical injury to degenerative changes in the lower lumbar region, particularly at L4-5. He considered the injury had led to permanent pain and restricted movement in the lumbosacral region which has not improved despite ceasing work and despite appropriate treatment in the form of analgesic medication, physiotherapy and hydrotherapy. He considered the plaintiff’s back and leg symptoms were related directly to the mechanical injury in the lower lumbar region. He thought the plaintiff was unemployable.
The Defendant’s Medical Evidence
36 Mr Clive Jones, orthopaedic surgeon, examined the plaintiff on 5 August 2004. It was his view that the plaintiff had suffered a minor degenerative protrusion of the L4-5 disc, but he did not believe the plaintiff would respond positively to surgery considering his grossly abnormal presentation and clearly functional behaviour. He considered the plaintiff was greatly exaggerating his disabilities.
37 In February 2005, Mr Jones reviewed the discogram report. He noted that there was some discomfort in injecting the L3-4 annulus. He said that:
“Usually if a disc is symptomatically abnormal, increased pain levels are invariably reported on injecting it. The fact that the pain did not suddenly or significantly increase, suggests that this disc is not the cause of this man’s problem.”
38 He did not think, due to the plaintiff’s grossly abnormal presentation and functional element in his behaviour, that he would respond positively to a spinal fusion recommended by Mr Barrett.
39 Mr David Fish, consultant occupational physician, reported in July 2003. He considered that the plaintiff’s physical findings were out of proportion to the underlying pathology of minor disc degeneration and there were numerous functional signs. He thought he had an assessable permanent impairment but that it was minimal in extent. He did not believe the plaintiff was able to undertake his pre-injury employment but he thought he was fit to return to suitable employment.
40 The plaintiff was examined by Dr Paul Kornan, psychiatrist, in August 2003. He did not believe the plaintiff had an ongoing psychiatric ill-health condition. He thought he was fit for work.
41 The plaintiff was medically examined by Dr N Rose, a psychiatrist, in September 2008. He considered that the plaintiff had suffered a depression condition as a reaction to his physical injuries and chronic pain. This was based on the history he was given by the plaintiff. There is no reference to the plaintiff’s assault charge and subsequent term of imprisonment. He thought the plaintiff was suffering a depressive reaction to his pain and physical injury. The diagnosis was one of an Adjustment Disorder with Depressed Mood.
42 In September 2008, Mr Peter Battlay, orthopaedic surgeon, saw the plaintiff and reported. He reviewed the MRI scan of the lumbar spine of December 2002, the EMG study of 26 August 2003, the x-rays of the lumbar spine in January 2003 and the discography. It was his view that the plaintiff had an L4-5 disc derangement with chronic pain and referred pain to the right leg. He assessed the plaintiff’s impairment of the back at 5 per cent of the whole person. He considered the plaintiff’s impairment had stabilised.
43 The plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, in October 2009. He considered the plaintiff had suffered a disc prolapse on the right side at the L4-5 level which would explain the initial low-back pain and right lower limb pain. He said one could not explain the constant ongoing low- back pain and right limb pain seven years following the episode. He said the natural history of a disc prolapse is that sciatica pain begins to resolve by six to eight weeks post the onset of the prolapse and then improves in time. He said that there is often intermittent low-back pain. He thought that the plaintiff’s history, presentation and clinical examination meant he had developed a Chronic Pain Syndrome and that the constancy and intensity of his ongoing pain were out of proportion to the injury sustained and to his underlying degenerative disc disease. He said the reaction between the psychological and physical is complex. He was adamant that there were significant functional issues in the plaintiff’s presentation. He considered that the majority of the plaintiff’s current presentation related to his psychological condition. He said the clinical examination, the marked restriction of lumbar spine pain and inconsistent straight leg raising signs were features of a Chronic Pain Syndrome. He thought, from an orthopaedic view, the plaintiff could carry out physical work, or at least clerical duties. There was no evidence that the plaintiff had ever performed clerical duties. Further, the plaintiff gave his evidence through an interpreter. He did not impress me as a person who had the ability to perform clerical duties if such work was available. The evidence was that the plaintiff was a process factory worker.
44 The defendant relied upon the reports of Mr Brazenor, a neurosurgeon, who treated the plaintiff at the request of his general practitioner.
45 Mr Brazenor was concerned about the inconsistent findings on examination and it was his view, after considering the CT scan of October 2002 and the MRI of December 2002, that they showed a slight abnormality: a mild extra foraminal bulge of the L4-5 disc on the right side. He accepted that the plaintiff had injured his disc at the L4-5 level, but he considered there was a significant discrepancy between the disability and symptoms which the plaintiff alleged on the one hand, and what little one can find on examination and radiologically on the other. It was his view that the plaintiff had sustained a mild injury to his lumbar disc.
46 In August 2003, it was Mr Brazenor’s view that the plaintiff was still dominated by functional features. He thought he was fit for non-bending, non-lifting duties.
47 In October 2008, Mr Brazenor had viewed a videotape of the job that the plaintiff performed at his employment, and noted that there was no bending or lifting involved, and he certified him back to four hours of work per day. He said the plaintiff was a difficult man to manage with significant functional features.
48 In May 2003, the plaintiff was referred to Dr John Merony, a neurologist, as he complained of faecal urgency and incontinence. He found no pathology to explain the symptoms and commented about the functional presentation.
49 Mr Khan, orthopaedic surgeon, saw the plaintiff at the request of Dr Baglar and referred him to Mr Edward Byrne, a neurosurgeon.
The Law
50 In order to establish the plaintiff’s entitlement to commence proceedings seeking damages for pain and suffering and loss of enjoyment of life, he must establish, on the balance of probabilities, that he has suffered a permanent serious impairment or loss of body function. The test to be applied is subjective, in the sense that it is the effect of the injury which must be considered, but the determination must be objectively made by a comparison with other cases in the range of possible impairments or losses of body functions that may be fairly described at the date of hearing, as being more than significant or marked, and as being at least very considerable.
51 In Mobilio v Balliotis,[1] Brooking JA considered that the word “severe” in paragraph (c) is a word stronger than “serious”. Winneke P agreed.[2]
[1] [1998] 3 VR 833, at 846
[2] at 834-835
52 In considering the nature and extent of the plaintiff’s injuries, it is necessary for me to separate the organic consequences from the psychological or psychiatric in origin. 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: s.134AB(38)(h) of the Act.
The Analysis of Submissions
53 The submission of the defendants was that a number of the medical reports referred to terminology which was suggestive of psychological causes of pain and suffering, the medical position required disentangling and there was insufficient medical evidence for that to be done. In particular, I was referred to the following comments in medical reports, which suggested that there were psychological causes for the pain.
54 Dr Baglar said:
“While he [Dr Brazenor] was recommending a conservative approach for the management of Mr Ibis’ pain, he was also drawing attention to the discrepancy between the detected pathology and the stated level of pain.”
55 Dr Thomas pointed to some “non-organic components” of the plaintiff’s presentation with non-organic signs and gross reduction in range of spinal movement, despite fairly unimpressive radiology.
56 Dr Baglar said, in his report:
“Mr Ibis was convinced that he was permanently and completely disabled to the degree that he was unable to work at all, which I don’t agree with, along with other doctors involved in his care.”
57 Professor Edward Byrne referred to increased functional association of the plaintiff’s pain.
58 Dr Mundae said:
“Mr Ibis is depressed and he should continue with analgesics and anti-
depressants.”
59 Further, Dr Mundae referred the plaintiff to a psychiatrist but there was no medical report from the psychiatrist. In cross-examination, the plaintiff admitted that he was still seeing the psychiatrist and taking medication on a regular basis.
60 The submission of the defendants was that there was no psychiatric evidence from the plaintiff that assisted in disentangling the organic and non-organic parts of the plaintiff’s problems. They suggested it was necessary for me to disentangle or strip away the psychological consequences and that there was an absence of medical evidence which would enable me to disentangle the psychological consequences in the case of a physical injury.
61 In Zivolic v Hella Australia Pty Ltd,[3] Chernov JA stated, at paragraph 19:
“…if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s.134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required. … .”
[3] [2007] VSCA 142
62 In Jayatilake v Toyota Motor Corp Australia Limited,[4] Ashley JA stated, at paragraph 19:
“If a question arises whether, because there is said to be a psychological aspect (say) of pain and suffering, the plaintiff has made out the necessary proof, that question might, as a matter of theory, be resolved by identification of the ‘quantum’ of psychologically based symptoms, and their exclusion from the whole. But it is another thing to say that such an approach is required. A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.”
[4] [2008] VSCA 167
63 It follows that it is not necessary to disentangle or strip away psychological consequences in every application. The consequences should be identified, but it is not necessary to establish the quantum of any supervening psychological overlay. It is not necessary to identify and quantify all potential causes of a consequence. If satisfied that the major contributor of a consequence is physical injury, there is no need to quantify other causes. If physical consequences of injury permit the conclusion that those consequences achieve the serious injury level, there is no need to further disentangle. An assessment of the consequences of physical injury should be made upon the whole of the evidence, not only medical evidence, including possible past reactions to injury.
64 It is relevant that the defendants relied upon two psychiatrists’ reports: one of Dr Kornan of 12 August 2003, who did not think the plaintiff was suffering from any psychiatric disorder; and Dr Rose, of September 2008, who thought the plaintiff was suffering from an Adjustment Disorder with Anxiety and Depression.
65 However, Dr Rose makes no mention of the fact that the plaintiff had been imprisoned for a period of time. This is significant as it would seem that the plaintiff’s general practitioner referred him to a psychiatrist soon after he was released from prison.
66 Counsel for the plaintiff referred me to the report of Dr Kudelka who attempted the disentangling, and said that the precise physical diagnosis is a mechanical injury to degenerative changes in the lower lumbar region, particularly at L4-5. He believed that the injury to the L4-5 disc had led to permanent pain and restricted movements in the lumbo-sacral region which had not improved despite the plaintiff ceasing work and despite appropriate treatment in the form of analgesic medication, physiotherapy and hydrotherapy. Dr Kudelka also said that the plaintiff’s back and leg symptoms were related directly to the mechanical injury in the lower lumbar region.
67 It was the plaintiff’s submission that the evidentiary material supported the proposition that he had a permanent serious impairment to the functioning of his spine. Thus, there was sufficient material for me to conclude, on the balance of probabilities, that the plaintiff has suffered a physically-based impairment. The plaintiff’s counsel referred to the comments by Ashley JA in Jayatilake, at paragraphs 19 and 21. The evidence the plaintiff relied upon was the radiological material and the medical reports. The submission of the plaintiff was that this is a plaintiff who has lumbar invertebral disc damage, either internal disc derangement or prolapse which fits within the third category of injury discussed by Ashley JA at paragraph 143 of Jayatilake. Further, the plaintiff is saying that he has had physical symptoms and that they have continued. I accept that submission. The medical reports of the plaintiff, namely Mr Keng, Mr Barrett and Mr Kudelka, and to an extent those of the defendant, support this. Further, the Medical Panel Report also supports the plaintiff’s submission. Accordingly, I accept that there is sufficient material to support the view that the plaintiff has suffered a physically based impairment.
68 Counsel for the defendants submitted that the plaintiff’s credit was in issue. In particular, he referred to the fact that the plaintiff did not disclose in his first affidavit his prison sentence, despite the fact that he swore his first affidavit a number of months after being released from prison. The plaintiff was cross- examined on this point. It was unclear whether the plaintiff did tell his solicitor at the time of the first affidavit, but it was considered irrelevant. The fact is the matter was disclosed in the second affidavit. I do not think that that affects the plaintiff’s credibility. Likewise, I do not consider the failure of the plaintiff to provide an explanation for changing his solicitor affects his credit. Many litigants change solicitors without explanation. Whilst I accept the plaintiff exaggerated the pain he suffered when providing histories to the doctors and there were inconsistent findings in the examination performed by Mr Brazenor. However, there is sufficient objective evidence, namely the MRI and discography together with the medical evidence of Mr Brian Barrett who considered the plaintiff’s symptoms were likely to continue into the foreseeable future, Mr Brighton-Knight who said the plaintiff’s prognosis was for ongoing pain causing permanent disability, and Mr Peter Kudelka who said the plaintiff had suffered permanent pain which had not improved despite ceasing work and appropriate treatment. I note that it is now 8 years since the work injury and there is no improvement by the plaintiff. I take that into account to enable me to determine that the injury suffered by the plaintiff is severe.
69 The evidence of the plaintiff in his two affidavits went unchallenged. There was no cross-examination about the mechanism of injury and how it occurred. There was no dispute about the pain, loss of enjoyment of life evidence, namely interference with the plaintiff’s work, sleep, emotional state, social life and activities around the home. The plaintiff deposed that he continues to take medication, both anti-depressants and analgesics. I further note that film was not shown, even though Mr Jones, in his report dated 29 August 2004, suggested the plaintiff be put under surveillance. I am aware that the plaintiff was put under surveillance. In view of the fact that no film was shown, I am able to draw the inference that the surveillance material did not support the defendants’ case.
70 I accept that the physical consequences and the restrictions placed on the plaintiff, because of his physical injury, amount to the plaintiff suffering a severe injury for pain and suffering purposes. Whilst there is dispute by the medical practitioners as to whether the plaintiff can return to work and what work he can perform, the fact is he has not worked for the past eight years, his experience has been process and factory work and there is limited work that would be available to him. The question which I am required to consider is whether or not the impairment is such as to constitute an impairment which is more than “significant” or “marked” and is at least “very considerable.”
The Decision
71 I am satisfied that the evidence establishes that the symptoms from which the plaintiff is suffering are “severe”. The consequences to him impact upon nearly every aspect of his life as he knew it before. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. On the basis of the foregoing reasons, I grant the plaintiff leave to bring a proceeding to recover damages for pain and suffering.
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