Koll v Transport Accident Commission
[2011] VCC 1398
•17 November 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-00293
| GARRY MICHAEL KOLL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 14 and 15 November 2011 |
| DATE OF JUDGMENT: | 17 November 2011 |
| CASE MAY BE CITED AS: | Koll v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1398 |
REASONS FOR JUDGMENT
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| SUBJECT: | TRANSPORT ACCIDENT – damages. |
| Catchwords: | Serious injury – impairment to the cervical spine. |
Legislation Cited: Transport Accident Act 1986, s.93(17).
| Judgment: | Leave granted. |
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Moore QC with | Saines Lucas Solicitors |
| Mr K Mueller | Lydiard Street South Ballarat | |
| For the Defendant | Mr P Elliott QC with | Solicitor for the Transport |
| Mr I Gourlay | Accident Commission | |
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages pursuant to the provisions of s.93(17) of the Transport Accident Act 1986 (“the Act”) with respect to injuries sustained by him in a transport accident in which he was involved on 25 February 2006. The injury relied upon by the plaintiff is one to the cervical spine and the impairment of function relied upon is that of the cervical spine, shoulders and arms.
2 In the proceeding, the plaintiff relies upon three affidavits sworn by him on 7 July 2009, 8 February 2010 and 20 June 2011 respectively, together with an affidavit sworn by his wife on 2 March 2010. Both the plaintiff and his wife attended for cross-examination, as did the plaintiff’s general practitioner, Dr Scott Taylor. Otherwise, the parties rely upon medical reports and financial documents tendered by them.
The Plaintiff’s Affidavit Evidence
3 In his first affidavit, the plaintiff referred to a statement made by him dated 7 November 2007,[1] in which he had said:
[1] Plaintiff’s Court Book (“PCB”) 15
•
that at the time of the accident, he was employed by the University of Ballarat as a cleaner, working three hours and seventeen minutes per day, five days a week, and was also undertaking part-time work as a gardener, working up to five to seven hours a day;[2]
•
that following the car accident, he was absent from his cleaning position for a short period of time, that he did not immediately seek medical treatment, but that when his neck injury failed to resolve, he consulted his local general practitioner, Dr Taylor;
•
that he had previously suffered an injury to his low-back whilst working with VicRail and that whilst this low-back condition would play up from time to time given the nature of his cleaning duties, his time off work with respect to the condition was minimal;
•
that he was, at 7 November 2007, performing light duties with the University of Ballarat, but he had been told that this position would not remain open to him;
•
that he continued to do gardening work but that he could only cope with very limited part-time hours;
•
that he previously enjoyed motorbike riding; that he was a keen jogger; that he had been able to paint his house both inside and out, but that all these activities were now beyond him;
•
that his sleeping arrangements were disturbed, by reason of which he often had to sleep in a spare bedroom so as to not disturb his wife.
[2] At the time at which he gave evidence, the plaintiff further explained this statement, saying that he worked up to 5 to 7 hours a day but sometimes less, that this estimate included the travelling time to and from the places in which he was employed to and from the tip and that he was charging only for the gardening work which he undertook and not in respect of travelling time.
4 The content of the plaintiff’s first affidavit dated 7 July 2009 was similar to his statement to which I have referred. In this affidavit, the plaintiff said that:
•
he had continued working in his gardening business but was now reduced to working between six and ten hours per week;
•
he had been retrenched from his position as a cleaner with the University of Ballarat as the University was unable to offer him alternate duties;
•
that in his gardening business, he confined himself to lawn mowing, using a self-propelled lawn mower, doing lighter pruning, Whipper Snipping, and other similar duties which did not involve heavy lifting, bending or twisting of the neck and lifting above shoulder level. He said that he worked at his own pace and took breaks when he needed;
•
that the Transport Accident Commission had previously referred him to a job employment agency, that he had been on the books of the agency for the last two years and that the agency had not been able to find suitable employment for him. He said that he had been unable to find suitable employment himself through his own endeavours.
5 The plaintiff tendered a letter from the Human Resources Department of the University of Ballarat dated 31 January 2008 which confirmed that, having regard to the opinion of his general practitioner, Dr Scott, and Dr David Elder, an occupational physician who had examined the plaintiff on behalf of the Transport Accident Commission, each of whom had opined that the plaintiff was not fit to perform his pre-accident employment, his position with the University was to be terminated.
6 In a supplementary affidavit dated 18 February 2010, the plaintiff said:
•
that having suffered an injury to his lumbar spine whilst working with VicRail, he was provided with light duties of a clerical nature which he had difficulty coping with and which resulted in him developing a stress- related injury, in respect of which he made a worker’s compensation claim and was eventually made redundant;
•
that in December 2005, he had undergone a CT scan of his lumbar spine, following which his doctor had prescribed Mobic for his use;
•
that following the car accident, he initially sought treatment at the St John of God Hospital, where he was prescribed a soft collar;
•
that when his condition did not improve, he sought physiotherapy treatment with a physiotherapist whom he consulted on approximately eighteen occasions but because his neck condition did not resolve, he consulted Dr Taylor, his general practitioner, in June 2006;[3]
•
that he was earning $696.00 per fortnight whilst working with the University of Ballarat as a cleaner and that at the same time he was seeking to build up a business which involved gardening, undertaking odd jobs and cleaning. He described this work as involving mainly gardening which was seasonal and said it included heavier tasks such as removing small trees and shrubs and the use of a medium-sized chain saw. He said that as the result of his accident, he was no longer able to use a chainsaw nor to do a lot of overhead tasks, as these strained his neck. He said he was still able to undertake smaller pruning tasks and that the earnings from his business had dropped from $16,872.00 in the year ending June 2005[4] to $8,894.00 during the 2009 financial year, “because I now work a lot less hours due to my neck injury”;
•
that he had difficulty driving long distances because of headaches and neck pain, he had given up riding his motorcycle and playing racquetball, which he played once a week socially with his wife and son, and that whilst he used to go regularly to the football, he now attended the football only occasionally;
•
that he suffered from disturbed sleep, often waking after three or four hours, and that he had trouble getting back to sleep. He said that sometimes he needed to apply his soft collar for support during the night and to sleep in another room so as to not disturb his wife. He said that he had difficulty walking long distances –
[3] no issue was taken by the defendant as to whether the motor vehicle accident was a cause of the plaintiff’s continuing cervical symptoms; the issue in this case involves rather the extent of those continuing symptoms and the incapacity associated with them.
[4] In fact this figure represents the plaintiff’s gross earnings during the 2005-2006 financial year (see Defendant’s Court Book (“DCB”) 22)
“… usually no more than thirty minutes. I need to watch my step on stairs and uneven ground to avoid jarring my neck. I can no longer go jogging.”
• As at February 2010, he listed the medication he was taking as follows: “I currently take Mobic, anti-inflammatory, 15 milligrams daily; Nortriptyline: 25 milligrams at night; Tramal: 100 milligrams once to twice per day, and Panadeine Forte as required. I also use Dencorub regularly.”
7 In a further supplementary affidavit dated 20 June 2011, the plaintiff said that:
• he consulted Dr Taylor every three months for prescriptions and otherwise if specific problems arise; • in March 2010, he had been referred for pain management, which was supervised by Dr Hogg at the pain management facility operated at Ballarat Health. He said that this treatment helped to reconcile him with his disability. • his current regime of medication involved: “Panadeine Forte … average of about four tablets daily; Mobic: 15 milligrams daily; Nortriptyline, antidepressant, 25 milligrams each night; Tramal: 100 milligrams twice daily; Pariet: 20 milligrams daily.”
• he continued to work between six to ten hours a week, that this varied from week to week and that sometimes this work involved unpaid activities such as servicing his lawn mower or taking rubbish to the tip; • his only source of income was through the operation of his gardening business; • his wife had recently lost her employment by reason of a medical condition which would prevent her from working again; • he would like to work more hours – “… so as to properly provide for the family, however if I attempt to work longer or perform heavy work or work above shoulder height it causes pain to flare-up badly. I do not believe that I am capable to working any more than the present six to ten hours per week.
8 In an affidavit dated 2 March 2010, the plaintiff’s wife, Gloria Koll, deposed that at the time of the accident, the plaintiff was working for the University of Ballarat as a part-time cleaner for about seventeen hours a week and that he also undertook a gardening business which involved doing odd jobs and some cleaning, and that it was his intention to build that business up.
9 She said that her husband occasionally suffered from lower back pain but that she could not recall him taking significant time from work as a result of that pain.
10 She described her husband as being industrious at home prior to the accident, undertaking odd jobs and repairs, such as painting the house, and said that since the accident, he appeared to suffer from neck pain most of the time, that he had been unable to continue his cleaning job with the University and that his ability to work in his gardening business was now “considerably curtailed”.
11 She described the plaintiff as having difficulty driving long distances, and as seldom sleeping through the night.
“He is usually up two or three times to walk about for a short time before returning to bed. He tosses and turns and about twice a week he goes and sleeps in the other bedroom so that I can get a proper night’s sleep.”
The Viva Voce Evidence
The Plaintiff
12 In evidence-in-chief, the plaintiff said that the Timeout Homecare business had commenced in 1997, that at that stage he had sought advice from Mr Neville Brown, an accountant in the firm of Costello Brown McMaster, who had been his primary accountant since that time until his recent retirement, at which time another accountant from the same firm had taken over the preparation of his income tax returns. The plaintiff was asked:
Q: “Did you also seek advice from the firm when you effectively became the
operator of the business?---A: Yes, sir. Q: Who did you seek advice from?--- A: Neville Brown. Q: What was his advice?--- A:
His advice was to leave the situation as it was as it would be too complicated to change the names. We’d have to set up another bank account, apply for another ABN number, so his suggestion was to leave things as it was.”[5]
(sic) [5] Transcript (“T”) 123, L3-10. In this regard, the plaintiff was referring to the fact that his wife was the registered operator of the business.
13 In cross-examination, the plaintiff said:
• that he was able to do light gardening and pruning, as well as window cleaning and that he held a contract to clean a commercial premises at Wrightson’s Research which required him to – “empty small paper bins (sic), lightly wipe down the desks, clean the toilets, vacuum and mop. That is done once a month or once every four weeks, to be precise … and the windows might be every two or three months.”[6]
[6] T 27, L31 – T 28, L1-3, L5-6
• that he did all the work in the business, including the paperwork, and that his wife played no part in the business; • that his charge-out rates varied depending on the work which he undertook, which might involve having a set price fixed or working at an hourly rate. He said that he was able to do lawn mowing, weeding and light pruning and that he was presently working six to ten hours per week which was his full capacity. 14 It was put to the plaintiff that all income generated and expenses incurred through the operation of his business were declared in his wife’s income tax returns, not his own, that his wife regularly claimed a superannuation expense as part of the operating costs of the business which he received the benefit of, and that the sums claimed by his wife in this regard were paid into his superannuation fund. This was not contested.
15 It was further put to the plaintiff that this process was one which was inappropriate, to which the plaintiff replied:
“Well, if that’s what my accountant has done, I presume that’s the correct way to
do it. …
… as far as I'm aware there's nothing illegal or against the Taxation Department
or anything like that. My accountant does this, this is what he does, we trust
him, just like if we went to any other professional or a plumber came to do a jobfor us, we would presume what he is doing is correct. .”[7][7] T 39
16 The plaintiff gave evidence that, whereas in previous years he had received the benefit of superannuation payments in the way I have described from his operation of the business, but had not received wages, in the most recent financial year he had received a wage of $2,103.00. He explained the necessity for this change as being associated with the fact that his wife had lost her job[8] and that in addition to this sum, the plaintiff had, during that financial year, drawn $23,474.00 from his superannuation fund for the same reason.[9]
[8] T 41
[9] T 68
17 The plaintiff said that he was presently working to his maximum capacity, explaining:
“I have tried and I cannot do it. I have put myself through hell to try and keep working. I cannot do any more than what I've done. I've given two hundred per cent to try and keep working, rather than laying down and resigning myself to my injury.”[10]
[10] T 44
18 He said that:
•
his normal charge-out rate was approximately $25.00 an hour for gardening; $30.00 to do a lawn, but that his rates varied depending upon who he was working for.[11] He said that he also worked at a fixed rate on some jobs;
•
the maximum hours he could work involved six to ten hours per week, these constituting the hours taken by him to run the business;[12]
•
he sometimes looked in the paper to see if there was work which he could undertake within the medical restrictions which had been set by his doctors, but he considered that there were no jobs that he was capable of performing. He said:
[11] T 46
[12] In this respect, the plaintiff explained that this included activities such as going to the tip and travelling to various work sites, in respect of which activities he did not charge.
“I’m looking for anything that would [be] within my restrictions and that I
am capable of doing.”[13][13] T 48
19 In this respect, he described his restrictions as involving –
“No heavy lifting, no doing work above my shoulders, no twisting and turning at the neck or lifting my neck back or any quick motion, movement with the arms, and heavy lifting. … . ”[14]
[14] T 49
20 The plaintiff said:
•
that if he was offered a job which accommodated these restrictions, he would give up his gardening job. When it was put that this might enable him to work longer hours, he commented:
“Well, it would be an untried fact.”[15]
[15] T 50
• that he attended physiotherapy once a month, which he paid for himself; •
that he received some cash payments in the course of his business which did not go through the records if they were used to meet expenses, such as tips fees;
•
that after the car accident, he had approximately five days off from his work at the University, at which time he had undertaken his normal cleaning duties, in respect of which he commented:
A: “I was doing my normal job. I was struggling along, yes, sir. Q: And you kept on working there doing the duties that you’ve
described, is that correct?---A: Yes, sir. Q: And you wanted to stay on there?--- A: At the University, yes, sir, yes?--- Q: Yes. … Q:
But you felt yourself that you could have stayed on doing the hours
there doing the work that you were doing?---A: Not doing the work, no, because that’s why I sought medical advice
and they put me on modified duties.”[16][16] T54-55
21 In this regard, the plaintiff said that carrying out his cleaning duties for the University after the accident was a struggle for him and that he developed a burning sensation –
“… and I think I had what they call radiculopathy or something to that effect I
think it’s called.”[17][17] T 55-56
22 The plaintiff was cross examined as to his prior work history. He said:
• that having injured his back with the railways, he was employed as a clerical assistant; that he eventually went off on stress and accepted a redundancy; • that since 1997, he had never returned to full-time work. He said that he could not recall specifically whether he had applied for full-time work and that having obtained his employment with the University, his wife having found a full-time position, he started doing the mowing and garden maintenance business;[18] • that in the financial year ending 2010, the gross earnings from the operation of the business were $7,907.00 and in the most recent financial year this had increased to $11,098.00. When the plaintiff was asked as to the reason for this increase, he explained: [18] T 61-63
“Because of increases in my pricing, put my pricing up. One of the clients, or a couple of the clients wanted me to do a bit extra for them … And in an endeavour to keep those clients I tried to accommodate it which pushed my medication up.”[19]
[19] T 67
•
that as the result of his back injury, the plaintiff had made use of a belt to support his back;
•
that in December 2005, he had undergone physiotherapy treatment and had been prescribed anti-inflammatories, and that whilst his back had enabled him to undertake work which involved bending, he avoided heavy lifting;
•
that he now went to the football only four times a year, whereas before his accident he went “all the time”;
•
that he had given up riding his motorcycle and playing racquetball, which he would do a couple of times a month, and that on a recent trip to Queensland with his wife, he was required to share the driving with her.
23 The plaintiff was cross-examined as to the hours during which he worked in self-employment prior to the accident. It was put to the plaintiff that on the basis of a charge-out rate of $25 per hour and a gross earnings of $16,872.00 during the 2005-2006 financial year, he could not have been working on average for twenty odd hours a week, and that it was more likely that he was working fourteen hours per week, to which the plaintiff responded:
“Well it could as I've already explained Your Honour, there are often additional things that you have to do driving from A to B as we've already stated, going to the tip, other things, when I've said the hours and I've said this quite clearly, the rough hours, it involves running the business, the same as the six to ten hours.”[20]
[20] It is clear that the plaintiff was referring to the fact that the evidence he gave as to the hours during which he conducted his business both before the accident and after the accident was inclusive of the hours which were taken up with activities that he did not charge for, including driving to and from sites, travelling to the tip and bookwork – T 117-119
24 In re-examination, the plaintiff demonstrated the presence of a severe restriction of movement in his cervical spine. He said:
• that he had to be very careful when looking up; •
that his back injury had not interfered with his capacity to work as a cleaner with the University but he had to take care with his back whilst undertaking his gardening work;
•
that before the motor vehicle accident, he had been seeking to build up his gardening business and his cleaning business;
•
that he tendered for business with a number of schools and was advertising in the Yellow Pages;
•
that the condition of his neck was aggravated by activities such as tilting or twisting or movement with his arms above his head and that it could be aggravated when sleeping. He said that his condition was such that:
“It could happen a couple of times a week where you may have to move
things around, because of that.”[21]
[21] T 84. In this respect, the plaintiff was referring to his work commitments.
•
that he was not in a physical state to be able to guarantee that he could provide an employer with reliable and regular attendance;
•
that he relied upon medication in the form of Panadeine Forte, Mobic and Nortriptyline to control his symptoms and Pariet “to counteract the effect the other tablets are having on my stomach”;
•
that he modified the way he undertook his gardening work to avoid placing pressure on his neck;
•
that being self-employed enabled him to modify his hours so as to suit his capabilities;[22]
•
that if he had the ability to work longer hours and earn more money, he would not have called upon his superannuation during the last financial year.
[22] T 110
The Viva Voce Evidence of Gloria Koll
25 Gloria Koll, the plaintiff’s wife, gave evidence that she had ceased working for Centrelink on 27 May 2011 for health reasons.
26 Mrs Koll was cross-examined as to the accounting practice which had been employed in the preparation of her taxation returns which involved the attribution to her of both the income and the expenses associated with the work undertaken by her husband in the garden maintenance and cleaning business of which she was the registered owner and in particular, the claim by the business of superannuation expenses. It was put that this structure constituted a tax sham. Mrs Koll denied that she ever considered this process to involve a tax sham, stating:
“As I said, I'm - I trusted the accountant to - I haven't - I haven't seen any reason for it to be changed according to the - to what the accountant seems to think that it's okay. I - I would have assumed that over the years the accountant would have said something to me or would have suggested that it be changed. I've trusted the accountant, I've allowed him to - to have run it this way.”[23]
[23] T 131-132
The Medical Evidence Relied on by the Plaintiff
27 Dr Scott Taylor is the plaintiff’s treating general practitioner. In a series of reports between 20 June 2007 and 14 February 2011, Dr Taylor expressed the following opinions:
•
The plaintiff’s condition involved the aggravation of asymptomatic degenerative changes in his cervical spine by the motor vehicle accident, leading to symptoms of neck pain radiating into his left shoulder and left arm.
•
That initially whilst the plaintiff complained of persisting neck pain radiating into his left shoulder and arm, he had been, as at 20 June 2007, able to continue with his work as a cleaner.[24]
•
That on 1 August 2008, the plaintiff underwent medial branch blocks to the facet joints of his cervical spine. However, these increased the level of his pain and this treatment was abandoned.
•
That the plaintiff was fit for work which involved no work above shoulder height, no lifting greater than 5 kilograms, no repetitive lifting and no repetitive twisting or bending of his back. Within these parameters, the plaintiff –
[24] Report dated 20 June 2007
(i) “… may be able to work up to 20 hours per week but probably not
full-time and in practice I think it would be highly unlikely that he
would be able to find a job which meets these restrictions and feel
(sic) that he is more likely only going to be able to continue in his
current work. Before his neck injury he was working 17 hours per
week cleaning at the Ballarat University and 20 to 23 hours per week
gardening and lawn mowing. … He currently continues to mow
lawns and does gardening 6 to 10 hours per week. … I therefore
feel that his capacity for work has been significantly reduced as adirect result of his injury.[25]
[25] Report dated 18 June 2009
(ii) Since my last report dated 18 June 2009, I have seen him on three
further occasions. He has largely remained unchanged but when
seen on 28 September 2009, he had an exacerbation of his neck… Previously he had been managing 6 to 10 hours of lawn mowing
per week but clearly as he tried to increase this amount of work he
aggravated his neck injury with subsequent increased pain in his
neck and down his left arm.[26][26] Report dated 1 September 2009
(iii) Garry’s condition has essentially remained unchanged. He
currently works 6 to 10 hours per week with a mixture of lawn
mowing and gardening. He still needs regular analgesia and
physiotherapy to maintain this amount of activity. … His capacity for
work is currently at the maximum for his current job. … Before his
neck and shoulder injury he was working 17 hours per week cleaning
at Ballarat University and 20 to 23 hours per week gardening and
lawn mowing. This has been reduced to 6 to 10 hours per week
gardening and lawn mowing. There has therefore been a significant
reduction in his capacity for work as a direct result of his neck andshoulder injuries.”[27]
[27] Report dated 14 February 2011
The Viva Voce Medical Evidence of Dr Taylor
28 Dr Taylor gave evidence that the regularity with which he now saw the plaintiff fluctuated between one and three months, depending upon his level of symptoms.
29 That as time passed, the plaintiff was having greater difficulty managing his symptoms, that he was presently working between six and ten hours per week and that –
“… because of continued pain and he tries to get a balance between continuing working and using enough medication to control his pain. He did have a period of time where he had about five weeks off and his pain level dropped and he felt a lot better. He didn't need as much medication but he felt that he wanted to keep trying because he enjoys his work and he wants to be a - continue to be an active member of society.”[28]
[28] T 94
30 Dr Taylor said that whilst he was aware that the plaintiff had undergone a CT scan in December 2005 with respect to his back and that he had prescribed Mobic anti-inflammatories for the plaintiff’s use for a period of time for this condition, he said however that he was not aware that the plaintiff had undergone physiotherapy treatment for the condition and that the plaintiff had not consulted him again for back pain, commenting; “so I presume it settled down”.
31 Dr Taylor said that the plaintiff presently presented with mechanical neck pain and that his position in 2009, that the plaintiff should seek work which involved “no work above shoulder height, no lifting greater than 5 kilograms, no repetitive lifting and no repetitive twisting or bending of his neck” continued to apply as at the present time. He described Tramal as being prescribed to the plaintiff for pain relief; that Mobic was prescribed for pain relief and Nortriptyline was being prescribed for the plaintiff’s chronic pain but it was also an anti-depressant that helped with sleep. He said that he fixed the plaintiff’s present capacity as being only ten hours work per week –
“Because over a long period of time he’s tried to increase or vary the number of hours and each time he’s gone past that, it’s resulted in an increased use of medication and because of increased pain.”[29]
[29] T 101-102
32 Dr Taylor agreed that the plaintiff’s history had been one which was consistent with the presence of symptoms which affected his reliability as a potential employee. He said his impression of the plaintiff was that he was of slightly below average intelligence in his ability to learn new skills and that he was therefore best suited to manual labouring work which was likely to aggravate his neck pain. He described the plaintiff in the following terms:
“… I think my opinion of Gary Koll is that he's a genuine fellow, who wants to keep pushing and pushing and it may be that - an example of this is, after the accident, he delayed coming to see me because he just was hoping it would settle down and he kept pushing and pushing but in fact it just began to deteriorate, to the point that he needed to seek help and that's the - that's his nature. He will keep trying until he can't.”[30]
[30] T 104
33 Dr Taylor confirmed the currency of the opinion which he had previously expressed in his report of June 2009, that even should a job be found which satisfied the restriction which he had set as being appropriate for the work which the plaintiff was fit to undertake, he was of the opinion that the plaintiff may be able to undertake duties of that nature for up to twenty hours a week, but that he considered it highly unlikely that the plaintiff would find a job which met these restrictions, it being probable in these circumstances that he would continue in his current work.
The Balance of the Medical Reports
34 Mr David Wallace, neurosurgeon, assessed the plaintiff at the referral of Dr Taylor in January 2007, at which time he referred the plaintiff for an MRI scan. On reviewing that scan on 6 February 2007, Mr Wallace advised the plaintiff that he should modify the cervical collar which he was wearing, and commented:
“If things do not settle he has two surgical options, namely a posterior decompression of the C6 and possibly C7 nerve roots, which would be my personal preference, or an anterior cervical discectomy and fusion.”[31]
[31] Report dated 14 February 2007
35 In a report dated 19 September 2007, Mr Wallace commented:
“Initially his main problem was in the left arm down to the elbow but it now affects
both shoulders, though there is very little involvement of the right arm.”
36 Mr Wallace documented the history given to him by the plaintiff of various activities which he undertook in the course of his work as a cleaner and as a gardener which aggravated his symptoms. He also obtained a history from the plaintiff that his sleeping –
“… is bad and he tends to disturb his wife with his broken sleep and has been banished to the spare room two nights per week so as not to disturb his wife’s sleep.”
37 This history tallies well with the evidence by both the plaintiff and his wife as to the effect of the plaintiff’s symptoms upon his ability to sleep and accordingly, supports the plaintiff’s reliability as an historian on this issue.
38 On reviewing the plaintiff’s x-rays, Mr Wallace commented:
“His plain x-rays shows marked narrowing at C5/6 and C6/7 disc spaces with vary obvious foraminal encroachment more obvious on the right side than the left side. His MRI scan shows marked cord compression at C5-6 again more on the right side by anterior osteophytes”;
and opined:
“There is a dilemma here as to whether if something were done to help that it be done from in front with an anterior cervical discectomy and fusion at two levels or behind with a cervical foramenotomy (sic) and nerve root decompression of the left C6 and C7 nerve roots. However the radicular component of his problem is poorly defined and I would not be pushing very hard for a foraminotomy when his major complaint is his neck pain, headaches and shoulder pains bilaterally which might respond better to a double level fusion. Accordingly I am going to ask him to see Professor Peter Teddy, a colleague of mine at The Royal Melbourne Hospital who has vast experience in anterior cervical disc surgery.”[32]
[32] Report dated 19 September 2007 .
39 In a report dated 7 February 2008, Professor Peter Teddy, neurosurgeon, noted the plaintiff to be presenting wearing a neck collar, with neck flexion being reduced by about 50 per cent and his neck being generally stiff. He opined:
“Given that his symptoms are almost inclusively in the neck and that he had no abnormal neurology, I felt he would not be helped by a decompression (either anterior or posterior) of his C6 or C7 nerve roots, this having been the question posed by Mr Wallace at the time of his referral. I did not think that cervical fusion would help his neck pain. I suggested continued conservative management and follow up by Mr Wallace in Ballarat. I proposed that he might be helped by facet joint injections to his neck carried out under CT or image intensification guidance.”
40 Dr Malcolm Hogg, who holds the position of Staff Specialist, Anaesthesia and Pain Management at The Royal Melbourne Hospital Intervention Pain Clinic, in a report dated 1 August 2008, states that the plaintiff presented at the Pain Clinic on 31 July 2008 and underwent diagnostic therapeutic medial branch blocks of his cervical facet joints on 1 August 2008. He commented:
“It would appear that he has fairly widespread cervical spine degeneration. It is unclear how much a component of this is due to the whiplash type injury associated with the motor vehicle accident. It would appear to be asymptomatic canal stenosis. Hence much of the pain relates to axial pain from the disc and or facet joints in both the upper region on the right and the changes seen at C5- 6 and C6-7 on the left. For this reason he proceeded two diagnostic blocks under sedation at our city campus in association with Dr Peter Courtney of the right C2, C3 and C4 medial branches and the left C4, C5 and C6.
From a pain management perspective there may be a role for low-dose antineuropathic pain medication including Nortriptyline, 10 mg nocte and increasing as tolerated to 25 mg nocte. This is targeting a potential degree of neural up-regulation associated with persistent pain, but there did not appear to be any radicular component at his current presentation, nor any symptoms of active cervical myelopathy.”
41 In a report dated 1 July 2009, Dr Hogg states that he had reviewed the plaintiff on that day at the Ballarat Base Hospital, commenting:
“We went over the principles again, which is primarily patient goal related with a
management rather than cure focus.”
42 When reviewed on 10 October 2009, Dr Hogg obtained a history from the plaintiff that he was awaiting –
“… clarification regarding his legal claim for serious injury. He has some ongoing concerns regarding his loss of employment potential through this, although has noted that he is trying to do small amounts of work, although he feels this is under some physical and emotional duress.”
43 On examination, he described the plaintiff as being slightly improved, not wearing a soft collar and presenting with a restricted range of motion of the cervical spine primarily on extension. He commented:
“I tried to reassure Garry, we recognise that there is some ongoing somatic focus in the settling of medico-legal issues. He does appear to have made some gains however and is functioning reasonably and there has been no escalation of his medication requirements. As mentioned previously, there is a risk that the canal stenosis will progress and so regular surveillance for worsening of upper limb symptoms and or signs will be required and in this vein I have offered a follow up with myself in six months.”
44 On 7 April 2010, Dr Hogg obtained a history that the plaintiff was doing a small amount of work, approximately six to eight hours per week, in a light gardening role and experienced some pain exacerbation associated with the heavier components of his work. He commented:
“From a pain perspective, Garry seems similar with headache, neck pain and some restriction in movement. Despite this he is using a soft collar less and does not have any clear radicular component in the upper limbs or symptoms of myelopathy in the lower limbs. … Medications are similar at Meloxicem, 15 mg daily, Nortriptyline, 25 nocte, Tramadol slow release, 100 b.d., Panadeine Forte approximately four times per week.
I have encouraged Garry with ongoing compliance with his pain program …. I am encouraged by some functional gains with Garry despite ongoing pain complaints.”
45 In a report dated 15 December 2010, Dr Hogg commented that the plaintiff was more psychologically settled and obtained a history that he was able to do his light gardening work up to approximately ten hours per week, but he found that his pain was exacerbated at this level. He opined:
“As mentioned previously, there is a risk that there can be a progression of his canal stenosis with his discogenic change but it has now been several years and has been stable so I am happy to see him on an intermittent basis. I have encouraged him in his self-management strategies. He feels he gets benefit from physiotherapy between once a month and once a fortnight so I would appreciate if TAC reviewed their funding for such. Otherwise whilst I am happy to see him on a yearly basis I do not see an urgent need at the current time. Thank you for your ongoing care. I would make no changes to his medications in the intermediate longer term perspective.”
46 Dr Gary Capes, an industrial physician, examined the plaintiff on 30 September 2007 and again on 4 September 2009. In his first report, Dr Capes opined that the motor vehicle accident had “aggravated and possibly accelerated” the plaintiff’s cervical disc degenerative disease. That whilst the plaintiff had a capacity to work, this necessarily involved severe restrictions such that he could –
“… not do work with the neck extended, nor held static for any length of time as on a computer. He could not do over the shoulder work or work with the head down low. He would need to avoid repetitive flexion and repetitive twisting of the neck. He should avoid work with any vibratory consequences and any to and fro work such as using a heavy polisher.
Mr Koll noted that some days if he does overextend his neck he pays for it the next day. Thus I think he could probably work four hours per day three days per week.”
47 In a further report dated 24 September 2009, Dr Capes maintained the diagnosis he had previously expressed, commenting that the plaintiff would not improve with conservative therapy, and opined that the plaintiff had no capacity for his pre-injury duties but that he possessed the capacity for light part-time work with the restrictions outlined in his previous report and in those suitable duties, Dr Capes opined that the plaintiff would be able to work “three hours a day, Monday, Wednesday and Friday.
48 In a report dated 23 March 2009, Mr Stanley Schofield, an orthopaedic surgeon, opined that the motor vehicle accident of 25 January 2006 had caused a significant aggravation of degenerative change present in the plaintiff’s cervical spine; that the accident had caused a permanent impairment in the plaintiff’s work capacity and lifestyle, with the result that the plaintiff had been unable to resume his pre-injury occupation and was restricted in the amount of gardening he was able to do.
49 In a report dated 17 March 2011, Mr Thomas Kossman, an orthopaedic surgeon with a Master of Health and Medical Law, opined that as the result of the plaintiff’s motor vehicle accident, the plaintiff had suffered an injury to his cervical spine and that he presented with documented changes in his cervical spine, in particular, at the C5 to C7 levels where degenerative changes were seen. Mr Kossman described the presence of severe canal stenosis at those levels and opined:
“The injuries are stable at the moment from an organic point of view. However, I cannot exclude that Mr Koll may have to undergo surgery if his symptoms are increasing, in particular if he develops distinct neurology. At present I do not except any significant improvement of the described condition. … In my opinion, Mr Koll has no capacity for his pre-injury employment, in particular as a cleaner. In general Mr Koll should avoid heavy strenuous labour work. He has already adapted to his incapacity by performing his work as a gardener with tools which are self propelled.”
50 In a report dated 28 November 2007, Dr David Elder, an occupational physician, opined that the plaintiff presented in a straightforward manner with muscle spasm in the erector spinae and scalene muscles and tenderness predominantly at the C5-6 and C6-7 levels. He opined that the plaintiff had two-level disc pathology with a history consistent with a radiculopathy in the past. He opined:
•
“I do not believe the worker can return to work to his pre-accident employment.
• I believe that this restriction will be permanent … Taking account of his past training, skills and experience in administrative roles, I would suggest it is likely that he could return to work in his pre-accident hours in this type of role.”
51 In a further report dated 11 December 2007, Dr Elder expanded upon his previous opinion, commenting that he was not aware of any psychosocial issues impacting upon the plaintiff’s presentation, that the plaintiff’s symptoms had an organic basis which was attributable to the transport accident and that the plaintiff’s current levels of medication were appropriate.
52 Mr John Hart, a clinical Associate Professor of surgery, examined the plaintiff at the request of the defendant on 16 December 2008. The purpose of Mr Hart’s assessment was to perform an impairment assessment pursuant to the fourth edition of the AMA Guides to the evaluation of permanent impairment and for this reason the comments in his report are largely of little assistance to the issues which I am required to determine. I note however that Professor Hart expressed the opinion that it was –
“… likely that Mr Koll will continue to suffer from persistent neck pain and have
limited movement”
and continued:
“Mr Koll continued working as a cleaner for some time following the accident on modified duties, but eventually there were no longer any modified duties available at his place of employment and he has not been able to return to salaried employment since. He still conducts his own business of home maintenance in a limited fashion. I think it is unlikely that Mr Koll will be able to return to the workforce in his original role as a cleaner but could return to the modified duties he was performing when terminated. He is to conduct his home maintenance business and may be able to expand that in the future. … I consider there was some voluntary restriction of movement in the cervical spine.”
53 Mr Geoffrey L Klug, neurosurgeon, examined the plaintiff on 19 December 2008 and opined:
• that the plaintiff presented with symptomatic cervical spondylosis; •
that he accepted the plaintiff’s complaints of neck pain with restricted movement with some referral of pain to each upper limb were consistent with the changes noted on the various imaging studies which Mr Klug had examined;
•
that the accident was responsible for an aggravation of the plaintiff’s underlying condition, leading to the emergence of symptoms which had persisted “with some severity up until the present time”;
•
that whilst the plaintiff presented with a minor inconsistency between involuntary and voluntary movements, overall he appeared to have a genuine restriction;
•
that the plaintiff’s prognosis was guarded, it being likely that his symptoms would persist with waxing and waning on an indefinite basis;
•
that the plaintiff presented with genuine significant symptoms related to his condition and that his condition would interfere with his ability to undertake physical types of employment, particularly where he was required to work at above shoulder height or was required to hold his neck in unusual positions for extended periods of time;
•
that the plaintiff presented with genuine ongoing symptoms such as would have some adverse affect on both his domestic and leisure activities.
54 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 3 May 2011. Mr Dooley obtained from the plaintiff a history that he employed Tramal, Mobic, Panadeine Forte and Nurofen for his pain; that he took sedative medication at night and that he currently worked for between six and ten hours per week in his gardening job. Mr Dooley opined that the plaintiff had suffered an aggravation of underlying degenerative disc disease which was present in his cervical spine and that his present symptoms were caused by that condition and were contributed to by a psychological reaction to his pain. He opined that the plaintiff was unfit to carry out regular heavy physical work or work that involved a lot of activity at or above head level, and that he would have difficulty with domestic duties that involved a lot of activity at or above shoulder level. He opined that the plaintiff would be unfit to play sport such as racquetball or to engage in heavy impact leisure pursuits. He made no comment as to the plaintiff’s capacity for employment and I consider it relevant, having regard to the timing of his report, namely some twelve months after the previous trial in this proceeding, that he did not take issue with the fact that the history given to him by the plaintiff as to his current working hours did not represent his true capacity.
55 Whilst there is some reference within the medical reports as to the presence of some voluntary restriction in the plaintiff’s cervical movements, I am of the opinion that the overwhelming picture one gains from reading the medical reports in this case is that the plaintiff has suffered an exacerbation of asymptomatic degenerative changes which were present in his cervical spine by reason of his involvement in the motor vehicle accident, and that this exacerbation has been responsible for the initiation initially of very severe symptoms involving radiculopathy and that whilst this injury has to some extent stabilised to a chronic state which is being managed by significant levels of medication as described by the plaintiff in his most recent affidavit, there remains the prospect of the condition deteriorating.
Findings
56 It was put on behalf of the defendant that the issue as to whether the plaintiff has sustained a “serious injury” within the meaning of that term as employed by the Act turned largely upon whether he was truly exercising his retained working capacity. Essentially, it was put that if the pecuniary loss consequences to the plaintiff of the injury to his cervical spine were excluded, the remaining consequences could not constitute a “serious injury” as defined.
57 Whilst I accept that in the circumstances of the present case, the consequences of the injury which the plaintiff has sustained to his cervical spine upon his capacity to work loom large upon the issue as to whether he has sustained a “serious injury”, the following issues, which have not been challenged by the defendant, should not be ignored, namely:
(i)
that the plaintiff suffers from levels of pain which are significant enough to require him to ingest large amounts of painkilling medication (there being no issue taken as to the plaintiff’s statement in his affidavit of 20 June 2011 that he is required to ingest Panadeine Forte - an average of four tablets daily; Mobic, an anti-inflammatory - 15 milligrams daily; Nortriptyline - 25 milligrams each night; Tramal - 100 milligrams twice daily);
(ii)
that the plaintiff’s symptoms are such that they cause a severe interference with his sleep, such that he often wakes after three or four hours of sleep and has trouble getting back to sleep;
(iii)
that the plaintiff has had to give up activities such as running or walking for long distances;
(iv)
that the plaintiff’s symptoms remain such that now some five years after his motor vehicle accident, he continues to have intermittent recourse to the use of a soft cervical collar;
(v)
that whilst prior to the accident the plaintiff was generally able to undertake the full gamut of activities involved in his gardening and cleaning business, which involved performing unrestricted duties in the course of his employment with the University of Ballarat as a cleaner and also in his self-employment as a gardener in which he undertook heavy physical tasks such as those deposed by him in paragraph 14 of his affidavit dated 18 February 2010, he is now permanently unfit for that type of activity.
58 In my opinion, the latter factor, when considered alone, constitutes a significant loss to a person whose history of employment is in manual labour, and when these factors are considered, even in absence of any pecuniary disadvantage associated with the plaintiff’s injury, they have the effect of occasioning a very significant adverse impact upon the quality of the plaintiff’s life.
59 Further, the medical evidence satisfies me that that impact will continue for the foreseeable future.[33] This is particularly so in the context of the opinions of the plaintiff’s treating doctors, Dr Taylor and Dr Hogg, whose position is supported by Mr Schofield, that the plaintiff’s condition may well deteriorate.
[33] See the opinion of Mr Klug that the plaintiff’s condition is largely stabilised, which is supported by the opinion of Mr Dooley and Mr Kossman
60 It was put on behalf of the defendant that I should be reluctant to accept the plaintiff’s evidence that the present capacity which he is exercising whilst working represents his true capacity.
61 In this respect, it is put that the plaintiff was an unimpressive witness who had a tendency to prevaricate and argue, that he was not forthcoming in his evidence as to his rate of earnings and apparent inconsistencies arose when attempting to reconcile the hours which he worked with his charge-out rates and the gross level of his earnings, both before and after the accident.
62 Whilst I accept that the plaintiff at times had a tendency to be argumentative, I consider that due allowance needs to be taken for the fact that the plaintiff has had to endure a re-trial and that his bone fides and veracity have been challenged on two separate occasions. When this factor is taken into account, I am of the opinion that little turns upon the criticism made by the defendant of the plaintiff’s attitude as he gave his evidence.
63 More particularly, having considered the plaintiff’s evidence in its totality, I found his evidence as to his accident-related incapacity to be well supported by the medical evidence generally and I am satisfied that the plaintiff was a truthful and generally reliable witness.
64 Whilst a considerable issue was taken on behalf of the defendant as to the approach taken to the preparation of the profit and loss statement relevant to the work undertaken by the plaintiff in the course of the business registered to his wife, when account is taken of the fact that:
• Firstly, that two consecutive accountants have maintained the accounting approach in respect of which the defendant is critical; • Secondly, that both the plaintiff and his wife have given sworn evidence that they relied upon the expertise of their accountants in this regard; • Thirdly, that what appears on the face of it to be a very questionable accounting practice, was one which provided the plaintiff and his wife with minimal, if any, tax advantages, I do not regard this issue as one which should significantly influence my assessment as to the effect of the plaintiff’s injury upon his level of income or earning capacity or that it should cause me not to accept both the evidence of the plaintiff and his wife upon that issue, or generally, in the circumstances in which the medical evidence provides strong support for the presence of a continuing and permanent incapacity in this regard.
65 Whilst the defendant asserts that I should not be satisfied on the balance of probabilities that the plaintiff is currently exercising his true capacity for work, I am of the opinion that the plaintiff’s evidence upon this issue, when considered in the context of the medical evidence, presents a compelling case in support of the proposition that the effect of the plaintiff’s injury to his cervical spine has been to occasion a very significant diminution in his capacity to earn income. In this respect, I make the following findings:
(i)
Firstly, I am satisfied that the injury to the plaintiff’s cervical spine was responsible for the plaintiff losing the position he held as a cleaner at the University of Ballarat. The letter from the University dated 31 January 2008 clearly establishes this position, that the plaintiff’s incapacity to undertake the activities involved in that employment was confirmed by Dr Taylor and Dr David Elder.[34]
(ii)
Secondly, the fact that the plaintiff continues to do the limited cleaning involved in his contract with Wrightson’s, when considered in the context that the work involves the plaintiff attending the premises only once a month, in my opinion, provides no persuasive evidence in support of the proposition that the plaintiff retains a capacity to undertake cleaning work on a regular basis. That the plaintiff has lost this capacity is generally accepted by each medical practitioner who had opined in this matter.
(iii)
Thirdly, in assessing the consequences of the plaintiff’s lost capacity to earn income by reason of the injury to his cervical spine, I am of the opinion that it is appropriate to approach that assessment taking into account, firstly, the income available to the plaintiff in his employment with the University of Ballarat, which I have found has been lost as the direct consequence of the injury; and, secondly, the earnings generated through the work undertaken by the plaintiff in the Time Out Homecare business, notwithstanding the fact that the income from that business is attributed to the plaintiff’s wife.
[34] Dr Elder having assessed the plaintiff on behalf of the Transport Accident Commission, in my opinion, makes the position that there was some other cause for the plaintiff’s loss of that employment unarguable. It follows that I accept the plaintiff’s evidence that, although he had been able to continue to perform his duties between the date of the accident and late 2007 when temporary alternative light duties were made available to him by the University, but that doing so was a struggle for him, this in turn, in my opinion, speaks to his credit as someone seeking to minimise the effects of the accident upon him.
When one considers the pattern of yearly gross earnings of the business, it is clear that, other than for the most recent financial year, the gross earnings for the business have significantly decreased from their high point during the 2005-2006 financial year of $16,872.00, to their low point during the 2009-2010 financial year of $7,907.00.
Whilst in the most recent financial year the gross earnings increased to $11,098.00, that figure is still significantly less than the earnings in the 2005-2006 financial year, and I accept the plaintiff’s evidence that this increase was generated as the result of a combination of an increase in fees and an increase in activity on his part which came at a cost to him in terms of the exacerbation of his symptoms and the need on his part to make use of increased medication, and that for this reason it is unlikely to be maintained.
I am of the opinion that these figures provide the most reliable guide to the present capacity of the plaintiff to undertake the work required in the business and that they support the plaintiff’s position that his capacity for that work has been significantly reduced by reason of his transport accident related injury.
In my opinion, whilst other approaches might be employed for the purpose of assessing the effect of the injury upon the plaintiff’s cervical spine upon his capacity to undertake the tasks required in the business; such as, for example, charting the payments of superannuation which have been claimed by the business and applied to the plaintiff or the income paid to him through the operation of the business,[35] these approaches suffer from the vice that they are artificial as they really involve book entries and the better approach is the one which I have employed, namely, to take into account only the earnings which are generated on a gross basis from the activities which the plaintiff undertakes in the operation of the business, having regard to the fact that the sole income from the business is generated by reason of the plaintiff’s labour.
(iv) Fourthly, I am satisfied that having regard to the incapacity of the plaintiff’s wife and the loss of her employment, the family’s financial position has been substantially compromised, this being attested to by the fact that the plaintiff in the most recent financial year has, for the first time, been required to call upon his superannuation fund to make a distribution to him. In these circumstances, it is clear that there is a significant motivation for the plaintiff to maximise the earnings which he produces from the operation of the business. Whilst I am satisfied that this may be one other reason why the gross earnings of the business through the plaintiff’s labour have increased during the most recent financial year, I am satisfied that it is probable that this trend is not maintainable, having regard to the evidence which I accept as to the consequences of that trend upon the plaintiff. Further, in my opinion, the fact that in these circumstances the plaintiff’s income remains well below that which he generated prior to the transport accident when the income he derived from his position with the Ballarat University is also taken into account, provides a true measure of the adverse impact of the accident upon the plaintiff’s working capacity.
(v) Fifthly, in assessing the plaintiff’s retained capacity for employment and the effects of that capacity on the injury to his cervical spine, I note that Dr Taylor, in June 2009, and Dr Capes, in September 2009, expressed strikingly similar positions as to the plaintiff’s capacity to work at a maximum of between nine and ten hours per week in light, suitable duties. In this respect, I am satisfied that the work which the plaintiff is presently undertaking meets that description, in that although there are aspects of that work which aggravate the plaintiff’s symptoms and in that sense the work is not ideal, this effect is counterbalanced by the ability of the plaintiff to pace himself in that work. Whilst these assessments as to the plaintiff’s capacity for work were made by Dr Taylor and Dr Capes in 2009, I accept the evidence of Dr Taylor that there has been no significant alteration in the plaintiff’s capacity for employment since that time and for this reason, that those assessments are current.
In turn, in my opinion, these reports are consistent with the tenor of the statements made by Mr Kossman, in his report dated 17 March 2011; Mr Schofield, in his report dated 23 March 2009; Mr Klug, in his report dated 19 December 2008; and Mr Hart, in his report dated 16 September 2008. Whilst each of these doctors failed to descend to particularity as to the extent of the plaintiff’s retained working capacity, they each confirmed that the plaintiff had lost the ability to undertake regular employment as a cleaner but had retained the ability to perform the work he presently undertook in his home maintenance business.
In this regard, reference is made on behalf of the defendant to the fact that in March 2007, Mr Wallace had opined as to the plaintiff’s capacity for work. Having regard to the fact this opinion was expressed before Mr Wallace had completed his investigations as to the plaintiff’s condition, and that by September 2007 Mr Wallace was opining that the plaintiff was a candidate for surgery, I am of the opinion that the view expressed by Mr Wallace as to the plaintiff’s capacity for work in March 2007 was most probably outdated even by September 2007 and that it is not informative on the issue at the present time.
(vi) Sixthly, in assessing the consequences of the injury to the plaintiff’s cervical spine upon his capacity for work, whilst I am satisfied that the plaintiff’s pre-existing injury to his lumbar spine may have limited his capacity to engage in very heavy lifting, I am satisfied that the primary cause of the plaintiff’s incapacity to work for periods of more than six to ten hours per week in his business stems from the injury to his cervical spine.
(vii) Finally, I accept the evidence of Dr Taylor who, in my opinion, was an impressive witness well placed to opine as to the plaintiff’s capacity for employment, having regard to his position as the plaintiff’s general practitioner and his long association with the plaintiff in that capacity which commenced well before the plaintiff’s injury; that even were the plaintiff able to find the most suitable of alternative employments, his capacity to engage in that employment would be restricted to some twenty hours per week. When this capacity is compared to that which would have pertained but for the injury to his cervical spine, which I am satisfied would have been likely to have involved a capacity to perform full-time hours in this type of work, the effect of the injury to the plaintiff’s cervical spine upon his retained capacity for work is highlighted.
[35] there being only one such payment of wages in the most recent financial year in the sum of $2,013.00
66 Taking into account the findings I have made as to the consequences of the impairment in function of the plaintiff’s cervical spine which has arisen by reason of the accident insofar as they impact upon him both as to pain, loss of enjoyment of life and his lost earning capacity, I am satisfied that it is appropriate to describe the consequences of that impairment as being “more than significant or marked” and as being “at least very considerable” and, accordingly, that the plaintiff is entitled to the leave which he seeks in this application.
67 I will hear the parties as to the precise form of the order which should be made in this proceeding and also upon the issue of costs.
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