Kotas v Express Enterprises Pty Ltd
[2016] VCC 389
•14 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-01773
| JACEK KOTAS | Plaintiff |
| v | |
| EXPRESS ENTERPRISES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 & 6 April 2016 | |
DATE OF JUDGMENT: | 14 April 2016 | |
CASE MAY BE CITED AS: | Kotas v Express Enterprises Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 389 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application in respect of pain and suffering damages only – injury to cervical spine with sequelae in right shoulder and arm – cervical discectomy and fusion performed – development of dysphasia – further surgery performed – consequences of original surgery suffered in right shoulder and arm – subsequent development of unrelated neck symptoms at different level – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC with Ms N Wolski | Slater & Gordon |
| For the Defendant | Mr A Moulds QC with Mr R Stanley | Russell Kennedy |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of pain and suffering damages only. Whilst there are references in the pleadings to matters of a psychiatric or psychological nature, the plaintiff relies only upon paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act – see Transcript (hereinafter referred to as “T”) 6.
2 The injury is one to the cervical spine with sequelae in the right shoulder and arm. The plaintiff is right hand dominant. The injury relied upon is a specific one, which occurred on 3 January 2012 when the plaintiff slipped and fell down some stairs – hereinafter referred to as “the accident”. The plaintiff ultimately came to surgery in the form of a cervical discectomy and fusion. As shall be discussed, another consequence of the accident was that, following surgery, the plaintiff experienced difficulty in swallowing food, this frequently leading to unexpected regurgitation of same. This led to further surgery. The plaintiff describes this consequence as being 80 per cent better following such surgery, but still experiences some symptoms.
3 For the purposes of the present application, the defendant accepts liability for injury to the plaintiff’s cervical spine at C6-7, being the level at which surgery, for which the defendant paid, occurred. It contests that it is liable for any consequences referred from C3-4, and it was conceded by the plaintiff that the evidence does not establish a link between the accident and any symptoms emanating from that level – see T113.
4 The defendant does not contest liability in relation to the dysphasia, being the swallowing and regurgitation problem. Indeed, it paid for the surgery in relation to this, it apparently being a problem emanating from the original surgery at C6-7. However, the defendant argued that this was no longer a consequence of any great moment – see, for example, T107 and 108.
5 Mr T Monti QC with Ms N Wolski of counsel appeared on behalf of the plaintiff. Mr A Moulds QC with Mr R Stanley of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of three affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature, including surveillance material, and was tendered either by consent or without objection. Counsel are to be commended for their endeavours in attempting to comply with the requirements of the recent Practice Note, particularly in relation to time limits for cross-examination and addresses. The parties are also to be commended for the very sensible and appropriate concessions that were made.
Factual background
(a)The plaintiff’s background, education, training and employment prior to the accident
6 The plaintiff is aged 51 years, he having been born on 3 November 1964. He is a married man with two teenage sons. He was born in Poland, migrating to Australia in 1966. He completed his secondary education in this State.
7 As the plaintiff is seeking leave in relation to pain and suffering damages only, a reduced amount of attention needs to be paid to details of his pre-injury working capacity and earnings. Suffice to say that most of his work has been in the automotive spare parts industry and predominantly as a sales representative. It was essentially in this capacity that he was employed by the defendant, commencing working for it on approximately 5 September 2011. He was engaged in this employment at the time of the accident, being, as stated, 3 January 2012.
(b) The plaintiff as a witness
8 I found the plaintiff to be an entirely credible witness. He gave his evidence in a careful and measured way, making appropriate concessions. I note that both Mr Peter Dohrmann, neurosurgeon, examining the plaintiff at the request of his solicitors, and Dr Michael Duke, consultant psychiatrist, examining on behalf of the defendant, commented on the co-operative nature of the plaintiff. I do not doubt the accuracy of his evidence and have found him to be a credible and reliable witness.
9 Quite lengthy surveillance footage was shown of the plaintiff, this being taken in January 2015 and again in January of this year. In the earlier surveillance, the plaintiff was seen to be lifting a small bag of cement. The plaintiff put the weight of it at 10 kilograms, an estimate that was not really challenged in cross-examination. He poured the contents into a bucket of water and stirred it with a stick. Apparently, the product was to be some sort of makeshift mooring for a boat. As shall be discussed, before the accident the plaintiff was a very enthusiastic fisherman and still continues to engage in that activity on a substantially reduced scale.
10 The more recent surveillance concentrates on the plaintiff and his two sons loading rubbish into a skip. This includes the breaking up of what appears to be a very light bed base. The only object of any weight appears to be an old hot water service or boiler. The lifting of this required the attention of the plaintiff and both of his sons. At one stage it was apparent that the plaintiff briefly took the weight of the heavier end, but one of his sons almost immediately came to his assistance. Certainly, as stated by the plaintiff, it was an awkward object to lift and manoeuvre.
11 In my opinion, the surveillance material did no damage to the credit of the plaintiff. I note that it has been seen by Mr Dohrmann and also by Dr Clayton Thomas, consultant in rehabilitation and pain medicine, who also saw the plaintiff at the request of his solicitors. Because of the timing of events, Mr Dohrmann saw only the surveillance relating to the bag of cement. His opinion in this regard was that the surveillance activities demonstrated were consistent with the plaintiff’s overall presentation. He also commented that there was no reason for him to question whether the plaintiff has suffered pain and distress as a result of the injury.
12 Dr Thomas also commented only upon the earlier surveillance. In his opinion, the plaintiff has the capacity to perform short activities, such as displayed in the surveillance, without too much difficulty. He also observed that the plaintiff clearly has attempted to get on with his life as best as possible and will perform activities in which aggravation is likely. Whilst he did not think it was in the plaintiff’s best interests, he had no doubt but that he could perform such activities intermittently.
13 Certainly the material showed him making quite frequent bends of his back, but it is to be remembered that it is not an injury to the lumbar spine from which he suffers. In summary, the surveillance material does not cause me to alter my opinion that the plaintiff is a reliable witness of credit.
(c) The state of the plaintiff’s health prior to the accident
14 There is nothing in the plaintiff’s pre-accident medical history that is of particular significance. He has had a couple of episodes of left sided sciatica, these being long before the accident. He appears to have had some symptoms in his neck as a result of playing basketball in 2007, but it is not suggested that there was any ongoing symptomatology. Earlier, he seems to have suffered some form of muscle strain in the neck in 2005. It was not argued that either of these incidents was of significance. He has also had various items of surgery, such as removal of his appendix, which are of no great relevance. There have also been episodes of panic attacks, anxiety and depression, which required medication. Any such problems were controlled from 2005 onwards.
15 I do not regard there as being anything of significance in the plaintiff’s medical history prior to the accident.
(d) The injury sustained in the accident, its treatment and diagnosis
16 As stated, there is no contest but that the plaintiff sustained an injury to his cervical spine on 3 January 2012, when he slipped and fell on some metal steps at his place of employment. Following the incident, he experienced severe neck pain and referred pain into the right shoulder, along with weakness and paraesthesia of the right arm and hand. He saw a general practitioner across the road from his workplace, who in turn referred him to the Northern Hospital. At the Northern Hospital, the plaintiff underwent a CT scan and an MRI. The conclusion of the radiologist who performed the MRI was that the most important finding was the proximal foraminal narrowing on the right C6-7 that appeared to impinge on the right C7 nerve. There was some bulging at other levels, including at C3-4. However, clearly the radiologist considered the findings at C6-7 to be important.
17 The plaintiff was provided with analgesic medication, but his symptoms continued and he remained in significant pain. He was referred to the Austin Hospital. Subsequently, the Austin Hospital put him on a waiting list in respect of neck surgery. However, the plaintiff’s general practitioner, Dr Michael Williams, referred him to a private neurosurgeon, namely Ms Caroline Tan. Dr Williams, who has continued to be the plaintiff’s treating general practitioner, first saw him on 9 January 2012, when the plaintiff was in substantial pain in the lower neck with associated spasm and had pain and paraesthesia radiating down the inner aspect of the right arm and into the fingers. Dr Williams commenced the plaintiff on narcotic analgesia and subsequently referred him to Ms Tan, who first saw him on 14 February 2012. She in turn referred him for a cervical MRI, the result of which was similar to earlier studies. Whilst there were some problems at C4, at C7 there was a moderate to severe right sided nerve lesion. There was no indication that the problem at C4 was symptomatic.
18 On 10 March 2012, Dr Tan performed a C6-7 anterior cervical discectomy and fusion. Subsequently, the plaintiff developed some bilateral upper and lower limb pain, but a CT scan did not reveal any post-operative complications.
19 The plaintiff was referred for rehabilitation at a spinal management clinic. Subsequently, he sought a second neurosurgical opinion. His care was then taken over by Professor Peter Teddy. In a report of 2 January 2013, Dr Tan expressed the view that she had no doubt but that the plaintiff had experienced considerable pain, suffering distress and anxiety as a consequence of his work injury, which had impacted upon his social and domestic life.
20 In his report of 25 January 2013, Dr Williams recorded that, after initial relief, the plaintiff experienced increasing neck pain, paraesthesia and pain of the right arm, along with some paraesthesia of the left hand and difficulty swallowing food. Dr Tan having reported that she was unable to offer further assistance, Dr Williams referred the plaintiff to Professor Teddy, who saw him on 29 May 2012. Amongst other findings, Professor Teddy expressed the opinion that the plaintiff’s problems with swallowing appeared to result from the positioning of the fusion plate.
21 A further MRI of the cervical spine was carried out at the request of Professor Teddy on 4 June 2012. The conclusion of the radiologist was that there had been a decrease in size of the previously demonstrated right paracentral protrusion at C6-7, resulting in moderate right neural exit foraminal stenosis.
22 Professor Teddy referred the plaintiff to Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist. Dr Sullivan first saw the plaintiff on 5 September 2012. He noted that the plaintiff’s principal dysfunction related to the performance of tasks, especially if repetitive or requiring grip strength, with his dominant right arm.
23 The plaintiff then underwent further surgery performed by Professor Teddy. Testing performed in July 2012 had shown that there was posterior indentation of the cervical oesophagus by the fusion plate. After obtaining approval from the defendant, Professor Teddy operated on the plaintiff on 26 September 2012. The fusion plate was removed and a repeat anterior interbody fusion performed.
24 On 12 November 2013 the plaintiff underwent a selective nerve root injection on the right at the C7 level, this apparently being performed or arranged by Dr Sullivan. This resulted in a reduction in symptoms. On 25 January 2013, pulsed radio frequency of the right C7 dorsal root ganglion was performed. Dr Sullivan did not review the plaintiff subsequently. In his report of 18 February 2013, he stated that the plaintiff’s prognosis was guarded and that he was at significant risk of ongoing pain chronicity. He suggested ongoing assessment and treatment by a neurosurgeon. Dr Sullivan considered the plaintiff to be in danger of the development of an intractable chronic pain condition. He noted that the plaintiff was having chronic pain of a daily nature.
25 In relation to the dysphasia, at first the plaintiff seems to have had virtually a complete resolution of the swallowing symptoms. Dr Williams has recorded this in his report of 25 February 2013, this also being recorded by Professor Teddy at review on 13 November 2012. At a further review on 17 December 2012, the plaintiff was complaining of soreness in his arm and neck. The nerve root block had worked well for only about one week. Reporting on 30 April 2013, Professor Teddy expressed the view that the plaintiff would continue to have symptoms to varying degrees, these including neck pain, right arm pain and dysaesthesia in the right arm. He considered that the plaintiff’s condition had stabilised. He agreed with Dr Sullivan’s views in relation to pain, suffering, distress and the social and domestic impact upon the plaintiff’s life.
26 Professor Teddy last saw the plaintiff upon referral from Dr Williams on 1 September 2015. He noted that the plaintiff now suffered from some symptoms in the left arm, these apparently emanating from the C3-4 level. He recorded that, in relation to the swallowing, this had remained “more manageable” since the removal of the plate in 2012. The plaintiff’s right arm pain had been “quiescent” following the treatment by Dr Sullivan. However, in expressing his opinion, Professor Teddy commented that the plaintiff’s right-sided arm symptoms had improved to a considerable degree “albeit incompletely”. He considered it likely that the plaintiff would have intermittent pain and restricted movement in the neck as a result of the changes that had required operation at the C6-7 level. He thought it unlikely that the plaintiff would deteriorate significantly.
27 Dr Williams also referred the plaintiff to Associate Professor Tissa Wijeraine, consultant neurologist. Associate Professor Wijeraine first saw the plaintiff on 8 June 2013. The plaintiff was experiencing significant neck pain spreading along his right shoulder. Sometimes he had left arm pain. He was also suffering from some depression and anxiety. The pain which the plaintiff was experiencing in the mid to lower cervical spine was rated 7/10 in intensity on a daily basis. The pain would also radiate into the right shoulder and arm, with a similar pain rating. In addition, the plaintiff was experiencing constant numbness in several fingers of the right arm. On examination, neck flexion and right and left side flexion were limited to about 50 per cent. Sustained bending to the right caused significant pain radiating along the right arm. Neck rotation was restricted by stiffness and pain.
28 Associate Professor Wijeraine reviewed the plaintiff on 27 July 2013, at which time the plaintiff was attending physiotherapy. There was no improvement in his symptoms. Nerve conduction studies did not show any evidence of a neuropathic process. Associate Professor Wijeraine stated that it was his impression that the plaintiff was suffering from a chronic pain syndrome related to his injuries, which did not respond well to surgical interventions. It was not thought that his medical condition had yet stabilised. Associate Professor Wijeraine observed that the plaintiff was suffering from significant pain and distress. He needed multi-disciplinary pain care.
29 In April 2013, the plaintiff was seen by a clinical psychologist, Mr David Read, this apparently being upon referral from Dr Williams. He diagnosed an adjustment disorder with mixed anxiety and depression and felt that the plaintiff needed some further psychological intervention as this was proving to be most effective.
30 The plaintiff continues to see Dr Williams or another doctor in the same practice for prescription of medication. He currently takes Targin, both morning and night, along with Endone every couple of days when his pain is worse. He takes other medication of a night and Panadol on a needs basis. The plaintiff saw Dr Williams in February 2014 after he had been assaulted by a parent at a basketball game, such assault including being gripped around the neck and lifted from the ground. He had a flare-up of neck pain and pain down the right arm. An MRI revealed no new pathology and the increased symptoms gradually settled.
31 In his report of 23 March 2016, Dr Williams observed that the plaintiff’s long-standing C6-7 nerve root impairment pain had been the primary reason for the ongoing need for medication, although there has been some distress emanating from the left C3-4 problem.
32 The plaintiff has also been seen for medico-legal purposes. As stated, he has seen Mr Dohrmann at the request of his solicitors. Mr Dohrmann saw the plaintiff on 13 October 2015. He considered that the plaintiff’s condition had stabilised and that, whilst he is capable of work which is not physically demanding, there appears to have been a significant detrimental effect on the ability of the plaintiff to engage in ordinary social, domestic and recreational activities. He was also of the view that the plaintiff suffered pain and distress as a result of his injury and that the prognosis is reasonable. Mr Dohrmann expected that the plaintiff’s symptoms will continue in a fluctuating manner for the foreseeable future. These include constant posterior and central neck pain made worse by physical activity, together with daily occipital headaches. The plaintiff also described pain in the right shoulder and shoulder blade radiating into the triceps region of the right arm.
33 Mr Dohrmann was also of the view that the plaintiff was at risk of accelerated degenerative change, particularly at C5-6, as a result of the surgical stabilisation that has already been performed. Mr Dohrmann expressed the view that the assault at the basketball game produced an increase in symptoms that have since subsided, such that the plaintiff’s current condition is similar to that which existed prior to the assault.
34 In a letter of 29 October 2015 to the plaintiff’s solicitors, Mr Dohrmann expressed the view that the assault in February 2014 may have exacerbated symptoms, but caused no new injury. He further stated that any increase in symptoms following the assault had subsided.
35 Dr Clayton Thomas saw the plaintiff at the request of his solicitors on 6 November 2015. He expressed the opinion that the plaintiff’s injury would preclude his ability to participate recreationally, domestically and socially to the extent that he was able to do prior to the occurrence of the injury “to a fairly significant and marked manner”. Dr Thomas considered that this will continue indefinitely into the foreseeable future.
36 The defendant has also had the plaintiff examined. Associate Professor Anthony Buzzard, orthopaedic surgeon, saw the plaintiff on 13 November 2013. He described the plaintiff as having continuing symptoms in his neck and continuing evidence of nerve root involvement. The plaintiff also was restricted in his range of movement of the right shoulder, this being an additional employment restriction. Associate Professor Buzzard considered the plaintiff’s condition to be stable and was prepared to make an assessment pursuant to the AMA Guides, a requirement of which is that impairment is permanent.
37 Mr Daryl Nye, neurosurgeon, examined the plaintiff on 25 March 2013. He described the injury as being the aggravation of degenerative change and precipitation of C6-7 disc prolapse with nerve compression. He thought that, on radiological grounds, there was evidence of persisting foraminal stenosis at the treated level and clinical evidence of C7 radiculopathy. He did not believe that the plaintiff’s condition had resolved, nor that the plaintiff could resume pre-injury duties. Overall, he considered that the plaintiff’s response to surgical treatment had been less than optimal with continuing symptoms and radiological evidence of a persisting abnormality at the treated level. He regarded the prognosis as uncertain.
38 Mr Kevin Siu, neurosurgeon, saw the plaintiff on 4 November 2015. He noted that the plaintiff now presented with some left sided symptoms attributable to compression of the C4 nerve root. However, his finding on examination was that there was no evidence of nerve root compression on the left side. His physical examination did not indicate signs of movement restriction. He described the symptoms of the assault as having resolved after a few weeks. Mr Siu regarded the prognosis as being uncertain.
39 The diagnosis in this case is comparatively clear. The plaintiff suffered injury at the C6-7 level as a result of the accident. This required surgical intervention, in the form of an anterior cervical discectomy and fusion. Subsequently, because of the dysphasia, the fusion plate was removed and a repeat anterior interbody fusion performed. The surgical intervention was, as described, not “optimal” and indeed the plaintiff has ongoing consequences and restrictions directly related to the accepted injury and its treatment. I will leave to one side any symptoms on the left side emanating from the C3-4 region, as these are accepted to be unrelated to the accident.
40 Insofar as the injury is in the nature of an aggravation, being the opinion of Mr Nye, I accept that, whilst the plaintiff may have experienced some occasional neck pain some years prior to the accident, this was comparatively fleeting and certainly not incapacitating to any significant degree. The symptoms and consequences which the plaintiff has experienced since the accident are a direct consequence of it.
41 I am satisfied that the consequences of the injury are permanent within the meaning of the Act in that they will persist for the foreseeable future. As early as November 2013, Associate Professor Buzzard, examining on behalf of the defendant, was prepared to make assessments of permanent impairment. Mr Dohrmann has opined that the plaintiff’s symptoms will continue in a fluctuating manner for the foreseeable future. Professor Teddy described the plaintiff’s condition as stabilised. Dr Williams has stated that the prognosis for the plaintiff is one of ongoing pain, paraesthesia and disability. The issue of permanency is not one that received any great attention from the defendant. I am satisfied that it has been established.
42 Pursuant to s134AB(38)(h), psychological and psychiatric consequences are not to be taken into account. The plaintiff has suffered from some depression and lack of self-confidence. He had previously suffered from depression. Dr Williams prescribed some medication for him and referred him to a clinical psychologist, Mr David Read, who assessed him on 30 April 2013. Mr Read diagnosed an adjustment disorder with mixed anxiety and depression since the accident and suggested ongoing psychological intervention, as this was proving most effective as at the time of his report.
43 Dr Michael Duke, consultant psychiatrist, examined the plaintiff at the request of the defendant on 6 November 2013. Dr Duke expressed the view that aggravation of the plaintiff’s pre-existing depression had been present between about the end of 2012 and halfway through 2013, but had now remitted. This may well fit in with the observation of Mr Read in April 2013 that psychological intervention was proving most effective. However, Dr Duke does seem to have made an assessment of whole person impairment in a very modest amount. Again, the plaintiff’s mental health was not an issue that received particular attention from the defendant. As required by the Act, I shall not take into account consequences of a psychological or psychiatric nature, but I am not of the view that they are currently of great magnitude. They may have been more pronounced a few years ago.
Other developments since the accident
44 I have already described the course of the plaintiff’s treatment. In relation to the increase in symptoms following the assault of 15 February 2014, I accept that this resulted in only a temporary increase in symptoms. Following the accident, the plaintiff was absent from employment for a period of approximately 10 months. He returned on light duties and reduced hours, but struggled to cope. Ultimately, he stopped working for the defendant in early August 2013. In late August 2013, he obtained his present employment. This involves him in visiting various dealers in car parts, where he assists in the implementation and management of software systems. This work involves him in a lot of travel, particularly interstate, but the plaintiff is coping with the assistance of medication. His earnings exceed the income which he was receiving prior to the accident.
Ruling
45 I find that the plaintiff has discharge the burden of proof and that, when the relevant comparison is made, the consequences of his injury could be described as being more than significant or marked and as being at least very considerable. I have come to that conclusion for the following reasons, which are not set out in order of importance.
(i) The plaintiff has already been through a great deal and suffered a substantial amount of pain. As earlier stated, I find him to be a witness of truth and I am satisfied that he continues to suffer constant pain. He told Mr Dohrmann that he suffers from constant posterior and central neck pain which varies in intensity from 5/10 to 8/10. In his very recent affidavit of 5 April 2016, the plaintiff has sworn that he continues to suffer constant neck pain at and around the area where the surgery was performed. He also continues to suffer constant right shoulder pain, along with constant tingling and numbness from the elbow upwards and numbness, together with pins and needles, in the right index finger, middle finger and thumb. Constant pain is an important factor to be considered in applications such as these. I would refer to Haden Engineering v McKinnon (2010) 31 VR 1 and subsequent decisions of the Court of Appeal, such as Sutton v Laminex Group Pty Ltd (2011) 31 VR 100.
(ii) The plaintiff is aged 51 years. There is no reason to anticipate that he will have anything other than a normal life expectancy. Accordingly, the pain and other consequences from which he suffers could well persist for some decades to come.
(iii) I am not of the view that the fact that the plaintiff is in full-time employment and earning more than he did before the accident should count against him to any significant extent. He has adopted a somewhat stoical approach, given what he has been through, and it is to his credit that he has been able to find suitable full-time employment. I accept that he requires medication to assist him when he is travelling. However, my overall impression is that he is something of a stoic and this should not count against him. In this regard, I was directed to the observations of Nettle J in Dwyer v Calco Timbers Pty Ltd (2008) 244 ALR 257 and consider that they are relevant to the present plaintiff.
(iv) Prior to the accident, the plaintiff was a devoted fisherman, to the point of being almost fanatical. He would go fishing some five or six times a week, both on Port Phillip Bay and in pursuit of larger fish elsewhere. His fishing activities have been substantially reduced. Whilst he still goes fishing two or three times a week, it is at a level much below what was. He is no longer able to pursue big fish or fish of the nature which he particularly enjoyed catching. He told the Court how much it meant to him to be unable to pursue this hobby in the way that he did previously and it is clearly a substantial loss to him.
(v) The plaintiff’s wife, Ms Jacqueline Kotas, has sworn an affidavit dated 4 April 2016. She has sworn that the plaintiff’s sleep has been significantly affected. He gets up and walks around at least twice per night. Interference with sleep is another consequence which is important and which has been specifically mentioned in the Court of Appeal – see, again, Haden Engineering and Sutton.
(vi) The plaintiff is on a regime of quite strong medication. He takes Targin, both in the morning and at night. He has also been taking Endone when required since the accident. The level of medication required is also a factor to which consideration can be given.
(vii) The plaintiff is suffering from some left sided symptoms, apparently emanating from the C3-4 level and it is not contested but that, for the purposes of the present application, these did not arise from the accident. Accordingly, I do not take them into account, save for the extent to which they may impact upon the consequences of the C6-7 injury or to the extent that they create consequences of their own which affect the plaintiff. However, I am quite satisfied that they are considerably less than the consequences resulting from the accident. I would refer again to the plaintiff’s most recent affidavit and, for example, to the report of Mr Dohrmann.
(viii) The evidence also is that a consequence of the accident has been interference with the plaintiff’s sex life. I would refer to T87. I would also refer to paragraph 12 of the affidavit of the plaintiff’s wife. This is another important factor to be considered.
(ix) Prior to the accident, the plaintiff was a keen player of basketball, playing regularly with friends in a local team. His participation has ceased since the accident due to the increase in symptoms when throwing the basketball. He also enjoyed water skiing, particularly when visiting the Murray River. However, he is now confined to driving the boat whilst others ski. Both his sons are keen and good footballers. The plaintiff was involved in the clubs for which they play. He regularly acted as a trainer. This would involve him running onto the ground. He finds now that he cannot run without suffering increased pain and the level of his involvement has dropped. He also liked running generally, doing this three to four times per week. Now, he cannot do this, as running increases his symptoms. He has also reduced the amount of walking that he does. Further, he has problems engaging in home handyman work. Whilst he still does some of this, it is now with difficulty and it takes him considerably longer to do this work. His enjoyment of reading books has also been affected. In short, the plaintiff’s enjoyment of life has been adversely affected in a number of ways and these restrictions commenced after the accident and will persist for the foreseeable future.
Conclusion
46 The plaintiff has discharged the burden of proof. Leave is given to him to bring proceedings in respect of pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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