Lanciana v Victorian WorkCover Authority
[2019] VCC 705
•23 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-04397
| GIUSEPPE LANCIANA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2019 | |
DATE OF JUDGMENT: | 23 May 2019 | |
CASE MAY BE CITED AS: | Lanciana v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 705 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application in respect of pain and suffering damages only – reliance upon paragraph (a) of the definition of serious injury – injury to the lumbar spine – injury occurred in specific incident – disentanglement from unrelated conditions – whether burden of proof satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Ryan with Ms F Gold | PBP Lawyers |
| For the Defendant | Ms C Spitaleri | IDP Lawyers |
HIS HONOUR:
Background
1 This matter comes before me by way of an application pursuant s134AB(16)(b) of the Accident Compensation Act 1985, (hereinafter referred to as “the Act”). The plaintiff seeks leave in respect of pain and suffering only. Reliance is placed only upon paragraph (a) of the definition contained in s134AB(37) of the Act. The injury relied upon is one to the lumbar spine. In relation to these matters, I would refer to the transcript (hereinafter referred to as “T”) 2. The injury occurred on 18 November 2010, when the plaintiff was lifting a coiled mass of plastic which had become stuck to the floor of a container, this occurring in the course of his employment as a machine operator with an entity then called Cryovac Australia Pty Ltd, which shall hereinafter be referred to as “Cryovac”. There is no argument concerning the occurrence of the lifting incident or that the plaintiff has suffered an injury to his low back or, indeed, that this caused the requirement of surgery – see T11. Thus, the central issue is whether the consequences of the plaintiff’s accepted injury reach the threshold and satisfy the statutory test. It was said at the outset that there could also be an issue in relation to disentanglement of the consequences suffered by the plaintiff from other unrelated conditions. However, the impression which I gained was that the principal debate centred upon whether or not the consequences of the plaintiff’s injury were of sufficient magnitude to satisfy the statutory test.
2 Ms F Ryan of counsel with Ms S Gold of counsel appeared on behalf of the plaintiff. Ms C Spitaleri of counsel appeared on behalf of the defendant. The plaintiff gave sworn evidence, including the adoption of two affidavits as being true and correct, save for an incorrect reference to the level at which a discectomy had been carried out, this being set out in the earlier affidavit. There was no opposition to it being corrected and which correction, I might add, made more sense, given the context in which the reference in question appeared. The balance of the evidence was documentary in nature and was tendered either by consent or without opposition.
3 Before moving onto the judgment proper, I would make the following observation about the manner in which this case was presented. I would regard it as being exemplary. Opening and closing addresses were succinct and addressed directly to the real issues of the case. A detailed chronology, including extracts from radiological reports, was provided. The cross-examination went straight to the heart of the matter and a brief re-examination focussed upon the central issues. Without wishing to sound as if I am marking or doing a critique on an examination paper, this was a particularly well run case, which identified and addressed the real issues to be determined.
(a) General background
4 The plaintiff is aged 69 years, he having been born in 1949. He is a married man with adult children and young grandchildren. He completed Year 10 at high school, leaving at the age of 16 years, and then did a five year apprenticeship with Ansett Airlines as an aircraft fitter. He worked with that entity and in that capacity for some 21 years. Before the dissolution of Ansett Airlines, he had decided to change his occupation and he worked in his family’s takeaway food business for some five years. He then worked as a salesman for a period, before commencing employment with Cryovac in 1997. Cryovac manufactured plastic and vacuum sealed bags for the food industry. He worked as a machine operator, which work had some heavy aspects, including the regular lifting of 25 kilogram bags of resin and the emptying of them into drums, which were in turn emptied into a hopper. He was lifting a coiled mass of plastic out of a large container when the accident occurred.
(b) The plaintiff as a witness
5 The plaintiff was a completely straightforward, articulate and impressive witness. I have absolutely no reason even to suspect that at any stage he was wilfully giving incorrect or misleading evidence. In her closing address and when dealing with the disentanglement issue, Ms Spitaleri made it clear that she was not suggesting that the plaintiff was a dishonest witness – see T33. As Ms Ryan said in her closing address, there was no suggestion that the plaintiff’s current condition is in any way embellished or impacted upon by functional concerns and, as she understood it, the defendant was not attacking his credit. That is also my understanding.
6 In short, I accept the plaintiff as being a completely straightforward, honest, reliable witness who gave accurate evidence.
(c) The state of the plaintiff’s health prior to the accident
7 I accept that the plaintiff was in good health prior to the accident. He had undergone umbilical hernia repairs at some stage, but there is no suggestion that any ongoing disability or impairment resulted therefrom. It is not suggested or argued that he suffered from any prior lumbar or spinal symptoms. The disentanglement argument focussed more upon the condition of the plaintiff’s left shoulder – see T32 and 33. However, this relates to a development subsequent to the accident. In summary, there is no relevant pre-accident symptomatology.
(d) The injury, its treatment and diagnosis
8 As is apparent, the defendant accepts that the plaintiff suffered an injury to his lower back, requiring surgery, as a result of the accident and that such initial injury was the cause of the recurrence of symptoms at the same level of the spine, this necessitating the second surgery – see T32. Accordingly, it is unnecessary to go into some aspects of the injury and its treatment in great detail.
9 The plaintiff’s treating general practitioner throughout has been Dr Claude Baldi of the Lalor Clinic. It was Dr Baldi who first saw the plaintiff in relation to the injury on 18 November 2010 and who arranged for the original radiological investigations. The plaintiff’s condition worsened and Dr Baldi referred him to Mr David de la Harpe, orthopaedic surgeon, who first saw him on 17 February 2011. Mr de la Harpe took an appropriate history, including the fact that the plaintiff had struggled on at work for a while but had now been off for some time. The plaintiff was taking a fairly comprehensive level of medications. Mr de la Harpe organised an MRI scan, which confirmed a left L5-S1 disc prolapse. Surgery, in the form of a left L5-S1 microdiscectomy, was required. Mr de la Harpe sought and obtained from the defendant (through its insurer) leave to perform the surgery as soon as possible. The surgery was performed on 12 March 2011.
10 The plaintiff had what his counsel described as a “fairly good result” from the surgery – see T4. Most of the sciatic pain had gone, although he still experienced some minor residual low back pain – see, for example, T14 and 15. By 21 April 2011, Mr de la Harpe felt that the plaintiff’s condition had stabilised and that he should return to work performing essentially non-manual or more sedentary duties. The plaintiff in fact returned to employment in late May 2011. He performed light duties and on a part-time basis until November of that year, when he resumed full-time work, performing duties which had been slightly modified, without any great problem.
11 In August 2012, the plaintiff suffered shoulder injuries, resulting in surgery in 2013. Following that, he again returned to work on modified duties. The role played by the shoulder injuries shall be discussed subsequently, particularly in the context of the disentanglement argument.
12 The plaintiff continued his employment, until he retired on 28 November 2014. He continued to maintain a regular exercise routine in order to strengthen his back. He then had a recurrence of symptoms in January 2017, again seeing Dr Baldi, who referred him for further radiological investigation. A CT scan was performed on 25 January 2017, this revealing a moderate sized left posterior disc prolapse at the lumbosacral level. The prolapse was impinging upon the left anterior aspect of the spinal theca and upon, and displacing, the origin of the left S1 nerve root within the lateral recess of the spinal canal. The plaintiff’s condition was managed conservatively, but became more severe in November 2017. He was referred back to Mr de la Harpe. An MRI scan was carried out on 3 December 2017, this revealing a left paracentral disc protrusion at L5-S1, with significant posterior displacement and compression of the left S1 nerve. The radiologist observed that this was the site of the previous surgery.
13 Mr de la Harpe operated again on 19 December 2017, again performing a microdiscectomy. Again, the plaintiff was pleased with the result, although Dr Baldi reported on 1 May 2019 that the plaintiff still suffered from low back pain and stiffness, also having a decreased range of movement and particularly of lumbar flexion. Whilst the plaintiff was continuing with strengthening exercises and gymnasium attendance, Dr Baldi noted that he had stopped heavy gardening. The plaintiff had also stopped activities that were likely to exacerbate his back pain or cause a recurrence. Dr Baldi observed that the long term impact of the back injury was that it had taken away the possibility of the plaintiff doing activities of that kind, in addition to affecting his enjoyment of, and adding to the cost of, simple home maintenance. In his more recent affidavit of 7 May 2019, the plaintiff has described a range of symptoms and restrictions from which he still suffers and to which I shall return.
14 The plaintiff has also been examined for medico-legal purposes. Earlier reports of Mr Hugh Weaver, orthopaedic specialist, and Mr Kevin King, orthopaedic surgeon, (these being of 14 September 2011 and 14 March 2012 respectively), have largely been overtaken by events, particularly bearing in mind the concessions made by the defendant. Suffice to say that Mr Weaver, who described the plaintiff as pleasant and well-motivated, referred to the plaintiff as having suffered a lumbosacral disc prolapse with involvement of the left S1 nerve root, this having been surgically treated. He considered that there were no real pre‑existing injuries as such. Mr King described the plaintiff as pleasant, strongly built and previously fit and active, and stated that the plaintiff had sustained an acute lumbosacral disc prolapse on the left side. Whilst the plaintiff had done well after the surgery, Mr King observed, with some prescience, that complete recovery following such surgery was rare. He thought that the plaintiff should be able to continue working, providing he kept to lighter duties.
15 Professor Richard Bittar, consultant neurosurgeon, examined the plaintiff at the request of his solicitors, reporting on 15 March 2019. Professor Bittar took a history of events, and noted that the plaintiff complained of constant lower back discomfort exacerbated by bending, twisting, lifting and the like. The back pain worsened if the plaintiff lifted more than approximately 5 kilograms. He also complained of pain radiating into his left hamstrings, but generally not beyond his knee, observing that his left leg pain was slightly more severe than his lower back pain, but had the same exacerbating and relieving factors. The plaintiff’s current treatment was noted to be hydrotherapy three times per week. The diagnosis of Professor Bittar was of an L5-S1 intervertebral disc prolapse, with recurrent disc prolapse requiring revision surgery. He implicated employment as a significant contributing factor to both the original and the recurrent disc prolapse. Professor Bittar considered the condition now to be stable and that the symptoms were likely to persist at their current level into the foreseeable future. He referred to the plaintiff’s symptoms, history and the like as being consistent and “strongly support a very significant organic basis”.
16 The defendant has organised medico-legal examinations. Dr Graeme Doig, who is accredited in relation to general orthopaedics and trauma, saw the plaintiff on 31 January 2018. This was only some six weeks after the plaintiff’s revision surgery. Dr Doig seems to have been somewhat focussed upon the issue of whether the plaintiff’s current condition was related to his employment. Given the concessions that have been made, this is no longer an issue and, accordingly, not a great deal of useful commentary is to be obtained from his report.
17 Mr Richard Pease, orthopaedic surgeon, examined the plaintiff at the request of the defendant, reporting on 30 April 2019. The plaintiff complained of low back ache aggravated by sitting or driving any distance, and pain radiating down the left leg posteriorly, but not below the knee. He informed Mr Pease that his pain on sitting was so significant that he would not contemplate a flight to Europe. He also has difficulty in lifting his left leg and the pain from the left buttock down the leg causes him to limp to the extent that he cannot keep up with his wife in a shopping centre. The plaintiff told Mr Pease that he could not manage his garden and employed someone to mow his lawns, also referring to difficulties in relation to playing with and lifting his grandchildren.
18 Mr Pease described the plaintiff as having suffered an acute back injury at work, referring to both the initial incident and surgery and the relapse at the same level, followed by further surgery. Mr Pease observed that recovery after the second operation was incomplete, and that the plaintiff had residual pain and neurological manifestations in the left leg. Overall, his diagnosis was of an initial disc prolapse, followed by a recurrent prolapse at the same site. The current symptoms will persist into the foreseeable future. Mr Pease was of the view that the plaintiff had not recovered as well after the second operation as he did after the first. He implicated employment as being the significant cause of the plaintiff’s incapacity and impairment, observing that, for all intents and purposes, the plaintiff’s current level of impairment and disability will continue into the foreseeable future.
19 The defendant also put before me some material relating to the condition of the plaintiff’s shoulders. I shall turn to that issue shortly.
20 Turning to the diagnosis which I accept, there is considerable unanimity in relation to it. Perhaps it is most simply put by Mr Pease as being an initial disc prolapse followed by a recurrent prolapse at the same site. This is spelt out a little more by the operating surgeon, Mr de la Harpe, who described the injury as a lumbar sacral disc prolapse causing pressure on the S1 nerve root – that is, sciatica. This was operated upon with essentially good results, followed by a recurrent disc prolapse in relation to the same disc on the same side and at the same level – L5-S1. This also resulted in sciatica. There seems to me to be little argument in relation to this, particularly in light of the concession made, and I accept it as the diagnosis.
21 It may be that the plaintiff had degeneration at the relevant level. However, I accept that he was completely free of symptoms prior to the accident. Accordingly, the restrictions and symptoms from which he now suffers result directly from it, as does the necessity for two surgical interventions.
22 I am also satisfied that the consequences of the accident and the injury are permanent within the meaning of the Act, in that they will persist for the foreseeable future. That is the opinion of Mr de la Harpe, as expressed in his report of 16 April 2018. It is also the opinion of Professor Bittar, examining on behalf of the plaintiff and Mr Pease, examining on behalf of the defendant. The requirements of the Act have been satisfied in relation to permanence.
23 Pursuant to s134AB(38)(h), consequences of a psychological or psychiatric nature are not to be taken into account. I shall not do so, but note that, for example, Mr Pease, when asked if the plaintiff’s symptoms were due, to any extent, to functional overlay, exaggeration, psychological or psychosomatic factors, stated that there was no evidence of any functional overlay. Professor Bittar stated that there was no abnormal illness behaviour. That is entirely consistent with the plaintiff’s presentation in the witness box.
Other developments since the injury
24 As stated, the plaintiff returned to work with the same employer, eventually on a full-time basis, and worked on with only modest restrictions. This situation was interrupted by the plaintiff’s shoulder problems, following which he again returned to work, before retiring, at the suggestion of his doctor, on his 65th birthday. I accept what is sworn in his earlier affidavit to the effect that, prior to the return of his back problems in 2017, he was enjoying an active retirement, although some of his hobbies and the like have now been lost to him since the recurrence of his problems.
25 I turn now to the development since the initial injury that attracted some attention during the conduct of this case and obviously in the preparation of it. I refer to the plaintiff’s shoulder problems, and more particularly any emanating from his left shoulder. Whilst these may have arisen in the context of the plaintiff exercising in relation to his back injury, it is not necessary for me to make any ruling in this regard. The plaintiff is not relying upon injury to the shoulders in this application. The concentration on the shoulder problems relates to the issue of “disentanglement”. Effectively the question becomes whether the plaintiff has discharged the burden of proof on the basis of consequences and symptoms solely relating to his back condition and whether these can satisfactorily be separated from restrictions, pain and suffering and the like arising from the injury to the shoulders. In order to assess whether the burden of proof has been satisfied in relation to the back injury, symptoms and restrictions emanating from the shoulders should be identified and, if it is possible so to do, put to one side.
26 Turning to the condition of the shoulders, the plaintiff started to experience pain in both shoulders in August 2012. An ultrasound of the left shoulder was performed on 29 November 2012. The findings were suspicious for a partial thickness tear of the articular surface. Some fluid was seen and there was a borderline gleno-humeral joint effusion. On the following day, an ultrasound of the right shoulder was performed. The principal finding was of a focal full thickness tear of the subscapularis and an almost full thickness tear on the articular aspect of the supraspinatus. These ultrasounds had been organised by Dr Baldi, who also referred the plaintiff to Mr Richard Dallalana, an orthopaedic surgeon. He arranged for an MRI scan of both shoulders. The MRI scan revealed full thickness tears on each side, along with other findings. Ultimately the plaintiff underwent surgery.
27 Mr Dallalana undertook left shoulder surgery on 2 May 2013, reporting to Dr Baldi that the plaintiff might require a two month recovery period before return to regular manual work and that full recovery from the surgical episode was expected to be in the order of five to six months. On 19 August 2013, the plaintiff underwent a right shoulder repair, again with a recovery period in the order of six months with gentle use of the arm being suggested, simple tasks being able to be performed from the three month point following the procedure. It is to be remembered that the principal argument based upon disentanglement advanced by the defendant related to the consequences of the left shoulder injury.
28 Mr Dallalana reported again to Dr Baldi on 20 February 2014. He had conducted a final review of the plaintiff on that day and this had demonstrated good function in both shoulders. The plaintiff was comfortable, had a very good range of motion and strength was starting to return well. Mr Dallalana described it as a better than average result from this type of rotator cuff disease and stated that a lot of this was to do with the plaintiff’s vigilance in relation to post-operative rehabilitation. However, the plaintiff does not possess normal tendon material within his shoulders and they would not be capable of withstanding heavy loads, overhead work, sudden pushing or pulling forces in the course of work and the like. In the opinion of Mr Dallalana, the plaintiff should stay on appropriately structured duties in order to avoid types of strains of that kind and thus prevent re-injury. It is to be remembered that the plaintiff returned to work on modified duties following these surgical procedures and ultimately retired from work on 28 November 2014, some nine months after the report of Mr Dallalana referred to above.
29 In cross-examination, the plaintiff said that, after the shoulder surgeries, he continued to experience pain in the shoulders until it resolved. He stated that, in relation to heavy lifting, he was restricted, especially on the left side. He had slight trouble with activities such as pulling and pushing heavy things. After he retired, he continued to have only slight pain in the left shoulder, but none in the right. The plaintiff believed that he continued with the physiotherapy after retirement. Eventually the pain in the left shoulder went away and was only experienced if he lifted, pushed or pulled something heavy. The pain would be “a little bit” – see T17.
30 The plaintiff agreed that the pain in the left shoulder makes it difficult for him to lift crates of tomatoes when he is making passata once a year. The left shoulder pain, in addition to the back pain, also makes it difficult to lift crates of grapes during winemaking, which is also a once a year activity. However, he would not agree that, when carrying out such an activity, most of the pain was in his left shoulder. He stated that it was in his back – see T28. Also, in relation to annual salami making, the most part of the pain is also in the back. The plaintiff has sworn that he is no longer making salami because he does not want to risk any further damage to his back. He stated with some emphasis that his “first problem” was his back.
31 I was referred to the decision of the Court of Appeal Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67. Clearly, for the purposes of “disentangling” findings have to be made in relation to the pain and suffering consequences attributable to each injury. I trust that I have dealt with that above. I would also point out that, at paragraph 25 of his Judgment, Maxwell P stated as follows:
“It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no ‘disentangling’ is necessary.”
The situation in the present case seems to me to be at least close to that.
32 I say now that, whilst I accept that the plaintiff still has some left shoulder pain in relation to some activities, it plays a comparatively minor role in his day-to-day living and his general presentation. He is quite adamant that his biggest problem in relation to matters such as walking is pain in his buttock and the back of his leg; that he has had only slight pain in the left shoulder since retirement; that the left shoulder pain eventually went away, and thereafter he only experienced it when lifting; and that the pain in his shoulders continued until it resolved “with the rehab side of it”. I disagree with the proposition that disentanglement of the consequences of the injuries to the back and the left shoulder has in some way been made difficult or impossible. I am of the view that the evidence generally, and particularly the plaintiff’s evidence, makes it a comparatively easy task to “disentangle” the consequences of the respective injuries. Of course, I shall disregard any consequences of the left shoulder injury, but I am of the view that they play a comparatively minor role in the plaintiff’s overall problems.
33 The plaintiff has also had bilateral carpal tunnel symptoms and he was subject to a right endoscopic cubital tunnel release on 28 May 2018. Very little was said about this and not much information is available in relation to it. It was not raised as an issue by the defendant.
34 The only other development since the injury and surgery which received attention was that apparently the plaintiff has had a holiday in Hawaii. This seems to have occurred in approximately September 2017, but no great emphasis was placed upon it.
Ruling
35 I am of the opinion that the plaintiff has discharged the burden of proof in this matter. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(a) In my opinion, the plaintiff was an honest witness of great credit. In applications of this nature, the credit of the plaintiff is usually important, and this case is no exception. As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439 at [448]:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance.”
This observation has been referred to more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and in Haidar v Transport Accident Commission [2016] VSCA 182. Bearing the above in mind, I accept the plaintiff’s evidence, both oral and in his supporting affidavits, in relation to his pain and suffering.
(b) Patently the plaintiff has a very stoical approach to his injuries. For example, he swore that he does not like to take medication in case he becomes addicted to it and that “I’d rather suffer the pain and deal with it that way” – see T23. He has undergone various surgical procedures, but has always returned to work, until advised by his doctor to retire on his 65th birthday. As was said by Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260:
“… the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can … it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
The fact that the plaintiff continued to engage in his employment despite what had occurred to him is an indication of his attitude towards his injury and its consequences. He has adopted an approach of attempting to keep fit and coping with his symptoms as best he can without heavy reliance on medication, preferring such things as hydrotherapy, walking and the like. As he swore in his more recent affidavit, he does not complain much about his lower back condition to Dr Baldi, because there is nothing that can be done about it. Certainly this approach should not count against him.
(c)In that same affidavit, the plaintiff swore that he learnt to adapt to the constant pain and restrictions of his lower back condition. Whilst tending to downplay it in his oral evidence, the plaintiff swore that his pain was constant and, when referring to the pain in the back of his leg, stated that his buttock pain was affecting him. He also swore that the pain in the back of the leg was “there all the time” and more so when he was sitting. Effectively he reiterated that his leg pain was there all the time, and the pain in the back there most of the time – see, for example, T20 and 22.
The experience of pain on a constant or daily basis is a factor of some importance. I would refer to what was said by the Court of Appeal in Haden Engineering v McKinnon (2010) 31 VR 1, Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 and other cases.
(d)Interference with sleep is a factor which received particular attention in the judgment of Maxwell P in Haden Engineering and has been referred to in other decisions. In Haden Engineering, his Honour stated that it was a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. In his affidavit of 7 May 2019, the plaintiff has sworn that his sleep is affected by leg pain. If he lies on his left side, the pain in his left buttock increases. He has difficulty getting to sleep and wakes up throughout the night in pain. He estimates that his sleep is affected by leg pain every second night. He has also given evidence that back pain interrupts his sleep – see T22. I accept his evidence as being accurate in this regard and am of the view that this is a factor of some importance.
(e)There are restrictions with his everyday activities. He has referred to his biggest problem when walking as being the pain in his buttock and at the back of his leg. He still goes for walks, but “not too far” – see T24. He can now do very little around the garden. He pays for somebody to mow the lawns and cannot do the weeding.
In his more recent affidavit, he has sworn that it is a great disappointment to him that he is so restricted in terms of handyman work around the house and gardening. He refers to gardening as having been a passion of his for many years, and now he has to outsource some of the work. There has also been interference with his ability to engage in the annual making of passata, wine and salami. It may be that these are essentially annual events or festivals, but I accept that they were important to the plaintiff, and he is now restricted in relation to them, and, indeed, because of the lifting of weights involved in the salami making, cannot engage in that at all. His shoulder problem may play some role in relation to these activities, but, as the plaintiff said in relation to the salami making, the shoulder might affect it a little bit, but the back “definitely the most” – see T28.
The plaintiff stated that his back problems also affect any long distance driving and that he would not be able to engage in a flight to Europe. He is no longer able to ride a bicycle, which was something that also contributed to his fitness, and has some problems in relation to shopping. Further, as he told Mr Pease, examining on behalf of the defendant, he has two grandchildren aged nine and seven and he can no longer wrestle with them, play with them or lift them.
In other words, there is quite substantial interference with many of the activities from which the plaintiff gained enjoyment and that interference is predominantly, if not overwhelmingly, emanating from his back condition.
36 When all of the above is taken into account, it is my opinion that the plaintiff has established that the pain and suffering consequences from which he suffers are appropriately described as being more than significant or marked and as being at least very considerable. He has discharged the burden of proof.
Conclusion
37 The plaintiff is successful. He has discharged the burden of proof. I shall hear the parties as to any further or ancillary orders that are required.
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