Lauder v Transport Accident Commission
[2021] VCC 270
•23 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03071
| ANTHONY BRIAN LAUDER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2021 (via Zoom hearing) | |
DATE OF JUDGMENT: | 23 March 2021 | |
CASE MAY BE CITED AS: | Lauder v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 270 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Injury to lower back – plaintiff working full-time – assessment of the nature and degree of the claimed consequences – whether the claimed consequences are “serious”
Legislation Cited: Transport Accident Act 1986, s93; Evidence (Miscellaneous Provisions) Act 1958, s42E(1)
Cases Cited:Philippiadis v Transport Accident Commission [2016] VSCA 1; Woolworths Ltd v Warfe [2013] VSCA 22
Judgment: The plaintiff’s originating motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R McCredie | Henry Carus & Associates |
| For the Defendant | Mr J L Batten with Ms A Bannon | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 On 6 December 2016, the plaintiff was the victim of a road rage incident which occurred on the Monash Freeway. The end result of the road rage occurred when the driver of the other vehicle entered the lane on which the plaintiff’s vehicle was travelling. He suddenly slammed on the brakes of his vehicle. The plaintiff had no time to react, with the result that he collided into the rear of the other vehicle. The driver of the other vehicle then drove off.[1]
[1]Joint Court Book (“JCB”) 15
2 The plaintiff submitted that he suffered an injury to his lower back which has resulted in a serious long-term impairment of the function of his lower back. He also submitted that he suffered a severe long-term mental or severe long-term behavioural disturbance or disorder which was later abandoned.
3 The defendant submitted that there were a series of issues which it intended to raise, among which were, the nature and extent of the injury suffered by the plaintiff; what injury, if any, the plaintiff suffers now related to the transport accident, and subject to the answer to the second question, what are the consequences of the impairment of the function of the plaintiff’s lower back which are said to satisfy the statutory test of seriousness.
4 Mr S McCredie of counsel appeared for the plaintiff. Mr J Batten of counsel appeared with Ms A Bannon of counsel for the defendant.
5 Both parties consented to the proceeding being conducted by audio-visual link, and I ordered that it proceed in that way pursuant to the provisions of the Evidence (Miscellaneous Provisions) Act 1958.
The Plaintiff’s Injury
6 The plaintiff noticed significant pain in his lower back, which led him to see Dr Sharmini Amalan, general practitioner, on 7 December 2016 at the Strathfieldsaye Primary Health clinic. The plaintiff also saw other doctors at the same clinic.
7 On 7 December 2016, the plaintiff saw Dr Amalan, who recorded the following in the clinical notes:[2]
[2]JCB 209
“1. …
2.rta- yesterday hit car in front and was inturn (sic) by other cars at the bacvk (sic)
no loc
was able to get out and walk
back pain – lower sioncethen (sic)
pain over l1-5 area
no saddle anaesthesia
slr normal
tone power sensation plantar - bilateral lower limpbs (sic)_ NADpain on spine lateral flexion forward flexion.”
8 The defendant tendered a portion of the clinical notes commencing at the entry dated 7 December 2016 and ending at the entry dated 6 December 2018.[3] In between those two dates, the plaintiff attended the clinic for treatment for his lower back injury on 8, 10 and 12 December 2016; 11, 15, 18 and 20 April 2017; 25 and 29 August 2017 and 20 July 2018.
[3]JCB 202-221
9 Under cross-examination, the defendant emphasised some of the entries as demonstrating that the plaintiff did not have a persisting problem with his lower back.
10 The entry dated 8 December 2016 refers to the plaintiff suffering lower back pain with “no radiation”, and apparently no other abnormality.[4] The entry dated 8 December 2016 refers to the plaintiff’s pain as being “pain better”, again with apparently no other abnormality.[5] The entry dated 10 December 2016 also records the plaintiff’s pain as being “pain better”, again with apparently no other abnormality.
[4]JCB 209
[5]JCB 209
11 The next entry dated 11 April 2017 shows a demonstrable worsening of the plaintiff’s lower back pain. The entry refers to “today worse radiation down the left gluteal area and leg”. It would appear to be the first occasion that the plaintiff was prescribed Panadeine Forte, with one to two tablets to be taken four times per day, and a prescription for Valium to be taken twice a day. It would appear that the Valium was prescribed to treat the plaintiff’s lower back pain, and not the psychiatric condition which he developed.
12 The next entry dated 15 April 2017 refers to the plaintiff’s lower back pain as “still back pain”, and refers to persisting radiation into his left leg, as does the next entry dated 17 April 2017.[6]
[6]JCB 212
13 The next entry dated 20 April 2017 refers to the plaintiff’s lower back pain, and “leg pain better” with no shooting pain presumably in the plaintiff’s left leg.[7]
[7]JCB 212-213
14 The next entry dated 25 August 2017 shows a demonstrable worsening in the plaintiff’s lower back pain. The relevant part of it reads:[8]
“back pain -1 week started suddenly radiation down left leg
has had it on anmd off few months ?after rta
… .”
(sic)
[8]JCB 214
15 On 25 August 2017, the plaintiff was referred to have a CT scan which was taken on 25 August 2017.[9] The radiologist recorded that the reason for the referral for the scan was “Lower back pain with left lower limb radiation”. He reported a mild broad-based posterior disc bulge at L5-S1 with possible impingement of the left S1 nerve root.
[9]JCB 73
16 The next entry dated 29 August 2017 records the radiologist’s findings of the discal abnormality at L5-S1. It refers to treatment by analgesia, exercise, physiotherapy and weightloss, and the reason for the visit as being lower back pain radiating into the (left) leg and a disc prolapse.[10]
[10]JCB 214-215
17 The next entry dated 20 July 2018 refers to the plaintiff’s lower back pain as being central, left and right lower back pain with shooting pain in the “left” leg but with no paraesthesia. Examination on that date demonstrated abnormalities of tenderness, straight leg raising and reflexes, as far as I am able to interpret the cryptic nature of the entry.[11]
[11]JCB 220-221
18 Additionally, the plaintiff was referred to have a second CT scan which was taken on 6 August 2018.[12] The radiologist recorded that the reason for the referral for the scan was whether the plaintiff had an L5-S1 disc bulge, gluteal pain and an issue with his neck. Despite the reference to the plaintiff’s neck, the CT scan was limited to the plaintiff’s lower back. The radiologist recorded that it demonstrated a large posterior disc protrusion at L4-5 moderately compromising the theca and a small to moderate sized posterior midline L5-S1 disc prolapse with mild apophyseal joint osteoarthritis.
[12]JCB 74
19 The plaintiff said that he continued to suffer from persistent lower back pain. That would appear to be so, because he was referred to have an MRI scan by a doctor at the clinic. It was taken on 10 May 2019.[13] The radiologist recorded the reason for the referral as being a disc prolapse. The relevant findings were that at L4-5 there was minor facet joint disease and a tiny central disc protrusion. At L5-S1, a mild diffuse disc bulge with mild facet joint disease and mild canal stenosis.
[13]JCB 76
20 It is unfortunate that the plaintiff did not obtain a conventional medical report composed by a doctor who treated him at the clinic. To obtain an understanding of his treatment early on requires resort to laboriously tracing through the clinical notes, and from an unsatisfactory medical report from Dr Remon Eskander (a doctor at the clinic) which is described as a “GP Management Plan REVIEW & TCA Review” dated 17 December 2019. It contains facts which are not referred to in the clinical notes.[14]
[14]JCB 86-87
21 Dr Eskander’s report refers to the plaintiff experiencing pain which became so severe that he experienced difficulty getting out of bed, bending over, sitting and standing. It refers to treatment by the use of heat packs, cold packs, Nurofen and other analgesia. It then refers to the plaintiff experiencing a severe burning sensation down his right leg after a few months; however, the clinical notes refer to left leg. He then referred to the CT scan and the MRI scan. He considered that they demonstrated “Minor discopathy and spondylosis at L4/5 and L5/S1 …”. He considered that the plaintiff required treatment by physiotherapy. He prescribed the plaintiff Celebrex, which I understand to be an anti-inflammatory.
22 The flavour of the cross-examination gave me to believe that the defendant was suggesting that the improvement in the plaintiff’s condition and the later onset of demonstrably worsening pain with radiation of pain into the left leg are less consistent with the injury initially suffered by the plaintiff resulting from the transport accident.
23 I should pause to observe that there is real controversy in the medico-legal assessments regarding whether the plaintiff suffered a discal injury. I will refer to that controversy later in these reasons, but for the time being I do not accept the suggestion that the plaintiff did not suffer an injury of some significance resulting from the transport accident, and that the clinical notes relied upon by the defendant can be interpreted in the way advanced by the defendant.
24 Interestingly, when a comparison is made between the clinical notes and Dr Eskander’s report, there is a significant difference in the detail contained in the clinical notes when compared with the narrative report. The report explains the complaints made to the doctors at the clinic very well, and as an adjunct to the clinical notes, demonstrates quite clearly that the plaintiff suffered a significant lower back injury which persisted, required treatment and resulted in interference with his capacity to function.
25 I am fortified in reaching this conclusion because the plaintiff was referred to Mr James Doyal, physiotherapist, who first treated him on 4 September 2017 for progressively worsening lower back pain,[15] and later by Mr Daniel English, physiotherapist, in early 2019, then in early 2020 for the same condition.[16]
[15]JCB 88
[16]Mr English provided reports dated 9 January 2019, 17 January 2019, 22 January 2019, 12 March 2019 and 4 April 2019: at JCB 94-98
26 I think there is a tendency to make more from the cryptic nature of clinical notes than is fair, and think this case is a glaring example of that. Again, a comparison between the clinical notes and Dr Eskander’s report makes that plain. I think this is a prime example of a case where care needs to be exercised in relying on clinical notes because they tend to be a selective summary of the attending doctors’ impressions.[17] In the end, I prefer the content of Dr Eskander’s report in making sense of the clinical notes, and disposing of the suggestion made by the defendant that in some way some of the entries serve to undermine the plaintiff’s evidence.
[17]Philippiadis v Transport Accident Commission [2016] VSCA 1 at paragraph [105], and Woolworths Ltd v Warfe [2013] VSCA 22 at paragraph [112]
The Medico-Legal Assessments
27 The plaintiff was examined by three orthopaedic surgeons. They have each come to different conclusions regarding the pathology underlying the lower back injury suffered by the plaintiff, and different conclusions relevant to the impact of the lower back injury on the plaintiff’s general functioning.
28 The first in time is Mr Ash Chehata, who examined the plaintiff on 26 November 2019. He provided a report dated 3 December 2019. His report is described in the index as being a joint medico-legal examination. On examination, he found a reduction in the plaintiff’s flexion, rotation and straight leg raising. He was provided with the reports of the second CT scan, the MRI scan, some of the reports of the physiotherapists, some medical reports and the clinical notes of the Strathfieldsaye Primary Health clinic. Certainly what he was provided was adequate for him to understand how the plaintiff came to suffer injury and his complaints of persistent pain and incapacity.
29 Mr Chehata considered that the plaintiff had suffered an aggravation of lumbar spondylosis with an asymmetric loss of range of motion in his lower back. He noted that the plaintiff was unable to perform a number of activities requiring bending, and was unable to return to normal functioning, however, he described the plaintiff’s continuing capacity for work as a fuel tank driver as “quite good”. He considered that the plaintiff’s prognosis was poor, with a likely progression of the degeneration in his lower back.
30 The next in time is Mr David Slattery, who examined the plaintiff on 16 November 2020. He provided a report dated 7 December 2020.[18] On examination, he found a reduction in the plaintiff’s flexion, rotation and straight leg raising. He was provided with a significant number of documents, radiology, medical reports and the clinical notes of the Strathfieldsaye Primary Health clinic. Certainly what he was provided was adequate for him to understand how the plaintiff came to suffer injury and his complaints of persistent pain and incapacity.
[18]JCB 125-133
31 Mr Slattery arrived at a different diagnosis to Mr Chehata, and to Professor Anthony Menz (whose report I will refer to next), concluding that the plaintiff had suffered an L5-S1 disc herniation and degenerative changes in his lumbosacral spine. Otherwise, his opinion is not much different from that of Mr Chehata. He, too, considered that the plaintiff’s prognosis was guarded. He considered that the plaintiff is at risk of deterioration in the future in the condition of his lower back. He also considered that the plaintiff’s capacity for strenuous work is now limited, although, he understood that the plaintiff was a fuel tanker driver. He considered that he would need to be “very careful” in his work to avoid aggravating the condition of his lower back. He considered that the plaintiff required ongoing physical therapy treatment and analgesia.
32 Professor Menz examined the plaintiff by video conference on 18 November 2020. No issue was taken by the plaintiff that any inadequacy was apparent by the fact that the examination was undertaken in that way. He provided a report dated 25 November 2020.[19] He was not provided with the same volume of documents as were provided to Mr Chehata and Mr Slattery. He referred to what he was provided in a schedule which referred only to the clinical notes of the Strathfieldsaye Primary Health clinic. He was provided with the second CT scan and the MRI scan. Interestingly, he expressed a clinical judgement that no physical examination was necessary for the assessment that he was required to undertake. I note that nowhere in his report does he refer to the product of any level of examination, for example of the plaintiff’s capacity to flex, rotate and straight leg raise.
[19]JCB 162-169
33 Professor Menz considered that the plaintiff had suffered a soft tissue injury to his lower back. He considered that the MRI scan demonstrated “very minor degenerative changes” which he considered could not explain the “ongoing and severe symptoms” reported by the plaintiff. The plaintiff criticised that observation by reference to what he recorded about the plaintiff’s current symptoms. He recorded that the plaintiff rated his lower back pain on a good day as 3 to 4 out of 10 and on a bad day 6 to 7 out of 10, with pain radiating down into his buttocks only, with no other abnormality. I infer that his reference to severe symptoms is his interpretation of the extent of the rating given by the plaintiff of his range of pain on a good day and a bad day.
34 Professor Menz’s opinion is not easy to follow. He considered that the plaintiff suffered “a temporary exacerbation of those symptoms”. In general terms an exacerbation is understood to be a worsening of an existing condition. The defendant graphically described it as being like throwing salt on an open wound. The only pre-existing condition of any kind is what is demonstrated on the MRI scan. Then, despite the above, he considered that because it was nearly four years since the transport accident, that the plaintiff’s prognosis for any recovery was “very poor”. Lastly, he did not consider that the plaintiff’s lower back injury was interfering with his capacity for work nor for domestic and leisure activities, but he noted the plaintiff does have pain when he engages in gardening.
35 I was not addressed about what to make of Professor Menz’s opinion to the extent of my analysis of it, however, I was invited by the plaintiff to ignore it in preference for the opinion of Mr Slattery. There are aspects of the structure of his opinion which are difficult to reconcile logically. I think what I can take from his opinion is that the plaintiff suffered a soft tissue injury of a minor nature which has not interfered with his capacity to function very much at all.
36 After considering the whole of the medical evidence, I prefer the opinions of Mr Chehata and Mr Slattery over the opinion of Professor Menz. I do not accept that the plaintiff merely suffered an exacerbation, but an injury more significant than that; however, whether the underlying pathology be consistent with the opinion of Mr Chehata or Mr Slattery, I am satisfied that he suffered an injury of such a degree to impair the function of his lower back and result in the consequences which I will refer to next. It is difficult to say more than I have regarding the identity of the injury because none of the medical practitioners were the subject of cross-examination, so I am left with a difference of opinion which is difficult to reconcile beyond what I have said thus far.
The Claimed Consequences
37 At the time of the occurrence of the transport accident, the plaintiff was employed by Linfox as a fuel tanker driver. He worked out of a depot at Altona. The plaintiff lived at Clyde North with his wife and three boys. He would drive from Clyde North to Altona, where he would then commence his day’s work as a fuel tanker driver.[20]
[20]Transcript 12-15
38 The plaintiff relocated to Strathfieldsaye in December 2017.[21] He and his wife own a five-acre property on which is situated their family home. The plaintiff continued to work for Linfox. He would travel from Strathfieldsaye to his mother’s home in Richmond where he would stay over during the working week and then return home at the end of the working week. The travel time from Strathfieldsaye to Richmond was one hour and forty minutes.
[21]Transcript 30-31
39 The plaintiff continued to work in that way for eighteen months before obtaining employment with Lowes Petroleum in Bendigo as a fuel tanker driver.[22] Strathfieldsaye is only a short distance from Bendigo. However, the plaintiff continues to travel to Yarraville to load fuel about five times a week. The travel time is about one hour and forty minutes. After loading fuel, the plaintiff travels to petrol stations, farms and industrial locations to deliver fuel.
[22]Transcript 31
40 The plaintiff’s relocation from Clyde North to Strathfieldsaye had nothing to do with his job as a fuel tanker driver. It had everything to do with what was put to him under cross-examination – it was a tree change.[23] My impression of the plaintiff’s evidence was that the amount of driving he undertook when working for Linfox while living at Strathfieldsaye played no part in his decision to leave Linfox to work for Lowes Petroleum.
[23]Transcript 37
41 The only current impediment caused by the plaintiff’s lower back condition to him undertaking his work as a fuel tanker driver is the need to stop during the trip from Bendigo to Melbourne to stretch his back. He stops and gets out of his truck about every 30-45 minutes to stretch his back.[24]
[24]JCB 19, 410 and Transcript 53
42 I was left with the impression that the plaintiff’s work as a fuel tanker driver inevitably involves him getting into and out of the cabin of the truck on a number of occasions during each day. It inevitably involves him sitting for long periods of time, although, interrupted by the occasions when he stops to stretch his back.[25] The hours he spends driving have not changed much at all when compared to the hours he drove before the occurrence the transport accident, and subsequently. I was left of the impression that he drives somewhere between 50 to 60 hours per week.[26]
[25]Transcript 32-33
[26]Transcript 15
43 The plaintiff said that he no longer enjoys being a petrol tanker driver, and understood part of that to be more to do with the psychiatric condition he developed as a result of the transport accident.[27]
[27]Transcript 15 and 49
44 The plaintiff referred to the consequences of the impairment of function of his lower back in his affidavits, and partly in his oral evidence when under cross-examination. In summary, those consequences are:[28]
[28]JCB 7-8, 17-18, and 409-410
·Constant lower back pain.
·Experiencing radiating pain into the back of both lower limbs, although, the medical evidence I have reviewed points to that being mostly buttock and left leg pain, and now less frequently than it was previously.
·Bilateral numbness in the buttocks, extending into the hamstrings.
·An inability to bend over, for example to do something as simple as putting on socks, and difficulty twisting at the back.
·The need for assistance from the plaintiff’s wife and children when heavy lifting is required, and the need to modify activities which might aggravate the condition of his lower back.
·Interference with engaging in boxing, although, not in boxing fights, but using a variety of punching bags for exercise.
·Interference with social gatherings with friends.
·Interference with the capacity to sit and stand for extended periods of time, and an inability to run or jog.
·Interference with sleep, although, part of that is due to the plaintiff’s psychiatric condition which has resulted in nightmares and flashbacks.
·Interference with the capacity to undertake basic household chores.
·Interference with his ability to perform maintenance on his property. He uses a ride-on mower. He does not work on the family vegetable patch.
·Interference with his sexual relationship with his wife.
45 The consequences referred to by the plaintiff in his affidavits, and in his additional oral evidence, were described generally, and in vague and non-specific terms. For example to say that he requires assistance from his wife and children when he faces the need to do heavy lifting is difficult to accept. He does not describe when he faces the need to do heavy lifting, the circumstances when that arises, and how his wife and children assist him. Furthermore, he does not describe how his children assist him, especially given that they are seven, ten and twelve years old. The same generality, vagueness and lack of specificity applies to the claimed consequences of interference with social gatherings, sleep, performing household chores and maintaining his property.
46 It is trite to say that an applicant must demonstrate consequences with some clarity in order to permit the trial judge to understand the nature and degree of the consequences. To put it generally begs the question – what is the nature and degree contended for? In any event, I found the plaintiff to be a straightforward man who gave his evidence in an uncomplicated way. I have done my best to assess his consequences despite the misgivings I have expressed about the generality, vagueness and lack of specificity of his evidence going to the nature and extent of the claimed consequences.
47 Apart from the medical treatment which I have referred to in the summary of the medical evidence, the plaintiff has had relatively modest medical treatment. He has been prescribed painkilling medication. He has been referred to physiotherapy. Currently, he is not attending physiotherapy because the defendant has ceased paying for it. I assume that means that he would continue to attend if it was paid for. His resort to medication is now over-the-counter medication comprising Nurofen, which he takes two or three times a week, usually taking two tablets at a time.[29]
[29]JCB 410
48 I do not doubt that the plaintiff has a level of pain in his lower back which is troubling for him, and which results in a level of interference with his capacity to work as a fuel tanker driver, and in his social, domestic and recreational life; however, the impression I have is that the level of interference may approach moderate, but not to the extent of being very considerable.
49 The medical opinions which describe his prognosis as being poor or guarded have to be seen in the context of the fact that the plaintiff is working full time in what must be a relatively arduous occupation as a fuel tanker driver. That occupation requires him to engage in the work tasks which I have described above which of themselves are likely to place stress and strain on his lower back. The plaintiff has been able to tolerate this well, to the extent that he has not had any significant time off work due to the lower back injury, and is now only having modest treatment using over-the-counter medication two to three times per week.
Some Other Issues
50 For the sake of completeness I need to refer to some other issues raised by the defendant which I do not think are of any particular importance.
51 Under cross-examination, the plaintiff was referred to the clinical notes which record that on 7 March 2016, he complained of suffering lower back pain pushing and pulling bins. He was prescribed Panadeine Forte. He attended for treatment subsequently, but last on 18 March 2016.[30] The defendant did not make much of this, but to the extent that it suggests that the plaintiff had a prior lower back condition which changes the character of the application to an aggravation case, then this evidence does not support that. It would appear that the plaintiff suffered a short lived incident of lower back pain and no more.[31]
[30]JCB 202-204
[31]Transcript 16-17
52 Under cross-examination, the plaintiff was referred to the clinical notes which record that on 27 March 2017, he complained of suffering neck pain after performing push-ups at home. The defendant did not make much of this either, but to the extent that it suggests that the plaintiff was suffering from some measure of a concurrent impairment, then this evidence does not support that.
53 It was under re-examination that the plaintiff disclosed that he had suffered a fall from a ladder probably in early December 2020. He described having smashed his legs and knee. He was removed from the scene of that incident by ambulance, and presumably taken to hospital. He was on light duties from early December 2020 through to February 2021.[32] The defendant submitted that the revelation of the fall and its consequences go to the creditworthiness and reliability of the plaintiff because it is patently an event which the plaintiff should have deposed to for the purpose of it being dealt with contextually to determine whether it had the potential to influence the outcome of this application.
[32]Transcript 50-51
54 It is disquieting that the plaintiff did not provide instructions to his solicitor that he had suffered injury in a fall; however, I accept the plaintiff’s evidence that he recovered from the injuries resulting from the fall because he returned to his ordinary duties after being on light duties for a relatively short period of time. I do not accept that it impinges upon his creditworthiness and reliability to the extent that it casts doubt upon other aspects of his evidence.
Summary of Conclusions
55 In summary, I accept that the plaintiff suffered injury to his lower back with the consequences which I have summarised above, but with the rider that those consequences are to a fair degree described generally, vaguely and without specificity.
56 I accept the plaintiff’s evidence that he has required the medical treatment which I have summarised, but is now in a position where he is having only modest medical treatment and using over-the-counter medication intermittently during the week.
57 I accept the plaintiff’s evidence that he continues to work as a fuel tanker driver performing much the same hours as he was prior to the occurrence of the transport accident, and performing much the same duties without having any time off work, but needing to interrupt his driving journeys to stretch his back.
58 I accept that the fact that someone is able to work full time is not necessarily the end of an application for serious injury. There are no doubt cases where a plaintiff continues to work, but the impairment consequences are so significant that it amounts to an impairment of a body function which is “serious”. This is not one of those cases.
59 In the end, the fact that the plaintiff is able to work is a very good test of his tolerance to the lower back condition that continues to trouble him. He is able to tolerate long periods of sitting, and the relatively arduous work which accompanies being a fuel tanker driver. His deficits are more interference with his life in a social and domestic setting, and some interference with his capacity to bend and lift. When I take into account the whole of the evidence, I am not satisfied that the impairment of the function of the plaintiff’s lower back is “serious” after having made the necessary comparison with other like impairments.
60 I will order that the plaintiff’s Originating Motion be dismissed.
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