Lloyd v Wesfarmers Limited
[2015] VCC 680
•27 May 2015
| IN THE COUNTY COURT OF VICTORIA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-13-04277
| ROBERT LLOYD | Plaintiff |
| v | |
| WESFARMERS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 October 2014 | |
DATE OF JUDGMENT: | 27 May 2015 | |
CASE MAY BE CITED AS: | Lloyd v Wesfarmers Limited | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 680 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Industrial accident – back injury – plaintiff pinned by forklift suffering fracture to pelvic bone and little finger – dispute over existence of back injury – extent of pain and suffering consequences
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; in Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Leave granted in respect of the pain and suffering consequences of the plaintiff’s low back injury
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C O’Sullivan | Maurice Blackburn |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HIS HONOUR:
1 Mr Lloyd seeks leave to commence common law proceedings to recover damages for pain and suffering only in accordance with s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). His application relates to a single incident in the course of his employment with the defendant at its Bunnings store in Rosebud on 23 March 2007 and relies upon paragraph (a) of the definition of serious injury set out in s134AB(37) of the Act. The impairment or loss of body function relied upon is the lower back.
2 Mr Lloyd is presently 65 years of age and no application was made by him for leave in respect of any pecuniary loss consequences stemming from his injury. He relied upon affidavits sworn by himself in April 2013 and October 2014 together with an affidavit sworn by his wife, also in October 2014.
3 Mr Lloyd was cross-examined during the course of this application, as was his treating general practitioner, Dr Amarasinghe. Both parties tendered documentary evidence largely in the form of medical reports from their respective Court Books which were received as Exhibits A and 1 respectively. The plaintiff also tendered the index of the Defendant’s Court Book (“DCB”) which identified the existence of surveillance footage which was not produced by the defendant during this hearing.
4 The issues identified by Mr Miles, who appeared on behalf of the defendant, concerned the nature and extent of injury suffered by Mr Lloyd and the extent of relevant consequences. Mr Miles ultimately submitted that I should not be satisfied that the plaintiff had suffered any back injury sufficient to produce consequences that are relevantly serious and permanent as required by the legislation.
5 Specifically, the defendant submitted that there was a notable absence of recorded complaints of back pain made by Mr Lloyd since 2007 which suggested that any back injury suffered by him in March of that year was minor or temporary.
6 Unsurprisingly, the position adopted by Mr O’Sullivan who appeared on behalf of Mr Lloyd was that the low back condition had occurred at the time of the original injury in March 2007 and its consequences in terms of pain and restriction on the plaintiff’s activities had increased over the years to the extent that they could fairly be described as at least very considerable at the date of this application being determined.
The factual background
7 Mr Lloyd was 65 years of age at the date of this application being heard. He is married and has two adult children. He came to Australia as a child from the United Kingdom and was educated to the equivalent of Year 9. He has a solid working record including an extensive period working for the Australian Customs Department. He had also worked in businesses since about 1994 doing gardening, lawn mowing and later working as a limousine driver. It would appear he maintained good physical health and had no apparent back problems at the time he commenced employment with the defendant at its Mornington Bunnings store in September 2004. I note he was 55 years of age at that time.
8 According to his first affidavit sworn 15 April 2013, Mr Lloyd performed customer service duties including cutting timber, assisting with vehicle loading and shelf stocking as part of that employment role.
9 In early March 2007, Mr Lloyd was transferred to the Bunnings store in Rosebud which was a new store due to open in early April. On 23 March 2007, he was talking to a co-worker who was in the driver’s compartment of the forklift. As this discussion was occurring, the forklift suddenly moved forward and pinned Mr Lloyd against some metal shelving. In his affidavit he states:
“I felt immediate and severe pain in my chest and pelvis and I recall collapsing to the ground. I was assisted by colleagues until an ambulance arrived. I was given medication for the pain by paramedics and then transported by ambulance to the Frankston Hospital. From the Frankston Hospital I was air lifted by helicopter to The Alfred Hospital.”[1]
[1]Exhibit A, page 8(7)
10 Mr Lloyd remained at The Alfred Hospital (“the hospital”) as an inpatient for a week. His injuries were described in a report tendered from the hospital as follows:
“1Left-sided rib fractures 5 to 9.
2Fractures of the right superior and inferior pubic rami.
3.Possible fracture of the left sacral ala.
4.A fracture of the base of the left fifth metacarpal bone.”[2]
[2]Exhibit A, page 20 – 21
11 Mr Lloyd underwent a period of rehabilitation at the St John of God Hospital and had surgery on his fractured finger. He underwent physiotherapy and hydrotherapy before returning to his employment on limited hours in early July 2007. He increased his working hours and by approximately the end of 2007 he had returned to full time hours. At the time of his first affidavit, he was still working 38 hours per week at the defendant’s Rosebud Bunnings store. In that affidavit he states:
“Whilst I am able to carry out most of the tasks required of me at work, from time to time I require the assistance of other staff members, for example if I am required to lift heavy items such as bags of concrete.”[3]
[3]Exhibit A, page 9(15)
12 Mr Lloyd described the back pain at that time as a constant aching type of pain, worse in the morning and again at night after completing a day’s work. He had difficulty with getting up after being seated and felt that activities such as gardening or other household tasks requiring bending or lifting worsened the pain. In that first affidavit he referred to specific activities such as sailing and woodwork which had been affected as a result of his increased back pain and also pelvic pain.
13 At the time of swearing his second affidavit on 13 October 2014, Mr Lloyd deposed to reducing his working hours from 38 to approximately 22 due to back pain and difficulties caused in the performance of his duties. He again referred to difficulties lifting and bending in the workplace and at home. He also referred to the impact of his back pain on his hobby of woodwork, stating:
“Prior to my injuries at work, I used to spend a large amount of my spare time doing woodwork and home improvements and I really miss being able to do these things.”[4]
[4]Exhibit A, page 13(5)
14 Reference was also made in that affidavit to his inability to get back into his sailing hobby and his apprehension at taking out a surf ski for a paddle.[5]
[5]Exhibit A, page 14(8)
15 The plaintiff’s wife, Mrs Janet Lloyd, also swore an affidavit on 13 October 2014.[6] She described Mr Lloyd as being a very energetic person, stating:
“When not at work, Robert spent nearly all of his spare time doing woodwork or home improvement jobs around the house. When he wasn’t doing such jobs, he would spent his spare time sailing or out on his surf ski.”[7]
[6]Exhibit A, page 15 – 16
[7]Exhibit A, page 15(2)
16 Her affidavit was generally confirmative of the plaintiff’s complaints that he was suffering from ongoing lower back pain that was interfering with his day to day activities. Mrs Lloyd’s affidavit did not refer to any workplace activities.
17 Before dealing with an assessment of the medical issues, it is prudent to refer to aspects of the cross-examination of the plaintiff concerning the factual matters deposed to by him and generally supported by his wife’s affidavit. Mrs Lloyd was not required for cross-examination.
18 The defendant tendered into evidence an affidavit from Michael Pocock-Davies sworn 4 September 2014.[8] Mr Pocock‑Davies was employed by the defendant as a building material sales and services coordinator. He had been the plaintiff’s direct supervisor since about mid-2012 and stated:
“The plaintiff is one of our better employees. He is hard working … at no stage have I been aware of the plaintiff having a low back complaint. He has not reported or mentioned this … (in the second week of January 2014) the plaintiff said he wanted to reduce his hours. He told me he was doing this because of his age and he wanted to spend more time at home.”[9]
[8]Exhibit 1, page 1 – 2
[9]Exhibit 1, page 1
19 When cross-examined about aspects of that affidavit, the plaintiff’s evidence was as follows:
·In relation to the statement that the plaintiff had undertaken full normal duties without restriction or modification from about September 2007 until the second week of January 2014, the plaintiff stated:
“No that’s entirely untrue. They were good enough to give me a position for the following two years from ’07 to somewhere in ’09 (in the hardware department) so that wasn’t the same work. Mr Pocock‑Davies has been my supervisor for 15 months, he’s probably been there less than two years … so following that I was in the hardware, where there’s no big planks and no lifting of cement sheets and all that sort of stuff, for two years, and then after that I was asked to go into the position of what we call indoor timber which are the lesser heavy sheets of timber and smaller pieces and things and that’s what I still do now.”[10]
[10]Transcript (“T”) 31, L12-31
·In relation to reduction of working hours, Mr Lloyd stated:
“I wrote a letter to Bunnings Rosebud and asked for part time work, changed to part time and I said it’s because of my back. It’s there in my letter so – and also from the financial point of view, I qualified for the pension, part pension, so that allowed me to do it. I had just been waiting for that so I could actually work less.”[11]
[11]T32, L17-23
·In relation to the work performed, Mr Lloyd agreed that at the time of the accident, he was working
“… four days a week … less than 30 hours … from 2007 up until the time he reduced his hours (January 2014). He earned more every year from 2007 until 2014 … it went up slightly – like normal increases.”[12]
[12]T33, L1-16
·In September 2007, he accepted a job in indoor timber that was a full time job to avoid going “at some stage back into the timber yard”.[13]
[13]T33, L20-26
·Mr Lloyd’s wife has got a bad back and has had surgery and Mr Lloyd was the gardener in the house. The garden is neat and if there are jobs to be done around the house, he does them.[14]
[14]T34, L6-13
·Mr Lloyd goes for walks about 5 or 6 kilometres up to four times per week which is a pattern he has been following for years.[15]
[15]T35, L27-31 and Exhibit A, page 42
·Mr Lloyd agreed it was quite pleasant walking along the beach from time to time. It was his chosen exercise.[16]
[16]T36, L5-6
·Mr Lloyd has three cars including a 1969 MGB described as his “hobby car” which he tries to get out into every now and again.[17]
[17]T36, L11-26
·Mr Lloyd still owns a Herron gaff rigged sailing boat which is kept under a cover at the front of his garage. He has barely tried sailing it since his injury.
“I have been on other people’s boats and it’s uncomfortable.”
He had last sailed:
“… quite some years ago … since the accident but I don’t know, probably ‘08/’09, something like that.”
·He had not tried taking his own boat out.[18] He could not sail because:
[18]T37, L28 – T38, L9
“I mean you have to go right forward and lean over, which I now hate doing. All that sort of thing. It wouldn’t be an enjoyable experience anymore.”[19]
[19]T38, L23-26
·Mr Lloyd still did a bit of woodworking:
“The last time I did it was only within the last six months. … 15 minutes or so, my back was so sore I have to take a break. So it’s not an enjoyable experience like it used to be.”[20]
·Mr Lloyd agreed he had reduced his working hours in January 2014 and had not taken days off work because of back pain. He had only taken normal holidays and vacations including attending a trip to Bali to attend his son’s wedding.[21] He had travelled to England in 2012:
“The plane trip was horrible.”[22]
Mr Lloyd described the difficulty with the long aircraft journey in more detail:
“Sitting in any chair for a long period of time, I do get a niggling back and it is quite painful. It goes up towards the shoulders as well. But around the back of the hips. So sitting down for long periods of time and standing on the spot is just as bad. I like to move.”[23]
·Mr Lloyd denied any depression or anxiety, confirmed that he slept soundly and led an active social life.[24]
·Mr Lloyd agreed that he has only minor symptoms from the injuries to his finger, his chest and his pelvis.[25]
·In relation to his back, he was aware of some level of pain all of the time:
“It’s a pressure and it’s slightly uncomfortableness and then like now, there’s a niggling pain sort of thing going up a little bit.”[26]
[20]T39, L4-6
[21]T40, L4-7
[22]T40, L11-13
[23]T41, L9-14
[24]T41, L26-29
[25]T42, L6-28
[26]T43, L6-8
Medical issues
20 The defendant has challenged the existence of any back injury resulting from the incident which occurred on 23 March 2007. Mr Ian Jones, orthopaedic surgeon, first provided a report to the defendant’s solicitors on 22 July 2013.[27] In that report, Mr Jones stated:
“In the lumbar spine, although there was seemingly no direct injury to his lower back, the patient’s complaints are consistent with mild degenerative disease affecting his lumbar spine manifesting as some lumbar back ache and stiffness.”[28]
[27]Exhibit 1, pages 3 – 9
[28]Exhibit 1, page 8
21 Although Mr Jones expressed an opinion as to prognosis in that report, he conducted a re-examination of Mr Lloyd and prepared a further report on 10 October 2014.[29] In that report Mr Jones commented:
“This man’s presentation is entirely consistent with the injuries described in my report and x‑ray investigations undertaken.”[30]
[29]Exhibit 1, pages 9A – 9D
[30]Exhibit 1, page 9C
22 In relation to the prognosis from the lower back condition, he stated:
“The patient’s lower back condition, although not directly injured by the accident, given his symptoms and the patient’s age is likely to slowly deteriorate simply with the passage of time diminishing his ability to lift, bend and carry. Increasingly the patient is finding back stiffness a problem particularly after repeated bending and especially with lifting and prolonged sitting. Ideally he should avoid lifting weights of greater of than 5 kilograms and simultaneously bending, although he could lift weight of 10 kilograms from bench level.”[31]
[31]Exhibit 1, page 9D
23 The final position of the defendant on the causation issue relied heavily upon the absence of any recorded complaint concerning back pain apart from brief references in 2007.[32]
[32]Exhibit A, page 21 and Exhibit 1, page 30 and 31
24 The contemporaneous material from the plaintiff’s attending practitioners includes a report from Mr Blythe, physiotherapist, dated 6 March 2013.[33] That report notes apparent stabilisation of the plaintiff’s injuries from his last consultation in late 2010.[34] It also makes reference to the notes recording episodes of discomfort and low grade back pain during 2007.[35]
[33]Exhibit A, page 23 – 27
[34]Exhibit A, page 27
[35]Exhibit A, page 26
25 The report provided to the plaintiff’ solicitors from The Alfred Hospital dated 4 January 2013 made no note of Mr Lloyd’s progress subsequent to 11 May 2007. There was no specific reference to back pain contained in that report.
26 The general practitioner, Dr Amarasinghe, had provided three reports between 6 February 2013 and 16 October 2014.[36] He also gave evidence before me and was cross-examined. Dr Amarasinghe expressed the following opinion concerning the back injury in his most recent report of 16 October 2014.
“Mr Lloyd’s back injury (crushing) is directly related to the pelvis and multiple bilateral rib fractures. This has caused him to suffer degenerative pain of his lower back and pelvis which is not getting better despite him cutting down his hours of work from full time to part time and regular exercise.”[37]
[36]Exhibit A, page 28 – 32B
[37]Exhibit A, page 32A
27 I noted the following matters in cross-examination as relevant to the question of causation:
·He had first seen Mr Lloyd on 19 April 2011 following the accident and noted back pain for the first time on 22 June 2007.[38]
·There were a number of further consultations but no reference to back pain in the doctor’s notes until 24 November 2011.[39]
·Dr Amarasinghe was not the one treating Mr Lloyd for his back pain but had gone on treating him for his other health problems.[40]
·He had not referred Mr Lloyd for any investigations because of the back “because of the clinical grounds” and had not referred him for any specialist treatment:
“There’s no specialist treatment that will require him to have anything because he’s got from the Alfred Hospital reports, he has got no facet joint or … discs and he has got clinical neurological symptoms so therefore there is no point seeing orthopaedic surgeon for surgical interventions.”[41]
·Dr Amarasinghe expressed the view:
“At the moment … he knows there’s no cure for his back pain so therefore he’s got to learn to live with it by doing occasional physiotherapy and changing his lifestyle. He’s given up smoking, lost weight and keeping fit and regular exercise.”[42]
·The diagnosis of injury to the back was:
“soft tissue trauma” … he was pinned down next to the shelf and then twisted around and crushed into the wall with a forklift, and that causes soft tissue injuries which is the tissue outside. The force, sort of trauma is so severe that it goes from the muscles into the bones and give the bones – so the whole area is pulverised.”[43]
[38]Transcript (“T”) 56, L15-26
[39]T58, L6-15
[40]T64, L25-27
[41]T65, L25 – T66, L2
[42]T66, L8-13
[43]T67, L19-29
28 Dr Amarasinghe was further cross-examined in relation to the consequences of the back injury for Mr Lloyd. I noted the following evidence relevant to that topic:
·The doctor was unaware of the closure of the occupational rehabilitation file on 20 December 2007 as Mr Lloyd was working full hours in the builders’ hardware area.[44] (In response to my question on a similar topic the doctor stated “I was aware that he could not carry on with that job. That’s why he was given the other option of working in the garden area which is much more lighter work.)[45] He could not accurately say whether that was in 2007 or four or five years later.[46]
[44]T68, L29 – T69, L9
[45]T69, L28-31
[46]T70, L3-8
·Dr Amarasinghe believes that after the closure of the rehabilitation file the case was reopened but had no material on his file.[47]
[47]T70, L27 – T71, L5
·The doctor had changed from manual records into computer records at around that time.[48]
[48]T71, L17-19
·If Mr Lloyd had wanted time off at the time the doctor recorded “lower back pain wanting time off”, Dr Amarasinghe would have given him a WorkCover certificate.[49]
·In relation to a note recorded in February 2013, “due to traumatic nature of the injuries, Mr Lloyd is likely to have more pain and disability in time as he will develop arthritis secondary to trauma”, he was referring to any joint including the lumbar spine or a facet joint.[50]
·Although he did not have x‑ray material following the Alfred Hospital, his diagnosis was based on “patient’s objective feelings, his pain, and his inability to carry on working in the same job.”[51]
·He agreed that the clinical diagnosis is based on the history the patient had given him as there was no diagnostic material available after 2007.[52]
·He agreed that his opinion regarding the progress of degenerative changes was based on what Mr Lloyd had told him at two consultations in November 2011 and April 2012.[53]
·Dr Amarasinghe had not referred Mr Lloyd to an orthopaedic specialist:
“He does not require any orthopaedic or a neurosurgeon or pain management specialists because he has got no chronic pain, he is getting episodic pain there, he’s treating it correctly and self-management, does what WorkCover’s telling us to do and self-manage.”[54]
·Mr Lloyd was reluctant to take strong painkilling medication and he takes simple analgesics which is quite a enough for him to manage being Panamax and Panadol Osteo. Panamax was on a prescription, Panadol is available over-the-counter.[55]
·The doctor agreed in cross-examination that lifestyle changes had been made as a method of treatment.[56]
[49]T71, L22-28
[50]T74, L19 – T75, L3
[51]T75, L22-24
[52]T77, L8-18
[53]T78, L24-30
[54]T81, L21-26
[55]T82, L1-15
[56]T83, L27 – T84, L4
29 The medico‑legal material relied upon by the plaintiff includes two surgical reports addressed to CGU Workers Compensation. The first of these is from Mr M A Khan, orthopaedic surgeon, dated 14 August 2007.[57] The second report is from Dr I E McInnes dated 15 December 2011.[58] Somewhat curiously, a report from the psychiatrist Mr Kaplan was obtained on 30 May 2014 and is also included in the plaintiff’s material.[59] Apart from recording histories of back pain suffered by the plaintiff since the date of the accident, none of these reports was of any real assistance in resolving the issues before me.
[57]Exhibit A, pages 33 – 40
[58]Exhibit A, pages 53A – 53G
[59]Exhibit A, pages 46 – 53
30 The only up-to-date medico-legal report was that provided by Mr Michael Fogarty, orthopaedic surgeon, in May 2014. Mr Fogarty recorded a history of low back pain persisting since the date of the accident, and noted that the pain was variable and felt just about waist level, “sometimes going up his spine”.[60] His opinion was that the plaintiff had suffered a soft tissue injury to his low back, and he noted this injury as well as the injuries to the ribs and pelvis as being consistent with the stated cause. Although he regarded the prognosis as good, he expressed the opinion:
“It is likely that Robert Lloyd will continue to have some symptoms related to these injuries as it is now seven years since the injuries were sustained.”[61]
[60]Exhibit A, page 43
[61]Exhibit A, page 45
31 The defendant relied upon two medical reports from Mr Ian Jones, orthopaedic surgeon, dated 22 July 2013 and 10 October 2014. Mr Jones had conducted two examinations of the plaintiff prior to preparing his reports.
32 In his report dated 22 July 2013, Mr Jones stated as follows:
“In the lumbar spine, although there was seemingly no direct injury to his lower back, the patient’s complaints are consistent with mild degenerative disease affecting his lumbar spine manifesting as some lumbar backache and stiffness ... The patient’s lower back symptoms of backache and stiffness are suggestive of some early degenerative disease in this area and would be aggravated by any work which requires extremes of bending or lifting.”[62]
[62]Exhibit 1, page 6
33 He went on to describe the likelihood of these symptoms slowly increasing with age and placing further limitations on the plaintiff. He noted repeated bending, prolonged walking or standing in the one position as being likely to exacerbate both the back and groin symptoms.[63]
[63]Exhibit 1, page 9
34 Mr Jones expressed a very similar opinion in relation to the plaintiff following his second examination, and also commented:
“This man’s presentation is entirely consistent with the injuries described in my report and the x‑ray investigations undertaken.”[64]
[64]Exhibit 1, page 9C
35 He confirmed that he regarded the lower back condition and its symptoms as likely to further restrict Mr Lloyd with the passage of time. He described the back as the source of physical restrictions relating to Mr Lloyd’s ongoing employment.[65]
[65]Exhibit 1, page 9D
Analysis
36 I regarded the plaintiff as a reliable witness who made no attempt, in my assessment, to exaggerate his disability or to mislead the court as to the extent to which the ongoing effects of his lower back injury impacted upon his lifestyle. Consistent with my own assessment was the tendering of the index from the defendant’s further amended Court Book which made reference to video surveillance which was ultimately not shown to the plaintiff in evidence.[66] Further, the comment made by Mr Jones at the time of his assessment (to which I have referred) in October 2014 is also consistent with my assessment of Mr Lloyd.[67]
[66]Exhibit B
[67]Exhibit 1, page 9C
37 The question of causation of a low back injury and its ongoing consequences is to be resolved in the plaintiff’s favour by application of the analysis referred to in Grech v Orica Pty Ltd & Anor.[68] The medical opinion of Mr Jones in particular supports the evidence of Dr Amarasinghe and the plaintiff himself that a low back injury occurred as a result of the incident on 23 March 2007. The consequences of such injury have as a matter of probability worsened with the passage of time. This is also consistent with the medical evidence which predicts a gradual worsening with time.
[68](2006) 14 VR 602 at [55] – [58]
38 As to consequences, I was referred in the final address on behalf of the defendant to the decision of the Court of Appeal in Aburrow v Network Personnel Pty Ltd[69] as to the methodology that should be undertaken in evaluating the “pain and suffering consequence”. In that case reference is made in particular to the earlier decisions of the Court of Appeal in Haden Engineering Pty Ltd v McKinnon[70] and Sutton v Laminex Group Pty Ltd.[71]
[69][2013] VSCA 46
[70](2010) 31 VR 1
[71](2011) 31 VR 100
39 On this issue, Mr Miles submitted that the evidence in the present case fell significantly short of the threshold required for leave to be granted when examined against an appropriate objective template as had been set out by the Court of Appeal initially in Haden and subsequently adopted in Sutton and Aburrow.
40 I agree that it is appropriate in cases of this type, seeking leave in respect of pain and suffering consequences of a back injury, to adopt an appropriate analytical and objective evaluation. The authorities referred to are binding on me. In the present case I accept that Mr Lloyd suffers from a relatively constant, though variable, pain emanating from his low back. I accept that he takes pain-relieving medication, but on a relatively infrequent basis, and tends to avoid aggravating factors which time and experience has no doubt taught him. I accept also that he has modified many aspects of his day-to-day recreational activities in order to minimise or limit the circumstances in which his low back pain is aggravated or re‑enlivened.
41 Mr Lloyd was 65 years of age at the date this application proceeded. He was at that time living with his wife in the bayside area of McCrae. He had given evidence, which I accept, that as a consequence of his back injury he has been unable to return to his hobby of sailing or taking out a surf-ski for a paddle. His affidavit evidence also supports a conclusion that the consequences of the back injury have also impacted to a very large extent on his hobby of woodwork. These consequences are supported by the affidavit sworn by his wife, who was not required for cross-examination.
42 I do not find that the actual pain experienced by Mr Lloyd is of a sufficient quality as to justify the description of “at least very considerable”. This is consistent with the absence of recorded complaints to his general practitioner over a considerable period, and also the limited amount of treatment obtained. It seemed clear from Mr Lloyd’s presentation before me that he is quite a stoic individual.
43 The consequences in terms of the pain alone would not justify a grant of leave. When I take into account his age and stage of life, I regard it as particularly significant for him that his chosen hobbies of woodwork, sailing and, to a lesser extent, surf-ski riding, have been severely diminished or lost.
44 I have specifically not taken into account the reduction in working hours as a consequence for the purposes of assessing his pain and suffering consequences resulting from the back injury. I have no reason to reject the evidence set out in the affidavit of Mr Pocock-Davies sworn 4 September 2014. Indeed, I am prepared to accept that as a matter of probability Mr Lloyd made no particular reference to the consequences of his back pain in discussions with his employer. In my assessment it is unsurprising that a man of relatively advanced years would make no reference to any worsening back condition in discussion with his employer. The cross-examination of the plaintiff in relation to his ongoing employment was such that I would conclude that the changes that have occurred in his workplace environment are of relatively minor impact in terms of the plaintiff’s ongoing back symptoms.
45 I am satisfied that the consequences of relatively constant back pain, albeit at a level that would not of itself satisfy the threshold test, have impacted on Mr Lloyd’s recreational activities in a manner that has had dramatic effect on his amenity of life that can fairly be described as at least very considerable.
Conclusion
46 I am satisfied that the plaintiff has made out his entitlement for leave in respect of the pain and suffering consequences of his low back injury. I propose to grant leave for the plaintiff to commence a damages proceeding in accordance with the provisions of s134AB(16)(b) of the Act on the basis that the injury to his low back is a serious injury as defined.
47 I will hear the parties in relation to formal orders and the question of costs.
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