Ly v RMS Distribution Services Pty Ltd

[2013] VCC 1821

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-12-04450

VINH DIEN LY	Plaintiff
v
RMS DISTRIBUTION SERVICES PTY LTD	Defendant

---

JUDGE:

HIS HONOUR JUDGE JORDAN

WHERE HELD:

Melbourne

DATE OF HEARING:

4 and 6 November 2013

DATE OF JUDGMENT:

11 November 2013

CASE MAY BE CITED AS:

Ly v RMS Distribution Services Pty Ltd

MEDIUM NEUTRAL CITATION:

[First revision 26 November 2013]

[2013] VCC 1821

REASONS FOR JUDGMENT
---

Subject:  ACCIDENT COMPENSATION
Catchwords:               Serious injury to the low back
Legislation Cited:      Accident Compensation Act 1985, s134AB

Cases Cited:Transport Accident Commission vZepic [2013] VSCA 232; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Elias v Transport Accident Commission [2013] VSCA 123; Aburrow v Network Personnel [2013] VSCA 46

Judgment:                   Application dismissed.      

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A Ryan	Slater & Gordon Ltd
For the Defendant	Mr M K Clarke	Herbert Geer

HIS HONOUR:

1 This application for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for damages relies on the definition in paragraph (a) of s134AB(37). The injury relied on is aggravation of degenerative changes in the low back impairing the function of the low back.

2       The defendant concedes the plaintiff suffered a compensable injury to the low back.[1]  The single discrete issue for determination is whether the plaintiff has discharged the onus of proving the consequences of the impairment meet the test of “serious”.  I find he has not discharged that onus. 

[1]Transcript (“T”) 8

3       The plaintiff is fifty-five years of age.  He came to Australia in 1985.  He started work with the defendant in April 1999.  He relies on reported incidents of low-back symptoms on 21 December 2005,[2] 1 March 2006[3] and 30 July 2006.[4]

[2]Plaintiff’s Court Book (“PCB”) 70

[3]PCB 71

[4]PCB 72

4       He is currently on a disability pension, having ceased work in 2007 due to neck and bilateral shoulder injuries.[5]  I do not have any evidence with respect to what injuries qualified the plaintiff for the disability support pension he has now been on for several years.

[5]PCB 10

5       A serious injury application was lodged on 15 December 2009 for the injuries to his neck and his shoulders suffered in the course of his employment.[6]  I will refer to it as the first serious injury application.  In an affidavit, sworn in December 2009, the plaintiff sets out the circumstances and the extent of this impairment.[7]  A serious injury certificate was granted.[8]  That claim was then the subject of a common law settlement on 6 August 2010 whereby the plaintiff received damages for the injuries to his neck and shoulders.[9]

[6]Defendant’s Court Book (“DCB”) 6

[7]DCB 11

[8]T21

[9]T4

6       The current proceedings flow from a serious injury application that was then lodged on 14 May 2012.  As indicated, the injury is a low-back injury, probably best described as aggravation of degenerative changes in the low back.  This is thus the second serious injury application. 

7       Recently the Court of Appeal has recognised what has been the position in this jurisdiction for many years.  The neck and low back can be aggregated, in the sense that it is the impairment of the function of the spine that is properly considered in such circumstances.[10]

[10]Transport Accident Commission vZepic  [2013] VSCA 232 at paragraphs 136-139

8       The affidavit of the plaintiff’s solicitor explains, to some degree, why the back injury was not included in the first application.[11]  However, it does not assist in determining whether any consequences of that injury can be fairly described as “very considerable”.

[11]PCB 17-33

9       At the end of submissions I raised the question whether any determination was required of the legal position when there had already been a serious injury application for the neck and now there was one before the Court for the low back.[12]  In other words, the impairment of function of the spine was in a sense being compartmentalised.[13]  The defendant then raised an argument that this was not permissible and a further application was not open to the plaintiff.[14]  The parties then asked for some further time to consider this matter. 

[12]Section 134AB(21)

[13]T51-52

[14]T55

10 On the second day of the hearing, the defendant indicated that there was no point being taken about the cause of action being the same, nor about any prohibition under s134AB(21).[15]

[15]T56-57

11      The parties repeated that the single issue for the Court is whether or not the low-back injury and the impairment of the spine function that it has caused has resulted in or materially contributed to consequences that can be fairly described as “serious”.  The plaintiff puts the case in two ways: 

12      Firstly, he relies on the principle that two or more compensable injuries can be a legally sufficient cause of the same consequences.  A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[16]  In other words, the plaintiff relies on the consequences caused by the injuries in the first serious injury application as also being caused by the subject low-back injury.  This is essentially a causation issue given that “serious injury” has already been conceded with reference to the neck and shoulder conditions.

[16]Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 at paragraphs 57-58

13      Secondly, the plaintiff points to some consequences that are unique to the lower back condition.  Examples are difficulties with respect to sitting and standing for any length of time, as well as limitations on walking distances.[17]

[17]PCB 11

14      It has been stated that the judgment of the seriousness of consequences involves grappling with “… the imprecise and impressionistic criteria in the so-called ‘narrative test’”.[18]  Moreover, the decision in evaluating consequences against the range of possible impairments is one involving elements of fact, degree and value judgment.[19]

[18]Transport Accident Commission v Zepic (supra) at paragraph 145

[19]Elias v Transport Accident Commission [2013] VSCA 123 at paragraph 61

15 I note the recent appeal of s134AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied the repeal. Nevertheless, clear, proper and adequate reasons are required. It has been said often that some serious injury applications involve a substantial amount of “value judgment” which does not, of itself, admit detailed reasoning that is explicit in certain cases.

16      In determining whether or not the injury to the low back has caused the consequences, I have been particularly disadvantaged in this case from not hearing any viva voce evidence from doctors.  The Court is left with very brief medical reports and a task of determining what contribution, if any, the low-back injury has made to a number of consequences clearly caused by the neck and shoulder problems, as well as the additional unique consequences the plaintiff relies on. 

17      The task seems to involve an examination of the level of pain caused by the low-back injury and this involves, of course, what the plaintiff says about his pain as well as what the doctors indicate.  The assessment of the experience of pain involves a number of approaches that can be used in looking at the evidentiary basis of the pain assessment.[20]

[20]Aburrow v Network Personnel [2013] VSCA 46 at paragraph 11

18      The level and extent of any treatment is also relevant as it is an indication of what the plaintiff does about the pain being complained of.  In terms of looking at the clinical notes, it is almost guesswork at times as to what a prescription for painkillers, for example, has been provided for in terms of the neck, the low back, the right or left shoulder or a combination of some or all. 

19      I found the plaintiff to be quite a frank witness who conceded that he is still suffering constant and nagging pain in the right shoulder with similar symptoms in the left.  He also continues to suffer neck pain and stiffness.[21]

[21]T19

20      A comparison of the two affidavits is informative.  The first one, which was tendered in the first serious injury application, was sworn on 10 December 2009 and refers to injuries suffered in the course of his physical duties handling boxes.[22]  It makes no reference at all to any pain from any low-back condition.  The significant extent of the constant and nagging pain in his shoulders and neck is set out.[23]  The consequences on his work, sport, home and gardening life, as well as fishing, are described.[24]  In his evidence, he said the severe limitations on activities caused by these injuries were still continuing.[25]  The affidavit describes the treatment required for the injuries in the first application as referral to specialists, shoulder surgery, physiotherapy, hydrotherapy and narcotic pain medication.[26] 

[22]DCB 12

[23]DCB 13

[24]DCB 14

[25]T15

[26]DCB 12-13

21      The plaintiff’s affidavits sworn in the second application are dated 1 May 2012 and 18 October 2013.  The consequence of ceasing employment was clearly due to the neck and shoulder condition in 2007.[27]  The plaintiff describes that at that time, he was experiencing pain and problems in his lower back, which continues to the present time.[28]  However, I am unable to be satisfied that the low-back pain had anything to do with his ceasing employment.  I accept that he may have been suffering from lower back pain at the time, but I am not persuaded that the plaintiff has discharged the onus of indicating it had any causative connection with him ceasing work.  The affidavit in his first application also clearly refers to the neck and shoulder pain resulting in him being certified off work.[29] 

[27]PCB 10

[28]PCB 10

[29]DCB 12-13

22      Looking at the question of what treatment has been required for the low back also leaves a state of uncertainty about the evidence that has been presented.  On the second application, his affidavits seek to establish that the conditions that required, and still require narcotic painkilling medication, include the lower back, as well as the neck and shoulders.[30]  The affidavit on the first application only refers to the need for such medication for neck and shoulders.[31]  The back is not mentioned.  Similarly, with respect to physiotherapy and hydrotherapy, the first affidavit relates those treatments to the neck and shoulders.  His lower back is now described as requiring physiotherapy and hydrotherapy.[32] 

[30]PCB 10-11

[31]DCB 13

[32]PCB 10

23      Some questions were directed to him in relation to commencement of hydrotherapy and what it was for.[33]  On all the evidence, I am not satisfied that either of these therapy treatments is focussed on the low back.  I accept that when he has required physiotherapy and hydrotherapy for his shoulders and neck problems, that some treatment may well be given to the lower part of his spine by the therapist, but I do not accept that that indicates any level of pain in that area that is very serious.

[33]T13-15

24      The prescriptions for painkillers, when one looks at the clinical notes without hearing from any doctors, seem to be at times for back pain, right hip pain as well as the neck and shoulder problem.  I assume the “chronic condition” being referred to in 2010 is that of the neck and shoulders.[34]

[34]PCB 74-81, in particular PCB 74

25      Again, while I accept he may well take Panadeine Forte, partly for his low-back pain, as well as his neck and shoulders and his right hip problems, I am not satisfied that this fairly sporadic prescription medication indicates any severity of low-back pain.  The evidence is not clear.

26      There has been no referral to specialists that I can discern from the clinical notes or the medical reports for the treatment for low-back pain.  He has been sent for specialist pain management treatment to Dr Clayton Thomas on account of pain that seems to be in the neck and shoulders.[35]  A suggestion in relation to pain management included a possible referral to a Vietnamese psychologist; however, that does not appear to have taken place. 

[35]PCB 75

27      Treatment for the low-back injury does not, of itself, seem to have involved any regime indicative of serious pain at that level of the spine.  It is not clear, with respect to the clinical notes, whether the reference to right hip problems is another injury, in addition to the low-back condition that is impeding him or is in some way referred from the low back.  A TENS machine, which was provided to him by a physiotherapist in the past is referred to in the notes, but I assume that by the reference to the past, the general practitioner is alluding to a TENS machine required for neck and shoulder symptoms.  Again, the note is unclear.  He is said to take fish oil capsules for his joint pains and it is again near guesswork as to what joints are being referred to.  Doing the best I can without hearing from any doctors, neither the medical reports nor the notes point to any level or extent of treatment that could be said to reflect a low-back condition that has very considerable consequences.  The better view is that he is probably having some treatment for the lower back but it is really treatment organised for and dictated by the injuries to his neck and shoulders and possibly also to his right hip in more recent times.

28      The radiology in this case, with respect to his lower back, does not establish anything more than some degenerative changes in the spine of a fifty-five-year-old labourer who has performed physical work over many years.  There is no frank pathology that, of itself, would point to a conclusion of serious levels of pain and disability.  It is radiology describing a background of degenerative changes at a number of levels that from 2007 through to 2012 are mostly described adjectivally as “mild”. The language used is not determinative but it is also not indicative of major pathology.[36]  Importantly, while some discogenic involvement is referred to as “slightly prominent”, there is no nerve root impingement detected in the last MRI taken.[37]

[36]PCB 64-69

[37]PCB 64

29      The clinical notes in relation to the plaintiff’s back end at 1 August 2012.[38]  I must judge the plaintiff now, some fifteen months on from the last of those notes.

[38]PCB 81

30      The treating general practitioner, Dr A S Ansari, provided five reports, as well as the clinical notes.  He first saw the plaintiff for “…this claim on 6 June 2007”[39] and gives a comprehensive report dated 12 November 2008.[40]  He describes the radiology, the referrals to specialists – Dr Thomas and Mr Simon Bell – other treatment by way of physiotherapy, exercise program, injection treatment, hydrodilatation, narcotic painkilling and anti-inflammatory medication.  He reported that the prognosis was poor and the plaintiff would never be able to work again.  He noted the constancy of pain and consequences included not being able to drive a car or even brush his teeth, as well as the inability to sleep.  Nowhere is there any mention of back pain. It is all descriptive of the neck and shoulder problems.

[39]PCB 34

[40]PCB 34-36

31      In a February 2009 report, he recorded a lower back history from the 21 December 2005 incident.  The plaintiff received no medication for that and apart from physiotherapy no other treatment was recorded.  The plaintiff returned to normal duties.[41]  Then the second incident on 1 March 2006 occurred where no treatment was given and the plaintiff continued working normal duties.  The third incident that is relied on occurred on 30 June 2006 when a doctor notes the pain subsided after the taking of some painkillers.  He recorded the plaintiff went back to work on normal duties.[42]

[41]PCB 37

[42]PCB 37

32      He recorded problems with sitting and standing.  He described the radiology which largely used the terms “mild” or “moderate” in relation to degeneration.  He thought the back pain was masked by the neck and shoulder condition initially.[43]  When he last saw the plaintiff in February 2009, he thought the back pain was likely to settle in time.[44]

[43]PCB 38

[44]PCB 39

33      The next report is on 26 July 2010.  The focus was clearly on the ongoing extensive disabilities the neck and shoulder injuries were still causing.[45]  The pain was persistent.  The condition was permanent. The plaintiff was permanently unable to work.[46]

[45]PCB 40

[46]PCB 41

34      He then added:

“He also has a separate complaint about a lumbar spine injury and the right hip.  It seems that around October 2007, he stated that he also experienced lower back pain and right hip pain.”[47]

[47]PCB 41

35      He then repeated what was previously said about the three incidents.  Sitting and standing for too long were the main issues that he described.[48]  The radiology was referred to as a right hip problem that was “possibly” referred from the back.[49]

[48]PCB 42

[49]PCB 42

36      The 5 March 2012 report essentially repeated the history of treatment but also said the plaintiff “… initially ignored his back condition as his neck and shoulder condition was worse than his back”.[50]  At the time he only took painkilling medication when his pain was severe.  He thought the prognosis was guarded and hydrotherapy was an option.[51]  He lists the effects on the plaintiff’s lifestyle, which I assume relate to the back, as this report was specifically directed to the back injury.[52]  However, he gave a summary of all these problems and I do not read these as all relating to the lower back in a causative sense.  For example, his inability to drive, no longer participating in any sport such as soccer that he enjoyed previously with his children are two examples of complaints previously recorded in a context of his earlier claim.[53]

[50]PCB 45

[51]PCB 45

[52]PCB 44

[53]PCB 46

37      When I compare this list in March 2012 with that mentioned back in 2008 with respect to the neck and shoulders, I do not accept that the doctor was relating all of these causatively to the back injury.[54]  He used the word “injuries” when describing these effects on lifestyle. 

[54]PCB 35 and 40

38      There are other examples of the difficulty in construing the reports.  Dealing with the neck and shoulders in 2010, the doctor recorded that the plaintiff was “… unable to participate in any social activities”.[55]  Then, in 2012, “Even going out with friends is a rare thing now”.[56]  This is in the context of the back injury report.[57]

[55]PCB 40

[56]PCB 46

[57]PCB 44

39      I read the general practitioner’s comments under the heading “Effective injury on lifestyle” as painting the total picture of his patient as a result of all his injuries.[58]  I have not heard from this doctor and the state of his evidence makes it difficult to draw positive conclusions.

[58]PCB 46

40      He has already expressed a view that the plaintiff is out of the workforce caused by the neck and shoulder injuries.  The plaintiff said as much.[59]  When it comes to lifestyle or pain and suffering consequences, the general practitioner is really bundling up the whole injury picture, it seems, on a reading of all his material, including the clinical notes. 

[59]PCB 10

41      The final report from this doctor is on 23 October 2013.  Read with the notes that last mention the back in August 2012, this last report does not take the matter much further.  He thought the plaintiff would continue to need medication and physiotherapy.  He now describes radiation of pain to the hip and again comments on the effects on lifestyle.  However, when one looks at the consequences that the neck and shoulder have caused, it is still not clear that the causative link to the lower back is made out on the material from this doctor.[60]

[60]PCB 35, 40 and 41

42      I accept the low back causes the plaintiff to be unable to sit or stand for too long.[61]  However, the general practitioner’s reports do not sufficiently disentangle these compensable injuries to make it clear that the back pain causes any other consequences.  He bundles them all up it seems.  The treatment for the back is minimal with no referral to any specialist or for pain management of that problem.  The radiology does not describe any gross pathology.

[61]PCB 38, 42 and 49

43      The medico-legal report of Mr David Brownbill of 16 August 2013 records a history of different injuries to those the plaintiff relies on it seems.[62]

[62]PCB 70-72; T37, 57-58

44      He notes four incidents.  He records a fall down to the floor in about 2004-2005; picking up a carton of leaflets in 2004-2005; problems driving a forklift pre-Christmas with no year mentioned, and finally, in January 2007, moving cartons.  Whether these comprise the three incidents the plaintiff relies on is unclear.  The plaintiff relies on 21 December 2005, “picking a box leaning over a pallet”[63], then on 1 March 2006, “picking a stock in a confined space”,[64] and finally, on 30 June 2006, “lifting some big boxes for interstate orders”.[65]  The plaintiff was not asked about any of this in examination-in-chief or cross-examination. 

[63]PCB 70

[64]PCB 71

[65]PCB 71

45      The history Mr Brownbill relies on, thus, is unclear and it is of limited help in this case with its specific reliance on three incidents, rather than the general “in the course of employment” approach.[66]

[66]T37, 56-58

46      Surprisingly, he took no history at all of the plaintiff’s other injuries to the neck and shoulders save for one brief reference to shoulder pain.[67]  He noted the plaintiff had been “… well without any past accidents, illnesses, injuries or operations”.[68]  This is erroneous.  His note about ceasing work in June 2007 is in the context of the low back and not any other injuries.  This is also plainly wrong.[69] 

[67]PCB 51

[68]PCB 50

[69]PCB 51

47      The opinion of Mr Brownbill is of limited use.  He has not been given anything like a proper history of when and how the plaintiff’s low-back problems arose and he seems to rely on the low back putting the plaintiff out of the workforce.  He diagnosed probable aggravation of degenerative changes, and that is consistent with other evidence, but he also considered the plaintiff fit for alternative duties with respect to this back injury.[70]

[70]PCB 53

48      The restrictions he put on work also apply to “…social, domestic and recreational activities.”[71]  He nowhere says what these social, domestic or recreational activities are.

[71]PCB 54

49      He referred to documentation enclosed in a letter of 11 July 2013 but did not list that documentation and the letter was never tendered.  Either way, this doctor’s opinion is not based on a sound footing with respect to the plaintiff’s medical history, how and when the back was injured and why he went off work.  It is unclear what documents Mr Brownbill was sent. In a jurisdiction where written reports are relied on virtually entirely, it is important that the histories are comprehensive and accurate.

50      In spite of the deficiencies in the information he had, including the erroneous understanding of the plaintiff ceasing work in 2007 apparently for the back, Mr Brownbill nevertheless found the back injury does not prevent the plaintiff working now, so long as he observes certain activity restrictions.[72]  He puts no limit on this capacity by way of hours or part-time work.  I infer from that, the report is saying the plaintiff is fit for full-time suitable employment.  In his opinion there is no pecuniary disadvantage proven that would qualify as “serious”.  On the loss of enjoyment of life consequences, he gives no more than the generic statement that the restrictions “…will apply in the future also to his several domestic and recreational activities”.[73]  I do not accept this broad sweeping comment as evidence that such restrictions or activities, whatever they may be, amount to very considerable consequences. 

[72]PCB 54

[73]PCB 54

51      Mr Kenneth Brearley, orthopaedic surgeon, reported in 2012 and again in October 2013.  He had only been sent one report of Dr Ansari initially, together with radiology.[74]  Clearly, there were other documents he should have been given for a proper medical history, including the plaintiff’s affidavit of 10 December 2009, in order to fully understand the plaintiff’s difficulties.  He is asked to comment on the lumbar spine injury.[75]

[74]PCB 56

[75]PCB 59

52      The first report records treatment as only occasional Panadeine Forte and using a TENS machine.  The prognosis was fair.  The back, of itself, was unlikely to prevent a return to some suitable work.[76]  He described the back injury’s impact on daily living and it preventing the plaintiff from certain activities. 

[76]PCB 59

53      The second report refers to further documentation forwarded but it is still not a complete list of medical material available at that time.  The level of treatment involved some hydrotherapy for neck and back and physiotherapy had ceased at that time.  A few days a week heat packs and a TENS machine are reported as being used, together with painkillers when the pain is more severe.  He thought conservative treatment would be needed with simple analgesics.[77]  He had noted the usage of narcotic painkilling medication, Panadeine Forte, in February 2012 but in this second report last month he seems to be saying a lesser painkiller is required.[78]  The limited medication in any event is not consistent with a level of back pain that could be said to amount to a very considerable consequence.

[77]PCB 62

[78]PCB 62

54      He repeated restrictions on lifestyle but noted that the plaintiff can now do a little dishwashing when, in 2012, he could not help his wife with housework it seems at all.[79]  It was now the heavier aspects of housework that he cannot do. 

[79]PCB 60 and 63

55      Mr Brearley also concludes the low-back pain “…should not interfere with his return to some form of suitable work in the medium term”.[80]  He adds no hour restrictions or part-time qualification.  I conclude he is saying the plaintiff is fit for full-time suitable employment.  He does not support any impaired earning capacity due to the back injury that would meet the test of “serious”.

[80]PCB 58

56      On loss of enjoyment of life, the activities he mentions[81] are in the context of a man who is capable of full-time suitable employment and I am not satisfied that the consequences for a man who could work full time can fairly be described as very considerable.

[81]PCB 60

57      I do not read Mr Brearley’s comments as supporting disabling pain or constant pain sufficient to say that consequences of the lower back injury are serious in all the circumstances of this case. 

58      The defendant’s material does not include any medical report later than August 2010 when the task is to evaluate the plaintiff’s impairment now.  Mr Sinha, general surgeon, gave an AMA percentage report on the degenerative lumbosacral disc disease in May 2009.[82]  It does not assist in evaluating consequences in November 2013.

[82]DCB 20

59      The Medical Panel opinion gave a 24 per cent AMA permanent impairment for the neck and shoulder injuries.[83]  It also does not really assist in evaluating the back condition. 

[83]DCB 25

60      Mr Shannon, general surgeon, saw the plaintiff in 2008 and 2010 and is very dated now.  In any event, he only looked at and reported on the neck and shoulder problems.  Even in 2010 there was no mention of the back injury at all.  He diagnosed cervical disc degeneration and bilateral rotator cuff pathology and said these claims caused a total and permanent loss of work capacity.  This is consistent with what the plaintiff said about the reason for his going off work in 2007. 

61      Mr Shannon is of no assistance in evaluating what consequences flow from the back condition.

62      I find the radiology does not, per se, seem to point to any gross pathology.  The adjectival descriptions have been already referred to. Those terms are not determinative of a judgment about “seriousness”.  What is important is that the two surgeons who comment on them find no radiculopathy.  Mr Brownbill says so.[84]  Mr Brearley, who saw the plaintiff twice, is of the same view.  He comments on it on both occasions.[85]  I accept the radiology is consistent with some low-back symptoms but not with any impairment that meets the test of “serious”.

[84]PCB 53

[85]PCB 59 and 62

63      The chronology in this case is worthy of comment. The plaintiff relies on the three incidents between December 2005 and early March 2006.  He worked on after them in normal duties and presumably was leading a normal life although with some symptoms.[86]  He was then forced to cease work in May 2007 due to the neck and shoulder conditions.

[86]PCB 10

64      None of the doctors the plaintiff relies on really explain how that back condition, with only mild to moderate pathology, in the absence of any further trauma, is now responsible causatively for the numerous limitations described.[87]  Again, the absence of oral evidence means the logic and reasoning of any conclusion that the same back problem is somehow now productive of these limitations is not clear.  From March 2006 to May 2007, it seems not to have hampered him unduly at work or in daily life on the evidence.  Nor did it require much treatment.

[87]Dr Ansari at PCB 46 and 49; Mr Brearley at PCB 60 and 63

65      Dealing with the evidence overall in this difficult task when no doctors have given oral evidence, I am not satisfied the plaintiff has discharged the onus of proving consequences of the impairment of back function that could reasonably be considered as being at least very considerable. 

66      I am not satisfied that the causative link to the back has been proved with respect to the very full list of consequences and limitations that the neck and shoulder conditions clearly caused with respect to work and daily life.

67      In relation to the plaintiff’s second position regarding unique consequences, such as being unable to sit or stand for too long and walk distances that could fairly be attributed to the low-back condition, I do not accept that these are very considerable in terms of their impact on enjoyment of life.  I do not accept that the lower back condition has caused or materially contributed to the plaintiff not working and his ongoing incapacity for work. 

68      Accordingly, this application fails with respect to establishing that the back condition and the impairment flowing from it has led to consequences in terms of earning capacity or loss of enjoyment of life that meet the test of “seriousness”. 

69      I will hear the parties as to costs.

- - -