Malina v Venture Industries Australia Pty Ltd
[2010] VCC 1635
•11 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-06041
| STEVAN MALINA | Plaintiff |
| v | |
| VENTURE INDUSTRIES AUSTRALIA PTY LTD | Defendant |
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| JUDGE: | His Honour Judge Misso |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 and 27 October 2010 |
| DATE OF JUDGMENT: | 11 November 2010 |
| CASE MAY BE CITED AS: | Malina v Venture Industries Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1635 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the plaintiff suffered a compensable injury – whether the plaintiff suffered an aggravation of a pre-existing injury – whether the consequences of injury or the aggravation of the pre- existing injury have pain and suffering consequences which are serious – credit – film: section 134 AB(c).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Wicks | Maurice Blackburn |
| For the Defendant | Mr R Middleton SC with | Hall & Wilcox |
| Mr S Jurica | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 18 December 2009, by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering.
3 Mr G Wicks of Counsel appeared for the plaintiff and Mr R Middleton SC appeared with Mr S Juric of Counsel for the defendant.
4 The plaintiff submitted that he had suffered a serious permanent impairment or loss of the function of his lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
The plaintiff tendered his Court Book ("PCB"), pages 10-26 and 29-60B: Exhibit A;
•
The defendant tendered video film taken of the plaintiff on 5 and 8 October 2010: Exhibit 1;
•
The defendant tendered its Court Book (“DCB”) pages 5-7; 12-24; 34-36; 56-60; 105-183 and 188-220: Exhibit 2.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(c) of the Act which requires the plaintiff to prove that he has suffered a “serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1] (b) The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2] (c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities. (d) Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering which, when judged with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than "serious to the extent of being severe" . (e) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application. (f) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “serious” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application. [1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
8 I am required by section 134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
Background
9 The plaintiff was born on 19 December 1973. He is now thirty-seven years of age. He is single. He lives with his parents.
10 After completing Year 12, the plaintiff attempted a TAFE course in accounting. He failed one subject. As a result, he discontinued the course.
11 In about June 1994, the plaintiff commenced work on the production line with the Ford Motor Company. In about May 1995, he was transferred to the plastics plant. It was taken over by the defendant in about June 1995. The plaintiff continued working after June 1995 with the defendant.
The 1998 Injury
12 By 1998, the plaintiff was performing work which involved the construction of dashboards for motorcars. My impression of the process of production is that the dashboard began its life in a basic form and as it moved along the production line, additional work was performed on it which added to its weight. When it reached the end of the production line, it weighed 40 to 50 kilograms.
13 The plaintiff suffered a strain injury to his lower back in 1998 in the course of his employment with the defendant. The injury was at the same level of his lower back as the injury he says he suffered on 27 January 2004 on which this application is based.
14 The plaintiff said that he attended the defendant’s medical centre. It would appear that he made a report of the straining injury to a nurse. He was provided with Nurofen for pain relief. He used Nurofen for about a week or two. He did not take any time off work.
15 The plaintiff said that the problem he initially suffered in 1998 caused him pain. Thereafter, he suffered intermittent pain. He said that he used Panadol about every six months for pain relief. He did not see a medical practitioner. He did not use any prescription painkilling medication.[3]
[3] Transcript 14-15 and 19-20
16 The plaintiff said that he purchased a supporting belt in about 2001 or 2002 which he wore every day whilst working for the defendant. He said that the reason why he purchased the supporting belt was because he was experiencing increasing pain which worried him.
17 The plaintiff gave a very basic description of the supporting belt. My impression was that it fitted around his lower back and was fixed by a strap or a buckle. It was something like a weightlifter’s belt. It did not contain any metal supports. I have seen supporting belts fitting the description given by the plaintiff. My impression is that the material from which they are made is flexible. They are designed to fit tightly around the lower back and abdomen.
18 The plaintiff said that he wore the supporting belt because he was required to work as a relieving stockman which involved him in undertaking episodes of lifting of the kind he was undertaking on 27 January 2004 when he suffered injury to his lower back.[4]
[4] Transcript 17-18
19 The plaintiff asked the defendant to purchase the supporting belt for him. It refused. Other workers were provided with supporting belts, paid for by the defendant. They were workers who worked as stockmen, and who, I assume, were required to engage in lifting tasks more often than the plaintiff.
20 Mr Middleton submitted that the plaintiff had a symptomatic lower back problem prior to 27 January 2004. So much so that he submitted I should be cautious in accepting the plaintiff’s evidence that the symptoms of what occurred in 1998 were modest in degree, when the plaintiff was obviously worried about the state of his lower back and was driven to protect it by wearing a supporting belt.
21 The foregoing characterisation led Mr Middleton to submit that, whatever injury the plaintiff suffered on 27 January 2004, amounts to an aggravation of a pre-existing injury.
22 I reject that submission. I accept the plaintiff’s evidence that what occurred in 1998 was a straining injury which was dealt with by the simplest approach. He used Nurofen, which is an over-the-counter painkiller, and in a short period of time the immediate effects of the straining injury diminished, leaving the plaintiff with intermittent problems for which he took Panadol which, on any view, is a very mild painkiller.
23 The fact that the plaintiff used a supporting belt seems to me to have been his way of protecting his lower back from further injury. This was very probably influenced by the fact that other workers were wearing supporting belts to protect their backs from suffering straining injuries.
The Incident
24 On 27 January 2004, the plaintiff lifted boxes of screws from a pallet which was situated on the floor of the premises onto a buggy tray. Some of the boxes weighed 15 kilograms and others 18 kilograms. After completing the foregoing task, the plaintiff then transferred the boxes from the buggy tray to a line.
25 At the time the plaintiff undertook the tasks just referred to, he was wearing a supporting belt. In his first affidavit, he described experiencing some minor pain in his lower back after undertaking the lifting tasks. During cross- examination, he said that he was unaware that he had suffered a significant injury to his lower back until after he removed the supporting belt.
26 The plaintiff wore the supporting belt for the rest of his shift. He wore it after he completed the shift and did not remove it until he arrived at his home. It was after he removed it that he experienced increasing pain that evening, and then overnight, and on the following morning he was met with excruciating pain.
27 The plaintiff returned to work on 28 January 2004. He reported the onset of the lower back pain to the Medical Centre operated by the defendant at its premises. He was provided Nurofen for pain relief. He was given light duties on a line.
28 On 29 January 2004, the plaintiff saw Dr Hanna, general practitioner. In his report dated 15 March 2004, Dr Hanna confirmed that the plaintiff saw him on 29 January 2004. Dr Hanna recorded the following:
“Stevan first saw me on 29/01/04 complaining of back pain & was wearing back support, after lifting crate probably 5-6 kg, the first injury was on November 1998 at the same factory … .”[5]
[5] PCB 29
29 The plaintiff continued working with increasing pain. On 8 February 2004, he woke with excruciating pain in his lower back and a pins and needles sensation in both of his legs. Dr Hanna certified him as unfit for work for between one to two weeks. He referred him to have a CT scan, which was taken on 12 February 2004.
30 The radiologist who took the CT scan was of the opinion that it demonstrated the following:
“1 Moderately severe L4/5 lumbar canal stenosis, secondary to a central L4/5 disc prolapse on the background of a diffuse disc bulge ? bilateral L5 nerve root impingement. 2 Mild-to-moderate L3/4 lumbar canal stenosis, secondary to right L3/4 disc prolapse and minor facet joint osteoarthritis. ? Right L4 nerve root impingement. 3 Diffuse L5/S1 disc bulge, without significant canal stenosis. 4 Mild lower lumbar facet joint osteoarthritis.”[6] [sic] [6] PCB 56
31 It is convenient to pause here to examine the submission made by Mr Middleton. He submitted that what occurred on 8 February 2004 was in some way a coincidental occurrence of excruciating lower back pain with the onset of pins and needles in the lower back unrelated to the plaintiff’s work.
32 The submission was based on the opinion of Mr Russell, general surgeon, who examined the plaintiff on 15 March 2004. It is obvious from the opinion of Mr Russell expressed in a report bearing the same date, that he not only did not accept that the plaintiff had suffered an injury on 27 January 2004, but that he believed what occurred on 8 February 2004 was coincidental and unrelated to the plaintiff’s work. I reject that submission, and I reject the opinion of Mr Russell, because I consider that it is not soundly based. I accept the plaintiff’s evidence clearly stated in his first affidavit that following what occurred on 27 January 2004, he had persistent pain even while undertaking light duties.
33 What occurred on 8 February 2004 cannot be looked at in isolation. It must be looked at in the whole context of the plaintiff’s evidence. That is what symptoms he was experiencing between 27 January 2004 and what occurred when he woke on 8 February 2004. The plaintiff repeated the very same contextual evidence when cross-examined on this subject.[7]
[7] Transcript 28
34 I accept the plaintiff’s evidence that he suffered injury on 27 January 2004. I accept his evidence that the symptoms he experienced of persistent pain worsened on 8 February 2004 and were accompanied by the additional symptom of pins and needles in both of his legs.
The Plaintiff’s Medical Treatment
35 The plaintiff has been treated by Dr Hanna since 29 January 2004 at the St Luke Medical Centre. At present Dr Hanna prescribes the plaintiff Panadeine Forte, which is for pain relief, and Brufen, which is an anti-inflammatory.
36 Dr Hanna referred the plaintiff to a number of specialists for treatment. Firstly to Mr Love, orthopaedic surgeon. Mr Love saw the plaintiff on one occasion, on 5 March 2004. He found stiffness in the plaintiff’s lumbar spine. He noted the findings on the CT scan. He recommended the plaintiff have physiotherapy.[8]
[8] PCB 41
37 Dr Hanna next referred the plaintiff to Mr Kavar, neurosurgeon. Mr Kavar saw the plaintiff on 3 March 2005 and on 7 April 2005. He referred him to have an MRI scan, which was undertaken on 29 March 2005. The radiologist reported that the MRI demonstrated a large central posterior distribution at L4-5; a shallow central posterior disc protrusion at L3-4, and a tiny disc protrusion at L5-S1.
38 Mr Kavar was of the opinion that the plaintiff was suffering from severe lower back pain, secondary to lumber spondylotic disease, and an L4-5 disc prolapse causing secondary canal stenosis. He was also of the opinion that the plaintiff was likely to have long-term back pain which led him to say that his prognosis was guarded. He added that the plaintiff was likely to develop leg symptoms for which he might require surgical intervention.[9]
[9] PCB 40
39 According to the plaintiff, Mr Kavar referred him to Dr McCarthy at The Royal Melbourne Hospital. Dr McCarthy referred the plaintiff to have an epidural, which was undertaken in July 2005 at the Glenferrie Private Hospital. The plaintiff obtained some slight improvement, which diminished over time.
40 Dr McCarthy also referred the plaintiff to have facet joint blocks, which were undertaken in September 2005. The plaintiff obtained improvement, and so much so that he was able to eventually return to full-time light duties with the defendant.[10]
[10] No report from Dr McCarthy was produced
41 Subsequently, the plaintiff commenced physiotherapy treatment provided by Mr Chan, physiotherapist. He had physiotherapy treatment for about eighteen months. It ceased when Mr Chan informed the plaintiff that he could not improve his position any further.
42 Dr Hanna next referred the plaintiff to Mr de la Harpe, orthopaedic surgeon. He saw the plaintiff on 19 December 2008 and 4 March 2009. He referred the plaintiff to have a further MRI scan, which was undertaken on 11 March 2009. The radiologist reported that the MRI scan demonstrated multi-level degenerative disc disease with a small central disc extrusion and annular fissure on the background of a broadbased disc bulge at L4-5 with minimal posterior displacement of the traversing right L5 nerve root in its lateral recess.[11]
[11] PCB 60
43 Mr de la Harpe was of the opinion that the plaintiff was suffering from multi- level degenerative lumbar spine disease which was causing his back pain. He was also of the opinion that the plaintiff’s prognosis was guarded. He recommended conservative treatment.[12]
[12] PCB 43
44 The plaintiff continued working, essentially on light duties, until about March 2007. At that time he was informed that unless he was able to return to normal duties, there was no job available for him with the defendant. The plaintiff was not able to return to normal duties, which led to the termination of his employment.[13]
[13] PCB 19
45 Dr Hanna, Mr Kavar and Mr de la Harpe were all of the opinion that, based on the history given to them by the plaintiff, the injury for which they treated the plaintiff was due to the incident which occurred on 27 January 2004.
The Other Medical Evidence
46 Both the plaintiff and the defendant referred the plaintiff for examinations by specialists in orthopaedic surgery and occupational medicine for the purpose of medico-legal assessment of the plaintiff’s injury.
47 Apart from Mr Russell, there seems to be unanimity in the medical evidence that the plaintiff suffered an injury on 27 January 2004. Where the medical practitioners part company is in their diagnosis of the plaintiff’s injury:
• Dr Horsley examined the plaintiff on 18 August 2010. She noted what was demonstrated on the MRI scans. She was of the opinion that the plaintiff presented with mechanical lower back pain.[14] • Mr Kudelka, orthopaedic surgeon, examined the plaintiff for the defendant on 17 March 2005. He was of the opinion that the plaintiff was suffering from lower back pain and stiffness due to degenerative changes in the lower three lumbar discs.[15] • Mr Hooper, orthopaedic surgeon, examined the plaintiff for the defendant on 11 June 2008. He was of the opinion that the plaintiff had evidence of discogenic degenerative disease at L4-5 and L5-S1.[16] • Dr Baker, occupational physician, examined the plaintiff for the defendant on 9 December 2009 and 9 June 2010. He was of the opinion that the plaintiff was suffering from multi-level spondylitic disease.[17] • Mr Jones, orthopaedic surgeon, examined the plaintiff for the defendant in late September 2010. He was of the opinion that the plaintiff had developed chronic discogenic lower back pain.[18] [14] PCB 53
[15] DCB 22
[16] DCB 35
[17] DCB 49
[18] DCB 59
48 All of the foregoing medical practitioners were of the opinion that the work which the plaintiff was engaged upon on 27 January 2004 had aggravated the condition of the plaintiff’s lower back as it was prior to that date.
49 The only medical practitioner to express a different opinion was Mr Russell, who simply did not accept that the plaintiff suffered a work-related incident. I reject the opinion of Mr Russell.
50 Mr Russell is a general surgeon, whereas Mr Kavar is a neurosurgeon, and Messrs de la Harpe, Kudelka and Jones are orthopaedic surgeons whose specialties include treatment of injuries to the spine.
51 Whilst Doctors Horsley and Baker are occupational physicians, they no doubt have an understanding of spinal conditions as part of their role in analysing an injured person’s capacity to work, and in what sort of work. Whilst their opinions are to be respected, I prefer the evidence of the medical practitioners whose specialty is in the treatment of spinal conditions.
The Plaintiff’s Evidence
52 The plaintiff is thirty-seven years of age. He is a single man. He lives with his parents. He is unemployed.
53 The injury the plaintiff suffered on 27 January 2004 resulted in the plaintiff suffering constant pain in his lower back with intermittent episodes of pins and needles in both legs. The pins and needles sensation is worse when he sits for long periods of time. He is unable to be on his feet for too long before he suffers an increase in pain. He is unable to undertake some domestic tasks, such as vacuuming, and his capacity to engage in his dominant recreational activity of tenpin bowling is much reduced.[19]
[19] PCB 19-20
54 The plaintiff continues to see Dr Hanna. He was prescribed medication, referred to above, which he takes frequently in order to deal with the level of pain which he says he has suffered since January/February 2004 to the present time.
55 Mr Middleton showed the plaintiff film taken on 5 October 2010. He submitted this demonstrated the plaintiff having relatively full, free and unrestricted use of his lower back inconsistent with pain and suffering consequences which could meet the statutory test.
The Film
56 Before turning to the film and what it demonstrated, it is necessary to understand the extent to which the plaintiff was engaged in tenpin bowling before 27 January 2004.
57 The plaintiff was a very accomplished tenpin bowler. In 2003, he bowled in the Australian championships. He finished twenty-first in a competitive field of 120 competitors. He bowled in the New South Wales Championships. He finished seventeenth. He did not describe the size of the competitive field. He bowled in the South Australian Championships. He was not sure where he finished in the competitive field. He played in two tournaments in Victoria, described by him as “the South Pacific open”. He finished fourteenth. He did not describe the size of the competitive field. He played in the Brunswick cup. He finished in the mid-twenties. He did not describe the size of the competitive field.[20]
[20] Transcript 29-31
58 Since suffering injury, the plaintiff said that he now plays more in a social capacity. On Mondays he plays with a team known as the “Bombers”, and on Fridays he plays with a team known as “Farkem Twice”. With the Bombers he plays three games, and he plays the same number of games with Farkem Twice.[21]
[21] Transcript 32-35
59 By comparison, he said he has reduced the volume of the occasions he plays tenpin bowling to the following extent:
“Q:
What is the difference in terms of that intensive tournament - the tournament bowling and the bowling - the local competition bowling you bowl now?---
A:
OK, well pre-injury I used to bowl - well like I said, about three or four times a week, [I] have bowled probably about 18 to 20 – 20 - odd games during the week, practise and league, and then bowling tournaments I'd average probably about 20 to 25 games during the weekend, whereas now I'm only bowling Monday and Friday and it's three games and three games and that's it.
Q: The next sentence in this section from the affidavit is, ‘However, I
kept up social games’, that's what we have been seeing there?---A: Yes, that's right. Q: But that's a competition, Mr Middleton has pointed out to you isn't
it?A: Well, for me it's just a social going out - going out with all my
friends.”
60 Furthermore, the plaintiff said that he now warms up for about five minutes before he plays; he does not have as high an arm swing as he used to, which would have involved a lot of twisting of his back; he bowls much slower than he used to; he is unable to create as many revolutions on the ball as he used to; and he delivers the ball much higher than he used to. Previously he would deliver the ball about 5 centimetres from floor level. Now he delivers it about 30 to 40 centimetres from the floor level.[22]
[22] Transcript 38 and 54-56
61 Against the plaintiff’s description of the impact his lower back injury has had on his proficiency as a tenpin bowler, Mr Middleton submitted that the plaintiff still bowls very well. He referred to the results achieved by the plaintiff:
ƒ 20 November 2007 - 631[23] [23] DCB 190. 631, and the following refer to his aggregate score over three games
ƒ 12 August 2008 - 749[24] [24] DCB 192
ƒ 24 November 2008 - 611[25]
[25] DCB 195
ƒ 16 December 2008 - 669[26] [26] DCB 196
ƒ 1 June 2009 - 63227 ƒ 14 November 2007 - 65728
ƒ 23 March 2009 - 59729 ƒ 9 June 2009 - 63230 ƒ 7 September 2009 - 58031
ƒ 6 October 2009 - 599.32 62 Mr Middleton drew particular attention to the plaintiff’s score line on 12 August 2008 of 749, which he said must be read in the context of the plaintiff obtaining that score line against another player named Kelvin Mueller, who was described as having a “mighty 735 series” eclipsed by the plaintiff’s score of 749.33
63 The film was taken on 5 October 2010, which amounted to a few seconds only, and on 8 October 2010, the film commenced at about 18.37 hours, then ran for about thirty minutes.
64 The film showed the plaintiff in company with a number of other people at a bowling alley. He lifted, carried, then quickened his pace, swung his arm and released the ball on about thirty occasions.
65 The plaintiff said that when he goes bowling he has a bag containing four bowling balls. The balls each weigh about fifteen pounds. He carries them on a wheeled trolley to and from his car. He separates the bag into two parts when loading and unloading the bags.34
66 Mr Middleton referred me to the opinion of the authors of a report of CoWork
DCB 199
DCB 202
DCB 205-206
DCB 209
DCB 212
DCB 215-216
Mr Middleton and Mr Wicks informed me that a perfect score in a game is 300 points. I assume that the aggregate of three games must therefore mean a perfect score is 900 points
Transcript 44-45
Pty Ltd dated 18 June 2010. The authors analysed a bowling action, concluding that it would be difficult to undertake that in the setting of a lower back injury.[35]
[35] DCB 113-114
67 Mr Middleton also referred me to the opinion of Mr Kavar, who suggested that the plaintiff stop tenpin bowling. However, that was not the opinion of Mr Kudelka nor Dr Horsley. Mr Kudelka considered that it was probably beneficial rather than harmful.[36] Dr Horsley considered that it was commendable that the plaintiff continued with tenpin bowling.[37]
[36] DCB 23
[37] PCB 53
68 Dr Horsley was provided with a film of the plaintiff engaging in tenpin bowling on 23 June 2009. According to her report dated 24 August 2010, the film she saw ran for some forty-four minutes. She observed that the plaintiff was seated, statically standing and bowling with no specific restriction, which is consistent with my observation of the plaintiff in the film shown to me.[38]
[38] PCB 55
69 Dr Horsley was of the opinion that the film did not alter her opinion. She said that the plaintiff has discal disruption, but no radicular features clinically, and that he is able to statically stand and sit, but the length of time he would be able to do that is limited. She added that she would not expect him to have difficulty bowling on an intermittent basis.
70 Dr Horsley did not see the film which I was shown. Mr Middleton informed me that what Dr Horsley was shown and what I was shown were very similar, and that I could operate on the basis that there was really no difference in what was shown in the two films. [39]
[39] Transcript 117-118
71 Here I am confronted with film which potentially suggests unrestricted movement of the plaintiff’s lower back; however, Dr Horsley is an experienced clinician with a special interest in occupational health and rehabilitation.[40] I must accept, in the absence of any challenge to her qualifications and experience, that she is in the best position to analyse the film and assess whether it is destructive of the plaintiff’s case.
[40] Dr Horsley’s qualifications are MBBS FAMAS FAFOM (RACP) MPH GRAD DIP MSM. The first two fellowships presumably conferred by the College of Physicians. I am unsure what the other qualifications amount to save that they are qualifications relevant to her medical practice.
72 I reject the submissions made by Mr Middleton that I should analyse the film and conclude that it is destructive of the plaintiff’s case. I prefer the evidence of Dr Horsley that it is benign, and I am fortified in reaching that conclusion because both Mr Kudelka and Dr Horsley obviously understood what tenpin bowling involved when asked to comment on it. The opinion of Mr Kavar is not that the plaintiff must not engage in tenpin bowling, but rather a suggestion that he should not. The distinction is an obvious one.
Serious Injury
73 I accept the evidence given by the plaintiff in an overall sense. I reject the submission made by Mr Middleton that the manner in which the plaintiff gave his evidence should cause me some disquiet.
74 The plaintiff often asked for questions to be repeated and often gave non- responsive answers, however, he eventually gave a responsive answer and often those responsive answers were against his interests.
75 I watched the plaintiff carefully. I concluded that he is not an overly intelligent man, and indeed, is a very simple man, despite the fact that he completed his schooling and attempted a TAFE course. I think he found the experience of being cross-examined difficult, and I think he was nervous. In the end I am satisfied that he made a reasonable attempt to give a good account of himself.
76 I am satisfied that the plaintiff suffered the injury on 27 January 2004. I am satisfied that the plaintiff had pre-existing degenerative changes in his lower back which were aggravated by the incident. I am also satisfied that the plaintiff suffered an L4-5 disc prolapse causing secondary canal stenosis consistent with the opinion of Mr Kavar. Furthermore, I accept the opinion of Mr Kavar that the plaintiff will have long-term back pain and is likely to develop leg symptoms for which he may require surgical intervention.
77 The foregoing is not consistent with other medical opinions, and in particular, Mr de la Harpe, however, the preponderance of the medical evidence suggests that the plaintiff has suffered an aggravation of pre-existing degenerative changes, but that there is also discal involvement according to Dr Horsley, Mr Kudelka, Mr Hooper and Mr Jones.
78 I am satisfied that the plaintiff has persistent pain in his lower back and intermittent episodes of pins and needles in his legs. I am satisfied that his capacity to undertake normal movements is impaired as I have summarised in paragraph 53 above.
79 I am satisfied that the plaintiff requires the use of strong medication to deal with the pain he experiences.
80 The preponderance of the medical evidence also supports the conclusion that the plaintiff is unlikely to be able to return to his former work with the defendant, or similar labouring work. He may have the capacity for light work, but again, the preponderance of the medical evidence points to the plaintiff needing to have restrictions imposed upon him in undertaking light work.
81 It is my overall strong impression that the plaintiff’s case has all of the characteristics consistent with a case which meets the statutory test relevant to pain and suffering consequences.
82 Therefore, I am satisfied that for all of the foregoing reasons, the plaintiff has suffered a serious permanent impairment of the function of his lower back. I have reached that conclusion after making the relevant comparison which I am called upon to make.
Conclusion
83 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of his employment with the defendant.
84 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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