McIntosh v Thompsons, Kelly & Lewis Pty Ltd
[2022] VCC 282
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-21-00312
| DAVID IAN McINTOSH | Plaintiff |
| v | |
| THOMPSONS, KELLY & LEWIS PTY LTD | First Defendant |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2022 | |
DATE OF JUDGMENT: | 17 March 2022 | |
CASE MAY BE CITED AS: | McIntosh v Thompsons, Kelly & Lewis Pty Ltd and Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 282 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the lower back – whether pain and suffering consequences are “serious” under the Act – did the injury occur at work in the course of employment
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave is granted to the plaintiff to bring common law proceedings to recover damages for pain and suffering arising out of an injury to his back during the course of his employment with the first defendant between 20 October 1999 and 30 June 2013.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram QC with Mr L Perilli | Slater and Gordon Ltd Lawyers |
| For the Defendants | Mr E Makowski | Thompson Geer |
HIS HONOUR:
1The plaintiff, by Originating Motion dated 29 January 2021, applies for leave pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages suffered by him in the course of his employment with the first defendant, Thompsons, Kelly & Lewis Pty Ltd, between 20 October 1999 and 30 June 2013.
2The commencement date for the period of employment is legislatively sensitive. The final date mentioned in the application is the date that the plaintiff was retrenched from his employment.
3The plaintiff seeks leave to bring proceedings to recover damages for pain and suffering only. The plaintiff seeks leave pursuant to the definition of “serious injury” of a serious long-term impairment or loss of body function to his lower back.
4The following evidence was adduced during the course of the hearing:
· The plaintiff gave evidence and was cross-examined.
· The plaintiff tendered the following exhibits:
§Exhibit A – the Plaintiff’s Court Book (“PCB”), pages 9 to 60 inclusive;
§Exhibit B – the Defendants’ Court Book (“DCB”), pages 7 to 19 and pages 20 to 24 inclusive.
· The defendants tendered the following exhibits:
§Exhibit 1 – PCB, page 61;
§Exhibit 2 – DCB, pages 25 to 33, 34 to 92 and 175 to 182 inclusive.
5At the commencement of the proceeding, Mr Makowski, on behalf of the defendants, identified the following issues as relevant in this application:
(a) The plaintiff does not satisfy the statutory level for pain and suffering damages as a result of a physical injury to his lower back (a range case); and
(b) Causation – what injuries which occurred at work are causing the consequences complained of by the plaintiff; and
(c) The plaintiff has continued to work, and it is not until 2016 when the consequences he now complains of became apparent. Is there an intervening event which is the cause of the consequences at the date of hearing.
The statutory scheme
6The application is brought under the definition of “serious injury” contained in s134AB(37) of the Act, which requires the plaintiff to prove that he has suffered a permanent serious impairment or loss of body function.
7The 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 or in the course of his employment with the first defendant between 20 October 1999 and 30 June 2013;
(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;
(c) The plaintiff bears the onus of proof to be determined upon the balance of probabilities;
(d) Sub-section (2)(c) provides that the impairment must have consequences in relation to pain and suffering when judged by comparison with other cases, in a range of possible impairments or losses of a body function, may be fairly described as being “more than significant or marked, and as being at least very considerable”;
(e) Sub-section (2)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) I am required 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, disclose my pathway of reasoning in dealing with the evidence and the issues raised by this application.
8I have read the exhibited material and taken into account the evidence of the plaintiff in this case in making this decision.
The Plaintiff’s background
9The plaintiff was born in 1972. He is now fifty years of age. The plaintiff is a married man who lives with his wife and two daughters, aged twenty and seventeen years respectively.[1]
[1]PCB 14
10The plaintiff was educated to Year 11 at Coburg High School.[2] After the plaintiff left school, he initially was employed as a truck jockey and in casual work generally. In 1990, the plaintiff commenced work at Davis & Baird, an engineering company. That company was taken over by the first defendant, Thompsons, Kelly & Lewis Pty Ltd, the current employer of the plaintiff for the purposes of this application. The plaintiff was retrenched by the first defendant on 30 June 2013.
[2]PCB 14
11Between 2013 and 2015, the plaintiff worked at Good Times Decking Pty Ltd. He then gained some casual work with Programmed, in agency-type employment.
12Late in 2015, the plaintiff commenced work with his current employer, Beckwith Iron and Steel (“Beckwith”). The current employment that the plaintiff is engaged in is exactly the same workplace where he was employed by the first defendant. The plaintiff was re-employed by his former foreman to engage in the current work. The plaintiff now works as a supervisor and machine operator. In his evidence, he stated his time was split approximately 50:50 in that regard.
Injury with the First Defendant
13The plaintiff had worked in the role as a machinist, as a hand grinder and magnetic particle inspector. The nature of the work with the first defendant was that he would spend prolonged periods working in a flexed forward position at the waist, either carrying weights of up to 20 kilograms or working with machines.
14The plaintiff’s first attendance for lower back difficulties was at the Broadway Medical Clinic on 26 October 1999. The note taken by the doctors is as follows:
"Low back pain - left lower back after grinding at work yesterday. Very severe pain since.
On examination, tender left lower para-lumbar muscles
Decreased movements in all directions by 90%
Diagnosis: Muscular strain left lower back
Certificate to be off work was dated 26 October 1999
Moderate duties from 27 October 1999 to 2 November 1999
Cleared for work on 3 November 1999.”[3]
[3]PCB 51
15The Broadway Medical Clinic was the industrial clinic for the plaintiff’s employer.
16On 7 March 2002, the plaintiff lodged a claim for a herniated disc at L4-5 while pushing a hand truck.[4] On the same date, Dr Joseph Vernali, general practitioner, from the Broadway Medical Clinic, provided a certificate to the plaintiff for a left sciatica, stating that he was fit for light duties, and prescribed Voltaren, paracetamol, Panadeine and physiotherapy.[5]
[4]DCB 7-9
[5]DCB 10
17A CT scan of the lumbar spine performed on 8 April 2002 demonstrated a mild L4‑5 posterolateral disc herniation with compression proximal at the left L5 nerve root.
18On 14 October 2010, the plaintiff attended at the Craigieburn Super Clinic complaining of chronic back pain. A CT scan at that time showed a bulging disc. The plaintiff was prescribed Voltaren, 50 milligrams. At that time, the plaintiff was complaining of pins and needles down to his toes.
19In August of 2011, the plaintiff suffered a significant aggravation of his spinal condition due to his employment.[6]
[6]PCB 14
20On 23 August 2011, the plaintiff attended Dr Shalia Cazi, general practitioner, at the Craigieburn Super Clinic, concerning the flare up of his back pain due to a bulging disc. He was prescribed Voltaren.
21By 25 August 2011, the plaintiff had attended at Medibank Health Solutions (industrial clinic for the employer) and was placed on alternative duties from 27 August 2011. It was noted at that time, there was lower back pain in 2002 which was work related.
22On 20 September 2011, the plaintiff underwent an MRI scan of the lumbosacral spine. The report of that examination noted as follows:
“L4/5:
A small to moderate sized left paracentral and posterolateral disc extrusion is noted indenting the anterior thecal sac and compressing the left S1 nerve root posteriorly in the lateral recess. The disc extrusion dissects approximately 7 mm inferior to the disc level pressing the left L5 nerve root posteriorly. Mild degree in disc height and marked decrease in disc signal indicates degenerative disc disease.
…
Conclusion: Degenerative disc disease at L4/5 with a small to moderate sized broad based left posterocentral and posterolateral disc extrusion indenting the anterior thecal sac and compressing the left S1 nerve root in the lateral recess. The disc extrusion dissects approximately 7 mm inferiorly.
No additional disc abnormality.
The more central posterior central disc protrusion mildly indents the anterior thecal sac.”[7]
[7]PCB 22-23
23Following the MRI examination, the plaintiff was then referred to orthopaedic surgeon, Mr David de la Harpe. He attended on Mr de la Harpe on 13 October 2011. At that time, the plaintiff was taking Voltaren and Panadeine Forte for pain, and was undergoing physiotherapy treatment. Mr de la Harpe made a request to perform an operation on the plaintiff’s back.
24On 18 November 2011, the insurers for the first defendant accepted liability for the operation to the plaintiff’s back.
25On 2 December 2011, the plaintiff underwent a microdiscectomy to the L4-L5 level performed by Mr de la Harpe.[8] Initially, the plaintiff was pain free after the operation.
[8]PCB 27
26On 19 December 2011, Mr de la Harpe reported to Dr Yi-Lee Phang, general practitioner, as follows:
“I reviewed David McIntosh in my Epworth Consulting Rooms on 15/12/2011. He is doing very well following his microdiscectomy and he has no left leg pain at all. The wound has almost healed and at this stage I would like him to take life a little quiet for another month and just do some walking for rehab. I will see him in mid January and we will discuss return to light duties then.”[9]
[9]DCB 24
27The plaintiff ultimately did return to light duties at his place of work and then proceeded to perform his normal duties up until his retrenchment on 30 June 2013.
28The plaintiff’s evidence is that he continued to take medication to deal with the pain. The plaintiff also stated in his evidence that he suffered pins and needles down his left leg some six weeks after the operation and the pain increased over time, up until the stage of six months post operation. The plaintiff stated that from that time on, he has continually had pain in his left leg, more significant in his left leg than his lower back. The plaintiff’s evidence is that he has continued to take medications to ameliorate that pain. The medication is predominantly the ingestion of Panadol but on occasions, he has been prescribed Voltaren and Panadeine Forte.
29The plaintiff did return to work at the same work premises performing essentially the same tasks. His role at Beckwith is different, in the sense that he is mostly in a supervisory capacity or a machine operator. He no longer does the grinding work. Nevertheless, in September 2016, he attended his general practitioner complaining of lower back pain. He has attended upon his general practitioner on a number of occasions between 2017 until the current time concerning his pain to his lower back. He has been prescribed Voltaren and Panadeine Forte in that time.
30On 16 July 2021, Dr Lamia Jasim, general practitioner, states the conclusion of the MRI scan as follows:
“Interval development of L5-S1 mild left paracentral disc herniation and annular tear.
L4-5 Epidural scar versus recurrent left posterolateral disc herniation and L5 nerve root impingement.
Treatment/Plan: patient will book with specialist and review MRI.”[10]
[10]PCB 30
31The plaintiff stated that he has not consulted a specialist further for treatment since that time.
32The plaintiff continues to work in his role as a supervisor and machine operator with Beckwith. His work is full time and on occasion, he can work overtime, amounting to as many as 46 hours per week.
33I accept that in the course of the plaintiff’s employment with the first defendant, on a number of occasions due to his work as a grinder and the nature of his work up until the date of his retrenchment, the plaintiff has incurred the injury to his lower back which now is the cause of his left leg and lower back symptoms. The history of his medical treatment, including surgery, prior to him being retrenched, substantiates that he has been compromised as a result of his employment with the first defendant company. The plaintiff has pressed on and remained in employment as best he can with the assistance of pain-relief medication, to continue working. I do not accept the proposition effectively put to the plaintiff by the defendants’ counsel that there has been some intervening incident in 2016 that has warranted a re-emergence of an injury to the plaintiff’s back. I accept that the plaintiff has been dealing with his lower back injury and left leg symptoms all of the time from when he worked with the first defendant company. The first defendant company accepted liability for his surgery.
Medical opinions
The Plaintiff’s doctors
34Dr Lamia Jasim is the general practitioner for the plaintiff. Dr Jasim prepared a report dated 24 October 2021. The report by the general practitioner is literally a history of treatments and prescriptions for the plaintiff since 26 February 2013 and onwards. The general practitioner’s report does not shed any light or opinion on what is the cause of the injury to the plaintiff’s low back and left leg symptoms. Dr Jasim accepts that those symptoms all go back to the lumbar discectomy which was performed in late 2011.
Mr David de la Harpe, orthopaedic surgeon
35Mr de la Harpe prepared an operation approval request on 22 November 2011 for an L4-5 microdiscectomy to be performed on the plaintiff’s back.[11] The operation was performed on 2 December 2011.
[11]PCB 25
36The only post-operative report from Mr de la Harpe is dated 19 December 2011 and appears at DCB 24. I have quoted this report earlier in my Reasons. Mr de la Harpe has not seen the plaintiff since that time.
Professor Richard Bittar, consultant neurosurgeon
37Professor Bittar examined the plaintiff on 24 November 2021 for the purposes of this litigation. Professor Bittar took a history from the plaintiff that he was a right-handed labourer. The plaintiff stated that he was a machinist/labourer for 38 hours per week, carrying out normal duties. The plaintiff described his role as being of a light physical nature and that he spent most of his time standing and watching machines.
38Professor Bittar took a history from the plaintiff that his current treatment was analgesic medications, including non-steroidal anti-inflammatory medications and Panadeine Forte as required. Typically he takes medications at least twice a week.[12] Professor Bittar also noted that the plaintiff’s sleep was moderately impacted, and he often experiences daytime tiredness.[13]
[12]PCB 42
[13]PCB 42
39Professor Bittar, on examination, noted that the plaintiff had a well-healed midline lumbar spinal incision with no muscle wasting or tenderness. He noted that the leg raising on the left side was marginally restricted. He also noted a mild weakness in the left extensor hallucis longus.[14]
[14]PCB 43
40Professor Bittar diagnosed the plaintiff as suffering the following conditions:
“1. L4/5 intervertebral disc prolapse treated with microdiscectomy.
2. Persistent pain following spinal surgery.
3. Left L5 radiculopathy.
4. Recurrent or residual L4/5 disc prolapse.”[15]
[15]PCB 43
41Professor Bittar’s opinion was that the plaintiff’s employment was a dominant contributing factor to the plaintiff’s condition. The employment Professor Bittar was referring to was that taken in the history from the plaintiff, employment with the first defendant.
42Professor Bittar went on to give his opinion as follows:
“… he should undergo a left L5 nerve sheath injection with local anaesthetic and steroids. If this offers him a significant benefit, he should be considered for revision surgery in the form of a redo microdiscectomy.”[16]
[16]PCB 44
43Professor Bittar went on to state that if there was further and successful surgery, the leg pain suffered by the plaintiff may improve; however, he was of the opinion that the lower back pain would continue at its current level for the foreseeable future.[17]
[17]PCB 45
Associate Professor Miron Goldwasser, orthopaedic surgeon
44Professor Goldwasser prepared a report dated 4 September 2020 for the impairment benefits specialist at the defendants’ insurer. Professor Goldwasser was of the opinion that the plaintiff’s soft tissue injury to his lower back was consistent with the history given of events which occurred on 25 August 2011. He noted that that occasion would probably have aggravated pre-existing degenerative changes in the lower back which had become symptomatic with activities at work between 1999, and severe episodes in 2002 and 2011.[18]
The Defendants’ doctors
[18]PCB 55
Dr Ashish Jonathan, consultant neurosurgeon
45Dr Jonathan consulted with the plaintiff on 14 September 2021 for the purposes of this litigation. The report dated 14 October 2021 was part of the Defendants’ Court Book.
46Dr Jonathan took a history from the plaintiff that he suffered from left leg pain which was constant. At worst it was 11 out of 10 in intensity. At its best it was 5 out of 10 and averaged 5 out of 10. The plaintiff also complained of back pain, stating that it was always there but was not intense. There was a pins and needles sensation on the outer aspect and the bottom of his left foot.[19] Dr Jonathan noted that the plaintiff was not taking any medication on a regular basis. He took a history that the plaintiff took Voltaren and Panadol on and off as required for pain. He also took a history that the plaintiff took Panadeine Forte if the pain was unbearable.[20] In his report, Dr Jonathan notes his physical examination findings as follows:
“He was able to stand on his heels and toes but was unable to perform a full squat. He was able to forward flex with the tip of his fingers touching his mid-shin. Extension was restricted. Lateral flexion was normal. Lateral rotation to the left was moderately restricted.
Straight leg raise test was normal on the right and limited to 60° on the left with no radicular symptoms reported.
[19]DCB 27
[20]DCB 27
There was weakness of hip flexion on the left. Knee flexion and extension were weak on the left. Left ankle dorsiflexion and plantar flexion were weak.”[21]
[21]DCB 28
47Dr Jonathan noted the results of an MRI scan of the plaintiff’s lumbosacral spine performed on 20 September 2021 and referred to an MRI scan which had been performed on 7 July 2021. Dr Jonathan’s opinion based on the radiological findings was that the MRI scan of the lumbar spine showed a recurrent disc herniation at the L4-5 level and evidence of degenerative change at the level below.[22]
[22]DCB 29
48Dr Jonathan was of the opinion that the limitation of capacity to work or domestic duties arises due to degenerative disease of the lumbar spine and is not related to the plaintiff’s employment.[23] I found this conclusion difficult to understand in light of the fact that the plaintiff had received surgery during the course of his employment with the first defendant company in this case. I do not accept Dr Jonathan’s opinion that the plaintiff’s current symptoms and complaints have nothing to do with the injury he received at work.
[23]DCB 32
The credit of the Plaintiff
49The defendants did not seriously attack the credit of the plaintiff. Rather, the defendants’ case was based on the fact that there was a gap in time between the plaintiff ceasing work with the first defendant company and his recommencement at the same place of employment when symptoms and treatment restarted at his general practitioner. The defence case was that the plaintiff’s condition had resolved as a result of the surgery and another intervening event must have occurred to reactive the symptoms.
50I have had the advantage of observing the plaintiff while giving evidence over Zoom. I have read the affidavits, both of the plaintiff and his wife. His wife states in her affidavit as follows:
“The Plaintiff has used a variety of medications over a long period to try and relieve his symptoms of pain and presently is using Panadeine Forte and Voltaren although he tends to avoid using medication and to cope with the pain as best he can.”[24]
[24]PCB 19
51I accept that evidence and it is unchallenged. The plaintiff’s evidence is that he takes Panadol regularly in order to go to work.
52My assessment of the plaintiff is that he is the quintessential stoic man. The plaintiff has attempted and successfully been able to return to work, albeit in lighter duties after back surgery. He has engaged in his employment even though he has continued to suffer from leg pain and lower back pain. I accept he is a person who sees his primary role as being a provider for his family. He has attempted to remain in employment as soon as he could possibly get back to work with the first defendant company and subsequently, after he had been retrenched, obtained work as quickly as he could. The fact that the plaintiff has returned to work and indeed, returned to the same place of work more recently, does not mean that the plaintiff has not, over the whole time since 2011, suffered from the symptoms he now endures.
53I accept his evidence that he does not have a claim against his current employer. In short, the plaintiff is not someone who is compensation driven but rather, a person who does his best to get on with his life despite the setback that he has had as a result of injury to his back with the first defendant company.
Consequences as a result of the injury to the Plaintiff’s lower back
54The plaintiff has sworn two affidavits, dated 9 September 2020 and 1 September 2021. The plaintiff also relied upon an affidavit sworn by his wife, Angelina McIntosh, which was sworn on 1 September 2021.
55In those affidavits, the plaintiff’s consequences of the injury to his low back and resulting left leg pain are set out in full detail.
Sleep
56The plaintiff, in his second affidavit, stated that his symptoms have created a problem with his sleeping habits and that he tends to wake two or three times a night because of the pain and has difficulty getting back to sleep.[25] In his evidence, the plaintiff was cross-examined about his sleeping difficulties. The evidence was as follows:
[25]PCB 11
Q:“You don’t take any sleep medication, do you?---
A:No.
Q:Because you’re able to sleep sufficiently to enable you to work with full concentration each day?---
A:Well, it’s - it’s very uncomfortable sleeping.
Q:But it’s not painful, you can still sleep each night?---
A:Yes.
Q:And you have minimal sleep interruption?---
A:Ah, yes.
Q:And you feel refreshed each morning, is that true, each morning you’re refreshed from the night’s sleep?---
A:No.
Q:Well, you need to have good concentration at your role, don’t you?---
A:Yes.
Q:And you have no difficulties concentrating on your job each day?---
A:Um, no.”
HIS HONOUR:
Q:“When you say you’re not refreshed from a night’s sleep, why is that?---
A:Um, when I wake up, Your Honour, I feel sore, I feel more sore when I wake up in the mornings than I do subsequently during the day.”[26]
[26]Transcript 35, Line 19 – Transcript 36, Line 3
57I accept that the plaintiff’s sleep is interfered with due to the pain he suffers from the injury to his back and that that is a very considerable consequence for him.
Pain
58The plaintiff, in his affidavit, states that by the time he has had a day at work he has increasing levels of pain and throbbing leg pain from his left leg down to his foot. He also suffers from pins and needles in his left foot.[27]
[27]PCB 16
59The plaintiff, in his stoical manner, states that he is never completely free of pain, that throughout the course of any average day, his pain rate is between 4 and 7 out of 10.[28]
[28]PCB 16
60The plaintiff was cross-examined about the pain that he suffered and when it started:[29]
[29]Transcript 11
Q:“And your duties weren’t changed, you were doing full-time hours and full duties between, roughly, 2002 and 2011?---
A:Yes.
Q:Then, in 2011, did things change?---
A:Yes.
Q:A big change in pain?---
A:Yes.
Q:Nothing like you had never experienced before?---
A:Yes.
Q:Do you remember what you were doing when that pain commenced?---
A:Um, I was - I was grinding.”[30]
[30]Transcript 11, Lines 3-10
61The plaintiff was cross-examined about his complaint of leg pain over the period 2012 through to 2015. He responded:
“I didn’t complain to a doctor but I had leg and back pain, yes.”[31]
[31]Transcript 22, Lines 23-24
62When the plaintiff was re-examined, he stated that he had suffered pins and needles some six to eight weeks after surgery. He noted that mainly the pain was in his leg but he also had pain in the back.[32]
[32]Transcript 40
Medication
63The plaintiff, in his first affidavit, stated that he used Voltaren and Panadol most days to achieve some pain relief. The plaintiff’s evidence about his use of medication has been consistent and he was cross-examined about it during this hearing. It was put to him:
Q:So, I’d suggest that would mean your back pain was very manageable or low level, no need to see a doctor?---
A:I - yes, I was taking just normal painkillers, like Panadol.”[33]
[33]Transcript 10, Line 29 – Transcript 11, Line 1
64The plaintiff was then cross-examined about his work period between 2013, 2014 and 2015:
Q:“And you didn’t see a need to complain to a doctor because you were able to cope with your full-time work in 2013, 14 and 15?---
A:I was taking over-the-counter medication and Panadeine to help me cope with it, yes.
Q:What do you mean ‘and Panadeine?’ Is Panadeine a prescription medication?---
A:I beg your pardon, sorry, Panadol.”[34]
[34]Transcript 22, Line 31 – Transcript 23, Line 6
65Later in the cross-examination, it was put to the plaintiff:
Q:“Your back pain was not really a problem until you started at Beckwith and started to do heavier work at Beckwith; do you agree?---
A:No, as I said, I had been taking over-the-counter medication before that.”[35]
[35]Transcript 25, Lines 19-22
66The plaintiff, further on in his evidence, stated that he takes Panadol every day, and said he takes two Panadol every day before he goes to work.[36]
[36]Transcript 32-33
67I accept that the plaintiff takes Panadol to deal with the level of pain he suffers prior to going to work every day. While Panadol is an over-the-counter pain-relief medication, I find that the necessity for the plaintiff to take Panadol regularly before he goes to work is a very considerable consequence.
Activities of daily living
68The plaintiff frankly stated that he was able to perform vacuuming and cooking tasks within the house.[37] The plaintiff denied that he would hang the washing out or do any of the shopping. Those were tasks performed by his wife. I accept the plaintiff’s ability to partake in some of the household activities such as mowing are limited and that he requires the assistance of his father-in-law to perform that task.
[37]Transcript 34, Lines 20-29
69This is consistent with the plaintiff’s stoical approach to life and “just getting on with it”.
Sport
70The plaintiff, in his first affidavit, stated that he used to enjoy playing golf approximately fortnightly but was now no longer able to engage in that activity since the time of his operation.[38] The plaintiff’s wife supports that proposition in her affidavit, and she was not cross-examined about it.[39] The plaintiff was cross-examined about his golfing activities. He frankly stated that he was not a member of a golf club and that he had never been a member of a golf club. In re-examination, the plaintiff clarified that he would play golf every second weekend.[40]
[38]PCB 17
[39]PCB 19
[40]Transcript 41
71I accept that the fact that the plaintiff cannot engage in the recreational activity and sport of playing golf as he reached his age of fifty, is a very considerable consequence. This consequence has been in place since he had his operation in 2011.
72The fact that the plaintiff has been suffering the consequences referred to above since the age of forty years, and will continue to suffer from pain and disability for a considerable time into the future, is of itself a very considerable consequence.
Conclusion
73I am satisfied that the plaintiff has satisfied the statutory test that the consequences of the injury to his lower back, when considered in the range of possible consequences arising from that lower back injury, are “more than significant or marked” and they are best described as being “at least very considerable”. I accept the consequences will be for the foreseeable future.
74The plaintiff’s application for leave to commence proceedings for damages for pain and suffering arising from, and as a result of injury sustained during the course of his employment between 20 October 1999 and 30 June 2013, is granted.
75The question of costs is reserved.
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