McIntyre v Transport Accident Commission
[2019] VCC 1050
•12 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-05252
| JAMES EDWARD McINTYRE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 April 2019 | |
DATE OF JUDGMENT: | 12 July 2019 | |
CASE MAY BE CITED AS: | McIntyre v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1050 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – s93 – rear-end collision – injury to the spine – paragraph (a) of definition of serious injury – Richards v Wylie (2001) 1 VR 79 – whether back symptoms related to accident – whether burden of proof satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram SC with Mr M Ruddle | Verduci Lawyers |
| For the Defendant | Mr G Lewis QC with Ms S Manova | Solicitor for the Transport Accident Commission |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s93(4)(d) of the Transport Accident Act 1986, (hereinafter referred to as “the Act”). In bringing his claim, the plaintiff relies upon paragraph (a) of the definition of “serious injury” found in s93(17) of the Act. Insofar as any psychological or psychiatric consequences of the injury are concerned, the plaintiff does not rely specifically upon paragraph (c) of the definition. However, I appreciate that such matters can be taken into account in the way employed in Richards & Anor v Wylie (2000) 1 VR 79.
2 The plaintiff relies upon an injury sustained in a motor vehicle accident which occurred on 24 May 2011, when the vehicle which he was driving was struck in the rear by another vehicle. This shall hereinafter be referred to as “the accident”. There was no challenge in relation to the occurrence or the nature of the accident. The injury relied upon is one to the whole of the spine. This shall hereinafter be referred to as “the injury”. In relation to reliance upon injury to the whole of the spine, counsel for the plaintiff referred to the decision of the Court of Appeal in TAC v Zepic [2013] VSCA 232 – see Transcript (hereinafter referred to as “T”) 1.
3 Mr A Ingram SC with Mr M Ruddle of counsel appeared on behalf of the plaintiff. Mr G Lewis QC with Ms S Manova of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of three affidavits as being true and correct, and was cross-examined. The remainder of the evidence was documentary in nature and was tendered either by consent or without opposition.
Factual background
(a) The plaintiff’s general background
4 The plaintiff is aged 34 years, he having been born in 1985. He is a married man. The plaintiff was educated to and completed Year 12 level. He then attended Victoria University, where he completed Bachelor of Arts and Bachelor of Law degrees. He was an articled clerk and then a solicitor in Yarrawonga. He also completed a Masters in Law at Deakin University. Some health problems were encountered and I shall return to those subsequently.
5 In November 2010, the plaintiff became a solicitor with the Victorian Commission for Gaming Regulation on a 12 month contract. It was whilst he was engaged in this employment that the accident occurred. From November 2011 until July 2013, the plaintiff practised as a barrister. Subsequently, the plaintiff was employed as a solicitor with Goodman Lawyers. He then worked for another firm, whilst at the same time conducting an entity called Surf Coast Law from his home in Moriac. In June 2015, he commenced employment with Verduci Lawyers, the solicitors he has retained in the present application, and continues to work there. Nominally, Surf Coast Law may still exist, but, as I understand it, little, if any, work is performed in that name.
(b) The plaintiff as a witness
6 I accept that the plaintiff was doing his best to answer questions accurately. I note that Dr Michael Epstein, consultant psychiatrist, who examined the plaintiff on behalf of both parties, referred to him as being pleasant, polite and cooperative. Mr Michael Khan, orthopaedic surgeon, who examined the plaintiff at the request of his solicitors, referred to him as being pleasant, whilst Mr David Brownbill, consultant neurosurgeon, who examined the plaintiff at the request of both parties, described him as being alert, cooperative without embellishment and appearing straightforward in his presentation, remarks which he set out in two reports some three years apart. Those observations coincide with the manner in which the plaintiff presented in the witness box. As submitted by Mr Ingram in his closing address, the plaintiff made appropriate concessions and his evidence was given in a frank and forthright manner. I am of the view that he was doing his best to give accurate evidence and I accept it.
(c) The state of the plaintiff’s health prior to the accident
7 The plaintiff had a number of health problems prior to the accident. He is a very large man and the word “obese” appears in several medical reports. I suspect that this was the case prior to the accident. I note that the plaintiff told Dr Epstein that he had always had a heavy build, Dr Epstein describing him as heavily obese. Mr John O’Brien, who examined the plaintiff almost four and a half years ago, described him as being significantly overweight. Whilst that was a few years after the accident, the overall impression which I have formed is that he has carried a large amount of weight for many years.
8 It is also clear that the plaintiff had suffered from depression and anxiety prior to the accident. The clinical notes obtained from PHC Frankston include a reference to a history of depression and anxiety since 2008, with the plaintiff taking Zoloft and giving a history of being on medication for the previous three years. Tragically, in September 2010, he was talking on the telephone with his father, who apparently collapsed and died whilst this was occurring. Whilst working in Yarrawonga, he received treatment for anxiety and like symptoms, which included a severe panic attack. This seems to have pre-dated the death of his father and any problems associated with that event.
9 In 2006, the plaintiff began developing some contraction in his left little and ring fingers and this problem became progressively worse. This ultimately resulted in surgery to the palm of the left hand, which was performed at St Vincent’s Private Hospital in 2012, after the accident. I would refer to Plaintiff’s Court Book (hereinafter referred to as “PCB”) 62 and T27 – 28.
10 The plaintiff has a lengthy history of back problems. He informed Dr Epstein that in 2001 he commenced monthly chiropractic treatment for his back. The 2001 complaint to which I have just referred may have been something of a “one-off” occurrence, but there seems little doubt that the plaintiff had undergone some spinal treatment prior to the accident. I would refer to T16. However, the amount of treatment would not appear to have been great. Certainly he had been seen at PHC Frankston for headaches and neck pain on 21 March 2011.
11
Between July 2008 and July 2010, it would seem that he was seen by Mr Shannon, a chiropractor, on six or seven occasions in relation to stiffness in the low back, some aching and, on one occasion, problems with the neck. At his initial presentation, he described a stiff neck. I might say that the notes from the Wheaton Chiropractic Clinic are not all that easy to decipher.
The face sheet accompanying them refers to stiffness in the lower back on 30 July 2008, that apparently being the time of the plaintiff’s first attendance. In any event, the plaintiff agreed that he had chiropractic treatment which gave him temporary, but not permanent relief, also stating that the condition was nowhere near as significant at that time as after the accident – see T19.
12 Assuming that the history taken by Dr Epstein is accurate (and there is no reason to doubt it), the plaintiff’s problems with depression, anxiety and the like had been of greater moment than the comparatively isolated instances of back and neck complaints. I would also refer to a Mental Health Assessment which appears to be dated 12 January 2011, but is unsigned and incomplete.
(d) The injury, its treatment and diagnosis
13 As stated, the accident occurred on 24 May 2011. On that day, the plaintiff was seen at PHC Frankston. He was complaining of neck pain and lower back pain. In relation to neck pain, it was noted that the plaintiff’s movements were slightly reduced. His lower back was very tender. It would appear that some Di‑Gesic tablets were prescribed and the plaintiff was given a certificate to be absent from work for two days. He returned to work on 27 May 2011, at first avoiding driving and suffering some flashbacks. In the history given to Dr Epstein, the plaintiff stated that he then did not have any specific treatment, although he continued to have neck pain and headaches.
14 On 29 June 2011, the plaintiff presented to Dr Nicholas Shannon, a chiropractor, who has provided a report dated 9 May 2014. The plaintiff was complaining of neck pain and migrainous type headaches following the accident. He recounted a previous history of headaches before the accident, but not of a migrainous type. Apart from the headaches, the plaintiff described neck stiffness, which had increased since the accident and was worse in the morning, as well as being aggravated by desk work. He was taking anti-inflammatories, resting and applying heat. There was no associated referred arm or hand pain or referred leg or foot pain. The plaintiff had normal cervical and lumbar ranges of motion. Tests relating to the neck were positive for local pain, but lower back pain tests were negative. Tenderness and restricted joints were noted at C2-3, C5-6 and T3-4, as well as in the right sacroiliac area. Apparently some plain x-rays were taken of the plaintiff’s cervical and thoracic spine. Minor narrowing was detected at C4-5, C5-6 and C6-7. There was a mild curve convex to the left in the thoracic spine.
15 Dr Shannon was of the view that the plaintiff’s headaches were migrainous in nature and different from the headaches prior to the accident, which were related to tension. The complaints in relation to the neck were most likely the result of a Grade 1 whiplash injury. The minor narrowing of the discs in the neck may have been a contributing factor and was more than likely present prior to the accident. Dr Shannon treated the plaintiff “on and off” until 19 August 2013. The plaintiff responded well to conservative care. With an appropriate conservative management plan, further improvement and reduced pain was expected.
16 Dr Shannon provided a further report on 20 October 2017. He had reassessed the plaintiff on 10 October 2017. The plaintiff described his neck pain as being stiff, with a constant dull ache and occasional sharp twinges with quick movements. The pain was right-sided in nature and localised, with no radicular pain. It did not wake him at night. It was aggravated by sitting for long periods and relieved with simple analgesic medication, stretches and physical therapy. The plaintiff was still experiencing not only migrainous headaches, but also aches of a non-migrainous nature. The headaches occurred two to three times per week, lasted for 30 to 60 minutes and were eased with simple analgesic medication and physical therapy. On examination, the plaintiff had a normal cervical range of motion with no pain or restrictions. He had some tender cervical facet joints and was also tender in some of the muscles.
17 Dr Shannon felt that the headaches being experienced by the plaintiff were of a non-migrainous nature and similar to those from which he suffered before the accident. He was also of the view that the biomechanical joint dysfunction and associated myofascial pain which the plaintiff was experiencing were most likely associated with his sedentary job, lack of physical activity and the minor narrowing of disc spaces in the lower cervical spine, which was suggestive of early joint degeneration. Dr Shannon thought that the plaintiff’s neck pain and headaches had responded well to conservative treatment, although such treatment had not been sought regularly. With an appropriate conservative management plan, a further reduction in symptoms should be obtained.
18 Ms Sathya Sankarasubramanian, physiotherapist, based at the Corio Bay Health Group, Geelong, provided an undated report dealing with three attendances at that establishment in 2013. The plaintiff seems to have complained of headaches, neck pain and back pain. There is a reference to the headache being worsened due to increased work-related and other activities. The diagnosis, with question marks, was of cervicogenic headache and lumbar para-spinal muscle strain or lower lumbar disc irritation.
19 It is apparent that the plaintiff underwent an MRI scan of the cervical, thoracic and lumbar spine on 3 April 2014. It is recorded that the clinical indications were of chronic spinal pain, following a motor vehicle accident in 2011. The low back pain radiated to the legs and there is a reference to radiculopathy. The referring doctor was Dr Saater Tine of the Tristar Medical Group in Grovedale, another suburb of Geelong. The findings of the radiologist were as follows. The MRI of the cervical spine showed straightening and even mild reversal of the cervical lordosis, particularly superiorly. Other aspects were satisfactory. There was a subtle posterior disc bulge at C4-5. The findings resulting from the MRI of the thoracic spine were that there was a subtle posterior disc bulge at T4-5, although thecal sac calibre was generally maintained, as was foraminal patency. There was a minor posterior disc bulge at T6-7, but, as with the cervical spine findings, other aspects appear to have been normal. In relation to the lumbar spine, disc dehydration was noted at L4-5 and L5-S1. At L4-5, there was a generalised disc bulge causing minor thecal sac indentation. A possible annular tear was noted. At L5-S1, there was a central disc protrusion with possible annular tear. This was causing mild thecal sac indentation. Mild bilateral foraminal narrowing was also noted. The S1 nerve root exit was satisfactory. The overall conclusion of the radiologist was that posterior disc bulges were noted at T4/5, T6-7, L4-5 and L5-S1, causing mild thecal sac indentation.
20 A report of 2 October 2018 from the Tristar Medical Group reveals that the plaintiff had been attending that clinic from 3 January 2014. He had given a history of the accident. For issues of back pain, he had attended more than 13 times. He was complaining of low back pain with left sided sciatica, as well as neck pain and upper back pain. The report of Dr Anil Ebrahimkutty contains expression of the opinion that the accident induced injuries had affected the plaintiff in a severely negative way in his capacity for work, social and domestic life. He had received multiple treatments from a variety of practitioners, including a physiotherapist, chiropractor, acupuncturist, pain clinic team and the like. Dr Ebrahimkutty expressed the opinion that, in view of the plaintiff’s chronic pain which had lasted for more than seven years, his prognosis was poor.
21 A certificate from Dr Riandito of the same clinic and dated 6 April 2017 is to the effect that the plaintiff again needed some sessions of physiotherapy. It states that he had physiotherapy after the accident in 2011 until 2014. There was then no physiotherapy done until 2017, as the pain had been tolerable. However, recently the pain had become unbearable and was not relieved by regular painkillers. A brief report from the same doctor to the plaintiff’s solicitors, this being dated 13 October 2017, attached the MRI results, stating that the referral to radiology in April 2014 had been due to the plaintiff’s persistent back pain since the accident.
22 It is apparent that the plaintiff attended another chiropractor, Dr Jeremy Nicks, on 5 April 2017. This was in relation to cervical spine pain, which had begun in 2011 following the accident. The pain radiated to both shoulders, the plaintiff also experiencing frequent headaches, and migraines approximately monthly since the accident. The plaintiff also complained of chronic intermittent lumbar spine pain that had been significant exacerbated by the accident and was gradually increasing in severity. He put its intensity at 6 out of 10. By this time, the plaintiff had undergone a second MRI on 3 October 2017 and to which I shall come shortly. The diagnosis of Dr Nicks was C3-4, L4-5 and L5-S1 disc injuries with L5 intraforaminal nerve irritation causing sciatica. The plaintiff’s condition was a direct result of the accident, his neck pain not having been present previously and his previous minor low back pain beginning to deteriorate after the accident, thereby becoming a much more significant injury.
23 As at the date of the report of Dr Nicks (4 June 2018), the plaintiff had had six consultations in that year. Dr Nicks expressed the view that the prognosis was that the plaintiff will experience a gradual deterioration of his condition over time and would have to manage his injuries with conservative treatment and exercises in order to avoid a more rapid worsening of his condition, as seen between the two MRI scans. Treatment from a neurosurgeon in the foreseeable future was a possibility.
24 As stated, the plaintiff had undergone a second MRI on 3 October 2017, this being upon referral of Dr Kaippilly of the Tristar Medical Group. The MRI appears to have been confined to the lumbar spine. The conclusion of the radiologist was that there was a moderate sized paracentral disc extrusion at L5-S1, causing moderate thecal sac compression and mild compression of the proximal right S1 nerve root. There was mild foraminal narrowing bilaterally at L5-S1, slightly worse on the left, encroaching on the intraforaminal L5 nerves. There was a mild central disc protrusion at L4-5, causing mild thecal sac compression.
25 Dr Ales Aliashkevich, neurosurgeon and spinal surgeon, saw the plaintiff at the request of his solicitors on 19 April 2018, reporting on 23 May. However, the plaintiff was also referred to Dr Aliashkevich as a treating neurosurgeon, the referral having been made by Dr Anal Ebrahimkutty of the Tristar Medical Group.
26 For the moment, I shall deal only with the report of Dr Aliashkevich as the treating neurosurgeon, this effectively being in a letter to Dr Ebrahimkutty on the same day that he saw the plaintiff, namely 25 June 2018. In it, Dr Aliashkevich recounted a history of the accident. He recorded that the plaintiff’s pain had gradually deteriorated thereafter, with increasing symptoms between the shoulder blades, headaches and neck pain, as well as deteriorating pain in the lower back. The plaintiff had noticed pain involving his feet over the past six months, as well as pain in the left buttock and posterior thigh and in addition to persisting lower back pain. The strongest pain was in the lower back and posterior left leg. The plaintiff assessed the intensity of that as being 7-8/10. He also had ongoing pain in the neck and shoulders with an intensity of approximately 4‑5/10. Upon examination, the plaintiff’s movements in the lumbar spine were limited because of pain.
27 Dr Aliashkevich had the benefit of being able to examine an MRI scan of 13 June 2018. It would appear that he may also have had access to that of 3 October 2017. In any event, the plaintiff had had another MRI, this being ordered by Dr Anil Kaippilly, also of Tristar Medical Group. On this occasion, the conclusion of the radiologist was that L5-S1 disc extrusion displaced without compressing the descending right S1 nerve root, similar in appearance to what had been seen in the MRI of 3 October 2017. Dr Aliashkevich reported that the MRI of 13 June 2018 demonstrated persisting sizeable right paracentral L4-5 disc extrusion, similar in appearance to that of 3 October 2017.
28 Dr Aliashkevich set out for Dr Ebrahimkutty a plan of management. He referred to the plaintiff having chronic refractory back and left dominant leg pain, with features of progressive intervertebral disc degeneration and extrusion at L4-S1, dominant on the right side. Bearing in mind the plaintiff’s persisting and disabling pain, there was talk of escalating his treatment towards pain interventions and surgery. An L5-S1 microdiscectomy and hemilaminectomy was considered to be an appropriate procedure. Because of the plaintiff’s weight, the risk of complications was greater than the normal. However, it was apparent that the plaintiff would be happy to proceed with such surgery.
29 I shall return to the other reports of Dr Aliashkevich when discussing medico-legal opinions.
30 Dr Jacquelyn Nash, specialist pain medicine physician, sought the approval of the defendant, which had been meeting some medical expenses, in relation to the costs involved in a CT-guided L5 nerve root epidural injection with local anaesthetic and steroid. This request for approval was on 20 September 2018. At the same time, she sought approval for the costs involved in relation to the plaintiff’s admission for Ketamine infusion and an inpatient pain program with multidisciplinary input from a specialist pain medicine physician, physiotherapy, occupational therapist and psychologist.
31 Dr Nash also reported to the plaintiff’s solicitors on 24 September 2018, indicating that she had first seen the plaintiff on 18 May. This had been upon referral from Dr Ebrahimkutty. Dr Nash made it clear that she was reporting solely in relation to the chronic pain aspect of the plaintiff’s history.
32 To Dr Nash, the plaintiff gave a description of the accident, stating that, immediately following it, he experienced headaches as well as cervical and lumbar spine discomfort. Initially, his neck pain was of greater concern than his lower back pain. However, when he first saw Dr Nash, he rated the lumbar back pain higher in terms of pain score and interference, although cervical neck pain and headaches remained an additional and ongoing issue. He described the pain which he was suffering as being on average 5/10, with escalation to 7/10 at times. There was interference with his sleep and walking ability. There had been an increase in interference with his life from pain over the past few years. The pain was described as persistent. Dr Nash also noted that the plaintiff suffered from moderate stress, but mild depression and anxiety.
33 When seen again on 19 June 2018, the plaintiff’s lumbar spinal pain and left radicular pain had worsened. Dr Nash referred to a repeat MRI of the lumbar spine which had been performed on 13 June 2018. The findings of L4-5 disc desiccation and protrusion without canal stenosis, along with evident disc desiccation at L5-S1 and a right paracentral extrusion without contact to the right S1 nerve root, were similar to what had been observed by the radiologist on 3 October 2017. A treatment plan was suggested.
34 Dr Nash stated that the development of persistent pain had been a direct result of the accident. She described the injuries as being disc degeneration in the spine and disc extrusion resulting in contact with lumbar nerve roots and leg radicular pain. There was also reference to secondary musculoskeletal changes. These matters were increasingly affecting the plaintiff’s ability to participate socially and maintain his performance at work.
35 A brief note to Dr Kaippilly in Belmont, who had apparently also referred the plaintiff to Dr Nash, indicated that the plaintiff had been commenced on a Norspan patch and the hope was expressed that a CT-guided injection could be undertaken in the following six weeks. Apparently, there were problems in getting approval of payment for the type of treatment that was envisaged.
36 On 26 March 2019, Dr Nash reported to the solicitors for the plaintiff. She referred to a medical review of the plaintiff in that year, this revealing an increase in radicular leg pain consistent with the L5 dermatome bilaterally. Although approval had not been obtained for payment of a CT-guided injection, this had been carried out at the request of the plaintiff on 4 February 2019. This had resulted in the plaintiff noticing a clinical reduction in left leg radicular pain. It was planned that there be a CT-guided injection upon the contralateral side at a later date. A trial of a Buprenorphine patch in December 2018 had resulted in some pain reduction. A proposed inpatient stage of pain management had not been approved.
37 A further report from Dr Nash to the plaintiff’s solicitors was provided on 4 April 2019. Effectively, this does not take matters further than the report of 26 March.
38 The plaintiff has also been examined for medico-legal purposes. Mr John O’Brien, orthopaedic surgeon, first examined the plaintiff on 24 November 2014. This examination appears to have been at the request of both the plaintiff’s then solicitors and the defendant. Having described the accident and subsequent problems to Mr O’Brien, the plaintiff stated that he was then experiencing constant midline neck pain, which he assessed at 6/10. At night, he was aware of persistent neck pain and stiffness. He also had constant pain in the lower back, more on the left side and extending into the left buttock. This constant pain was assessed at 7/10.
39 Mr O’Brien diagnosed chronic non-specific cervical and lumbar pain. The delay in the onset of low back pain would suggest that no low back injury occurred at the time of the accident. Mr O’Brien expressed concern in relation to the long-term prognosis. He considered the plaintiff to be only minimally limited in relation to his general domestic, social and recreational activities. An assessment of impairment pursuant to the AMA Guides was made.
40 Mr O’Brien reported again on 27 November 2017, on this occasion apparently only to the plaintiff’s solicitors, having re-examined the plaintiff on that day. The plaintiff was continuing to experience symptoms associated both with the neck and the lower back. He felt that his condition had deteriorated, there being increasing neck pain associated with frontal headaches. Back pain was also more severe and extended into the left buttock and down the left leg. In addition to anti-inflammatory medication, the plaintiff was taking two to four Nurofen tablets per day for pain in both the neck and lower back.
41 Mr O’Brien again diagnosed non-specific cervical pain possibly associated with soft tissue injuries. He also referred to the low back pain as being non- specific. He considered the plaintiff’s condition to be stable, referring to well-established chronic neck and low back pain. He thought that the plaintiff may benefit from a formal multi-discipline pain management program. He was of the view that the prognosis was poor, in that the plaintiff would continue to experience ongoing pain associated with both the cervical and the lumbar spine. Mr O’Brien referred to the plaintiff as being mildly limited in his general, social, domestic and recreational pursuits.
42 Mr O’Brien again reported to the plaintiff’s solicitors on 26 June 2018. He does not seem to have examined the plaintiff again, but had been forwarded reports of the MRI of 3 October 2017 and that of 13 June 2018. He considered that the MRI findings indicated that there was no nerve root compression, which correlated with the physical examination that had been performed. Mr O’Brien could not categorically diagnose specific pathology in relation to pain generation. He concluded that the plaintiff presented with chronic non-specific low back pain accompanied by intermittent leg pain, which possibly may relate to radiological changes indicating the presence of degenerative lumbar spondylosis.
43 Mr O’Brien sent a further letter to the plaintiff’s solicitors on 21 August 2018, having been sent a report of Dr Craig Mills, orthopaedic surgeon, such report being dated 23 April 2018. Mr O’Brien stated that it remained possible that the plaintiff’s symptoms emanated from aggravation of pre-existing cervical and lumbar spondylosis. On a clinical basis, he was unable categorically to define the exact pathology, and thus concluded that the plaintiff presented with chronic non-specific cervical and lumbar symptoms. He considered the plaintiff’s clinical condition to be consistent with the stated cause.
44 Mr O’Brien reported again on 22 October 2018, having re-examined the plaintiff on that day. On this occasion, the report is addressed to the defendant. The plaintiff gave a history that his neck and low back symptoms had remained a constant problem, with some deterioration in the severity of pain, particularly in the lower back and radiating therefrom. He also complained of constant neck pain, worsening during the day. It would seem that the plaintiff assessed the severity of his back pain as being greater than that in the cervical spine area. He was taking Voltaren daily and Panadol most days.
45 Mr O’Brien was of the view that there was no change in the nature and distribution of the pain and that the physical signs remained subjective. There was no evidence of nerve root compromise. He again diagnosed non-specific cervical, low back and left leg pain. He again diagnosed chronic non-specific pain. He thought it consistent with the stated cause and directly related to the effects of the accident. There was no evidence of psychosocial factors affecting the plaintiff’s current clinical condition.
46 Mr O’Brien considered the plaintiff’s clinical condition to be stable. He thought that a multi-disciplinary pain management program would be appropriate. However, given the history of pain, he considered the prognosis to be poor. A pain program might be beneficial in allowing the plaintiff to better manage the pain, but Mr O’Brien was not overly optimistic that the chronic pain could be resolved. The plaintiff remained capable of normal activities of daily living, although not without some difficulty, given the severity of his chronic pain. His overall physical activities also remained limited. Mr O’Brien believed that the plaintiff’s current symptoms had a significant effect on his general, social, domestic and recreational pursuits, concluding with the opinion that it certainly now appeared likely that the situation was permanent.
47 Mr O’Brien wrote again to the plaintiff’s solicitors on 25 October 2018, having been forwarded further medical material. However, he was still of the view that there was no clinical evidence of nerve root compromise. Whilst acknowledging the radiological material, he was not of the opinion that a right sided L5-S1 disc prolapse was the appropriate diagnosis in relation to the plaintiff’s low back and left leg pain. He did not feel that there were indications clinically or radiologically that would warrant the performance of a microdiscectomy.
48 Mr M A Khan, orthopaedic surgeon, saw the plaintiff at the request of his solicitors on 6 February 2018, reporting on 28 February. Mr Khan noted in the history taken that the plaintiff had receiving treatment for depression and anxiety and was being prescribed Zoloft. The history taken by Mr Khan of the sequence of events included that the plaintiff had developed a lump in the region of his forehead after the accident, but did not lose consciousness. He felt pain in the back of his neck and also, “a bit later”, pain in the lower part of the back. Mr Khan also took a history that the plaintiff’s condition had gradually been worsening and that he had developed pain between the shoulder blades associated with headaches and neck pain. He also had an ache gradually developing in the lower part of the back and this had become worse. The back ache had developed a few months following the impact and it had gradually worsened in the last 18 months or so. Mr Khan recorded that the plaintiff had not seen a psychologist for a number of years, but was taking Zoloft for depression, in addition to some prescribed painkilling tablets when the pain increased in the neck and back regions.
49 Mr Khan viewed the reports of the radiological investigations that had taken place. He further stated that the plaintiff developed frontal headaches following the accident. He had required painkilling medication as he started to develop the pain in the neck. The plaintiff was able to continue with his work after a few days off but, four or five months later “approximately”, he started developing pain in the lower part of the back as well, which pain started to radiate down to the left buttock. His neck seemed to be the main site of his problems when seen by Mr Khan. Mr Khan noted again that the back ache had gradually started to develop some months after the accident and had become worse in the last 18 months or so, with well-developed pain going down the left leg and thigh, but without radiculopathy. His view was that there had been some aggravation of degenerative disc disease in the lower part of the lumbar spine at L4-5 and L5-S1. There had been a flare-up of foraminal stenosis and the plaintiff’s overweight condition had contributed to this. The plaintiff was not getting any lasting relief from the pain and stiffness in the neck. Mr Khan thought that the plaintiff was fit for suitable duties as a lawyer, but that the long term prognosis was guarded.
50 On 8 May 2018, Mr Khan forwarded a supplementary report, without seeing the plaintiff again. The purpose of this was essentially for Mr Khan to comment upon the clinical notes of the general practitioner. Having done this, Mr Khan stated that the injuries which he had diagnosed involving the cervical spine and the lower back were consistent with the accident and had been significantly contributed to by it. He added further that the aggravation of pre‑existing degenerative disease in the lower part of the lumbar spine at L4-5 and L5-S1 was to some extent contributed to by the impact of the accident.
51 Mr Khan sent a further letter on 27 June 2018, he having been forwarded a copy of the MRI scan report of 13 June. Having viewed the report, his opinion remained essentially unchanged, he having previously perused the clinical note of the general practitioner of 24 May 2011. His opinion as to the relationship between the accident and the plaintiff’s neck and back condition remained unchanged.
52 Mr Khan wrote to the plaintiff’s solicitors again on 2 August 2018. He had not seen the plaintiff again. He had been sent a copy of the report of Mr Craig Mills of 23 April 2018. He agreed with the opinion of Mr Mills. Mr Khan stated that the plaintiff had suffered substantial aggravation of asymptomatic pre‑existing underlying spondylosis of the cervical and lumbar spine in the accident.
53 I have previously referred to the fact that Dr Ales Aliashkevich had seen the plaintiff upon referral from Dr Ebrahimkutty on 23 June 2018, that doctor having referred the plaintiff to him. Dr Aliashkevich had previously seen the plaintiff for medico-legal purposes, reporting one month earlier on 23 May 2018.
54 On that occasion, the diagnosis of Dr Aliashkevich had been that the accident was a materially contributing factor to a significant exacerbation of a pre-existing degenerative condition of the lumbosacral and cervical spine. He referred to a number of restrictions suffered by the plaintiff in relation to everyday activities. Dr Aliashkevich could not rule out the possibility of surgical decompression of the large L5-S1 intervertebral disc herniation. He regard the plaintiff’s prognosis as being guarded, stating that he suffered from a chronic pain condition and had developed chronic pain syndrome. Dr Aliashkevich doubted that the plaintiff would be able to achieve full functional recovery in the foreseeable future and also agreed with the conclusions of Mr Michael Khan.
55 On 19 November 2018, Dr Aliashkevich provided an updated medical report to the plaintiff’s solicitors, he having seen the plaintiff on that day. The report reads as if it is more in the nature of a medico-legal update. Dr Aliashkevich referred to reports from Dr Craig Mills and Mr John O’Brien, such reports having been provided by the plaintiff’s solicitors. The plaintiff’s description of the level of pain which he was suffering was greater for the low back and legs than for the neck. He continued to have significant limitations in relation to everyday activities.
56 On examination, Dr Aliashkevich noted, inter alia, that the right ankle jerk was absent. There was no sensory deficit identified on pinprick testing. He referred to and set out the radiologist’s report from the MRI performed on 13 June 2018. Dr Aliashkevich continued to be of the view that the accident materially contributed to a significant exacerbation of a pre-existing degenerative condition of the lumbosacral and cervical spine. His views had not been changed by the reports of Dr Mills and Mr O’Brien. The possibility of surgery was discussed. The prognosis was stated to be guarded, the plaintiff having long-standing and intractable chronic pain, with progressively increasing body weight and low tolerance of physical exercise.
57 Dr Aliashkevich disagreed with the opinion of Mr O’Brien in relation to there being no clinical or radiological indications to undertake a microdiscectomy. He observed that, whilst Mr O’Brien did not endorse the proposed microdiscectomy, he did not offer any reasonable treatment alternative for the plaintiff’s disabling and intractable pain.
58 Dr Aliashkevich reported again to the plaintiff’s solicitors on 17 April 2019. It would appear that he did not see the plaintiff again, but had been forwarded reports from Dr Nash. Apparently Dr Aliashkevich had ordered a further MRI, which was carried out on 28 November 2018 and he had reviewed the actual radiology. Indeed, it is apparent that the radiological investigation had been arranged by him, although whether this was in his capacity of a treating surgeon or in a medico-legal context is not clear. The conclusion of the radiologist was that there was an L5-S1 right central-subarticular disc protrusion “stable in size and appearance from the earliest MRI of 03/10/2017 2017 with stable contact on the right descending S1 nerve root”. Dr Aliashkevich added to the radiologist’s opinion that there was also the presence of left dominant foraminal L5-S1 narrowing with irritation of the exiting left L5 nerve root. He expressed the view that the plaintiff’s positive response to the left L5 nerve root injection in February 2019 indicated that a significant amount of the plaintiff’s radicular pain could be originating from this particular nerve root. He again expressed the opinion that a large disc extrusion and foraminal narrowing can often produce pain in the contralateral leg as well. Ongoing pain management and weight loss were important, but, in the event of exacerbated symptoms, consideration could be given to bilateral L5-S1 discectomy and decompression.
59 Dr Craig Mills, orthopaedic surgeon, saw the plaintiff at the request of his solicitors on 23 April 2018, reporting on the same day. He was provided with a number of enclosures. He took a detailed history, including the fact that it was approximately 12 months after the accident that the plaintiff experienced significant low back pain radiating to the left buttock. This became more severe than the neck pain. The plaintiff complained of cervical pain which never fully went away and is usually at about 6/10, although at its worst it is up to 8/10. The low back pain is dull and usually about 6/10. Similarly, its worst is 8/10 and it never goes fully away.
60 Dr Mills diagnosed substantial aggravation of asymptomatic pre-existing underlying spondylosis of the cervical and lumbar spine, implicating the accident as a cause of the injuries. He regarded the prognosis as being only fair. He raised the possibility of the plaintiff requiring intervention by way of either steroid injections and/or surgery. In relation to the cervical spine, the prognosis was for continuing symptoms at the same level, with very slow deterioration over the coming decades.
61 Dr Mills provided an addendum of 2 July 2018, he having been forwarded the MRI of 13 June 2018 and the report of Dr Aliashkevich of 25 June 2018. He noted that, since the time of his review, there had been some progression of the condition, with the loss of the right ankle jerk. He also noted the possibility of surgical intervention but, other than suggesting that the level at which the surgery was planned should be clearly established (there appears to have been a typographical error in one of the documents sent to him), Dr Mills made no other comment, apart from saying that the condition of the plaintiff’s lumbar spine could no longer be considered stabilised for the purposes of an impairment assessment.
62 Dr Mills saw the plaintiff again on 11 October 2018, reporting on 14 October. The plaintiff complained of increased back and leg pain over the six month period since he had last seen Dr Mills. The plaintiff had significant pain in both the left and right buttocks, which pain had increased. He had a constant dull ache in the lumbar spine, the pain being increased by walking, standing and slightly by sitting. There was radiation to both sides, but more to the left. In relation to the possible surgery proposed by Dr Aliashkevich and having been advised of the potential risks, the plaintiff had expressed a preference to exhaust other options.
63 Dr Mills noted that, whilst the right ankle jerk was brisk, the left ankle jerk was barely present. Dr Mills said that there was a probable radiculopathy on the left, given the very substantial diminution of the left ankle jerk. In relation to assessments pursuant to the AMA Guides, Dr Mills noted that there had been a recommendation for surgical treatment and considered the situation to be not stable.
64 Mr David Brownbill, consultant neurosurgeon, appears originally to have seen the plaintiff at the request of both parties, reporting to them jointly on 2 December 2014. Mr Brownbill noted that the earlier pain was in the back of the neck, but that some three or four months after the accident the plaintiff had noticed a gradual onset of pain in the mid-back and also that the lower back was flaring up more than previously. The neck pain had commenced a couple of hours after the accident. To Mr Brownbill, the plaintiff complained of recurring headaches. He also complained of neck stiffness. He mentioned occasional radiating pain to the left buttock, but there was no other leg weakness, pins and needles or numbness.
65 Essentially, on examination, Mr Brownbill found little that was abnormal. He also reviewed the radiological reports which had been forwarded to him. The diagnosis of Mr Brownbill was that, “on probability”, the plaintiff sustained soft tissue injuries to structures around the cervical spine, giving rise at first to neck stiffness and pain, but without cervical spine disc prolapse. Given that the mid and lower back pains commenced some three or four months after the accident, Mr Brownbill considered that, “on probability”, such pain was not related to any specific damage sustained in the accident. As a consequence of the soft tissue damage sustained to structures around the plaintiff’s cervical spine, Mr Brownbill considered that he was likely to be restricted in relation to social, domestic and recreational activities to a moderate degree, and that such incapacity may continue for the foreseeable future. He was not of the view that there were any relevant pre-existing injuries or conditions.
66 Mr Brownbill felt that the plaintiff’s headaches may be contributed to by the soft tissue damage sustained in the cervical spine. The plaintiff was not likely to require surgery. It is apparent that assessment pursuant to the AMA Guides was at least one of the objectives, if not the principal objective, of this examination. Mr Brownbill regarded the plaintiff’s condition as stabilised from the neurosurgical point of view, but could find no assessable abnormality. He stated that assessment of soft tissue injuries sustained about the spine lies within the orthopaedic surgical province.
67 Mr Brownbill saw the plaintiff again on 12 December 2017. The plaintiff stated that, in terms of his neck, his symptoms were the same as when he had last seen Mr Brownbill, but his lower back pain had increased. His neck pain had not changed over the preceding four years, but his low back pain had progressively increased over the preceding 12 months.
68 The examination carried out by Mr Brownbill produced essentially normal results, although there was some reduction in thoracolumbar spinal flexion. Mr Brownbill also noted the findings of the MRI of the lumbar spine on 3 October 2017. He commented that the radiological investigations did not demonstrate any cervical spinal nerve root compression or cervical spine disc prolapse. He continued to be of the view that the plaintiff probably sustained soft tissue injuries to structures about the cervical spine, giving rise at first to neck stiffness and neck pain and the subjective ongoing feeling of neck stiffness, but without cervical spine disc prolapse.
69 Given that mid and lower back pains did not commence until some three to four months after the accident, Mr Brownbill again considered that, on probability, such pain was not related to any specific damage sustained in the accident. He regarded the plaintiff’s condition as stabilised. On the information provided, he was of the view that the described neck stiffness and pain commenced with the accident and had continued since.
70 Mr Brownbill reported to the plaintiff’s solicitors for the third time on 6 July 2018. He does not seem to have seen the plaintiff again. The plaintiff’s solicitors had forwarded to him the radiological report of the MRI on 13 June 2018. Mr Brownbill did not modify the observations which he had made in the earlier reports.
71 In relation to the plaintiff’s psychiatric condition, Dr Michael Epstein reported to both parties on 7 November 2014. At least part of the reason for his examination of the plaintiff related to assessment of the percentage of psychiatric impairment. Dr Epstein took a comprehensive history. He noted that the plaintiff had seen a psychologist in Wangaratta in 2010, this following a panic disorder and anxiety in January 2008. Dr Epstein described the plaintiff as being mildly anxious whilst driving and having some mild symptoms of traumatisation. The plaintiff had a longstanding generalised anxiety disorder with panic disorder that may have been made a little worse as a result of the accident. He had very mild symptoms of traumatisation and mild symptoms of depression, which appear to have been present for many years and may have been made a little worse by the accident. There was no effect on work capacity. An assessment of permanent psychiatric impairment was made.
72 Certainly there is not unanimity of diagnoses in this matter and that is particularly so in relation to the plaintiff’s low back condition. At least part of the conflicting observations concerning the plaintiff’s low back condition could trace back to whether or not the plaintiff made any contemporaneous or early complaint concerning his back following the transport accident.
73 The plaintiff’s position is that low back pain was present from the time of the accident, but for a few months it was overshadowed by symptoms emanating from the cervical spine. There seems to me to be some force in this proposition and I accept it. The accident occurred on 24 May 2011. Following the accident, the plaintiff was seen at PHC Frankston. The relevant clinical notes and medical history from that entity have been placed in evidence. The entry for 24 May 2011 refers to the accident and a bruise on the right side of the plaintiff’s forehead. It then has the following words:
“(a) Also has some neck pain”
“also lower back”.
“neck pain. Movements slightly reduced”
“Lower back very tender”.
“also has some neck pain”
74 Thus, the evidence leaves no doubt in my mind but that, almost immediately after the accident, the plaintiff was complaining of pain in the lower back, which was very tender. The history taken by Mr Brownbill, for example, refers to a gradual onset of pain in the mid back about three to four months following the accident and also at that time “the lower back was flaring up more than previously”. In answer to direct questioning by Mr Brownbill, the plaintiff indicated that the neck pain commenced a couple of hours after the accident and the mid-back pain and increase of lower back pain commenced about three or four months after the accident. This is somewhat ambiguous, but Mr Brownbill had previously obtained a history of pre-accident mild intermittent low back pain. Mr O’Brien has a history of the onset of some low back pain predominantly related to the left buttock in early to mid-2012. I am not suggesting any fault or carelessness on the part of those examiners in relation to history taking. However, the fact remains that an examination of the details obtained by PHC Frankston on the day of the accident clearly refer to the low back being painful and very tender.
75 Mr Khan also took a history that the plaintiff’s condition gradually worsened. He started to develop pain between his shoulder blades, associated with headaches and some pain in the neck. He had an ache gradually developing in the lower part of the back, which became worse. The back ache had developed a few months later following the impact and had gradually become worse “in the last 18 months or so”. (It was noted that he had not seen a psychologist for a number of years, but was continuing to take Zoloft for depression. He also took some painkilling tablets.)
76 It is to be remembered that the plaintiff is a person who has impressed medical examiners and myself as being a cooperative and straightforward person. The plaintiff makes no secret of the fact that, in the early months after the accident, he was considerably more conscious of neck pain, as opposed to low back pain. However, the low back pain became more noticeable to the extent of virtually being the predominant symptom. This is a proposition which I accept. I also accept the proposition that there was a period of comparative quiescence of symptoms for a period of a couple of years before they became more pronounced. The bottom line is that I accept that the plaintiff injured his low back in the accident and that the pain and restrictions from which he ultimately suffered result from that accident. In this regard, I prefer and accept the opinions of Dr Aliashkevich and Dr Mills. It is a conclusion that is also inherent in the opinion expressed by the general practitioner, Dr Ebrahimkutty.
77 I also prefer their opinions, and particularly those of Dr Aliashkevich and Dr Mills, in relation to diagnosis. The views of Dr Nash, the specialist pain medicine physician who has treated the plaintiff, largely coincides with the opinions of those doctors. Their diagnoses also seem to be in accordance with what has been discovered on radiological investigation. Dr Nash has referred to the effects of the injuries as including disc degeneration in the spine and disc extrusion resulting in contact with lumbar nerve roots and leg radicular pain. Dr Aliashkevich has referred to the fact that a significant amount of the plaintiff’s radicular pain could be originating from the left L5 nerve root. He has also expressed the opinion that the accident was a materially contributing factor to a significant exacerbation of a pre‑existing degeneration condition of the lumbosacral and cervical spine.
78 In summary, I accept that, as a result of the accident, the plaintiff suffered what was described by Dr Aliashkevich as a significant exacerbation of a pre-existing degenerative condition of the cervical and lumbar spine. As observed by Dr Mills, there is probably radiculopathy on the left, given the very substantial diminution of the left ankle jerk. For the purposes of Richards v Wylie, I accept that the plaintiff has also suffered the aggravation of a longstanding Anxiety Disorder with Panic Disorder. Whilst there may have been some resultant negative effect upon the plaintiff’s mental health, as opined by Dr Ebrahimkutty, such aggravation may not be of great magnitude. I would refer again to the report of Dr Epstein.
79 Further, I am of the view that the consequences of the impairment or loss of function of the spine are long-term within the meaning of the definition. Mr Khan described the long-term prognosis as being guarded. Dr Mills stated that the prognosis was only fair, there being increasing symptoms in the lumbar spine. He regarded the condition of the plaintiff’s cervical spine as being stable for the purposes of impairment assessment. Dr Aliashkevich described the plaintiff’s prognosis as being guarded, referring to the longstanding and intractable character of his chronic pain. The plaintiff’s treating general practitioner, Dr Ebrahimkutty, has referred to the plaintiff’s pain as being chronic and the prognosis as being poor. Mr O’Brien, in his report to the defendant of 22 October 2018, referred to the plaintiff’s spinal pain as being chronic, also stating that the prognosis is poor. In relation to the plaintiff’s mental health, Dr Epstein has stated that the plaintiff’s condition appears to be stable. Dr Epstein was prepared to make an assessment of psychiatric impairment pursuant to the Guide to the Evaluation of Psychiatric Impairment for Clinicians. Bearing all of this in mind, I have concluded that the relevant consequences of the accident are long-term within the meaning of the Act.
80 As stated, the plaintiff has suffered from a pre-existing degenerative condition of the cervical and lumbar spine. Accordingly, the consequences of the accident which I take into account are those resulting from it and which constitute the significant exacerbation to which I have referred. In relation to the plaintiff’s spinal symptomatology, I do not take into account symptoms or restrictions which were present prior to the accident. I am adopting the same approach in relation to any problems of mental health and note the distinction between the plaintiff’s general psychiatric impairment and that arising from the accident as set out in the report of Dr Epstein. As earlier stated, symptoms and restrictions of this nature shall only be taken into account for the purposes of Richards v Wylie.
Other developments since the accident
81 At the time of the accident, the plaintiff was employed with the Victorian Commission for Gambling and Liquor Regulation on a full-time basis and on a contract for 12 months. At the expiry of that contract, he decided to go to the Bar. He resigned from his position with the government and in approximately July or August 2011 commenced the Bar Readers Course. In July 2012, he underwent surgery on his left ring and little fingers. In relation to his tendons, some reconstructive surgery was performed. He was off work for approximately a week, but has been left with some contracture, especially of his left little finger. He had a flare-up of neck and lower back pain in late 2012 or early 2013.
82 In July 2013, the plaintiff ceased working as a barrister and commenced work with a firm of solicitors in Melbourne. He married on 21 September 2013 and had a honeymoon in Hawaii. In August 2014, he began working with a firm of solicitors in Toorak, working four days per week. In 2015, he commenced employment with the firm of solicitors for which he still works and who are acting for him in this application. For some years he has been residing at Moriac, which is not far from Geelong. As earlier mentioned, for a period he conducted a solicitor’s practice from his home, but little work is now done in that regard. Comparatively recently, he and his wife went on a trip to the United States of America. He did quite an amount of driving, but that included some stops. He stated in evidence that he experienced pain, but managed it by taking medication as required. It would seem that he attempted, unsuccessfully, to pass the New York Bar Examination. This was at the start of his trip. He did most of the driving, although his wife also did some. This trip to America and the sitting for the examination appears to have taken place in early 2018. I would refer to T36 and following pages.
Ruling
83 I am of the view that the plaintiff has discharged the burden of proof in this matter. In other words, the applicable test as set out in Humphries & Anor v Poljak [1992] 2 VR 129 has been satisfied. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(a) As was said by Brooking JA in Palmer Tubes Mills Aust Pty Ltd v Semi [1998] 4 VR 439 at [448] as follows:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance …”
This observation has been referred to more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and in Haidar v Transport Accident Commission [2016] VSCA 182. As earlier stated, I regard the plaintiff as being an honest and accurate witness. I accept both his oral evidence and what is contained in his affidavits.
(b) In his most recent affidavit of 31 October 2018, the plaintiff has sworn as to headaches associated with neck pain occurring three to four times per week. He has sworn that the pain in his lower back is constant, though the severity of the pain can vary. Such pain generally radiates into his left leg and buttock, and more recently he has been experiencing significant pain in his feet. As was said in Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
To Dr Mills, the plaintiff complained of a dull ache in the neck which is there 24 hours per day, seven days per week. The usual pain level is 6/10. Similarly, his low back pain never goes away fully and usually is at about 6/10, 8/10 at its worst. Mr O’Brien has set out in his report of 22 October 2018 to the defendant that the plaintiff was complaining of constant neck and low back pain, with various factors aggravating it. I accept that he does suffer from permanent daily spinal pain and that he takes prescription-strength Voltaren three to four times per week. He has also sworn that he is taking regular analgesic medication, such as Panadol or Nurofen.
(c)In his most recent affidavit of 31 October 2018, the plaintiff has sworn that his sleep remains greatly disturbed. This was also referred to in his earlier affidavits. In Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Maxwell P stated as follows:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”
(d) The plaintiff has sworn in his affidavits that his intimate relations with his wife are greatly impaired as a result of spinal pain. This is also a matter of importance.
(e) Whilst the psychological or psychiatric consequences may not play a predominant role in the plaintiff’s pain and suffering, nevertheless, in accordance with Richards v Wylie, they can be taken into account. The plaintiff’s treating general practitioner, Dr Ebrahimkutty, has stated in his report of 2 October 2018 that the injury has affected the plaintiff’s mental health in a negative way. Dr Epstein, whilst referring to the plaintiff’s psychological or psychiatric symptoms as being mild, nevertheless was prepared to make an assessment on the basis that there was some psychiatric impairment arising from the accident. This can be taken into account.
(f) The consequences of the injury have impacted upon the plaintiff’s everyday life and his enjoyment of it. As he swore in his affidavit of 19 April 2018 and repeated in his most recent affidavit, in general terms all of his former social, recreational and domestic activities are impaired. He is unable to play golf, something which he has mentioned to a number of examiners (for example, Mr Brownbill). His ability to perform household tasks has been affected. It is now difficult for him to work in the garden. He has had to modify the performance of various everyday tasks so as to accommodate his spinal problems. In addition, he is a member of his local fire brigade. His spinal pain has interfered with his ability to carry out his duties as a volunteer firefighter. Essentially, he is now restricted to non-fire ground duties. In his affidavit of 31 October 2018, he placed considerable emphasis upon this, and it clearly means a great deal to him.
84 Bearing in mind all of the above, I find that the plaintiff has discharged the burden of proof. He has satisfied the requirements of the test set out in Humphries v Poljak.
85 In conclusion, the plaintiff is successful. He has discharged the burden of proof. Leave is granted to him to bring proceedings. I shall hear the parties as to any ancillary orders that are required.
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