Mecanovic v Mannagum Enterprises Pty Ltd and VWA
[2011] VCC 1477
•20 October 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04626
| IVICA MECANOVIC | Plaintiff |
| v | |
| MANNAGUM ENTERPRISES PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 October 2011 |
| DATE OF JUDGMENT: | 20 October 2011 |
| CASE MAY BE CITED AS: | Mecanovic v Mannagum Enterprises Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1477 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell | Slater & Gordon |
| Ms M Pilipasidis | ||
| For the Defendants | Mr J Batten | Herbert Geer |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 14 November 2006 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 Subsection 38(h) provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities.
9 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602.
12 The plaintiff relied upon one affidavit and he was cross-examined. The plaintiff’s former partner, Victoria O’Grady, swore an affidavit on 6 May 2011. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
13 The plaintiff is aged twenty six, having been born in Brisbane in 1985. He finished his secondary schooling at the end of Year 11 and thereafter had a few short term casual jobs. He worked part time as a gaming room attendant and did some factory work and worked as a car dealer and door to door salesman.
14 In cross-examination, the plaintiff said when he was just out of school at the age of fifteen in May 2000, he first registered with an employment agency M H S Group. He was looking for any type of work at that stage. He was not sure how long he was with the agency. He worked in car detailing for about two weeks. He worked at the chicken factory only a couple of days because the work ran out.
15 When the plaintiff left school he was not too sure what he wanted to do. In his late teens he did a gaming attendant’s course. In 2004 he worked for six months at the West End Hotel The following year he worked in a similar capacity at the Glengala Hotel for a couple of months.
16 The plaintiff worked at TIC Reverse Logistics when he was about eighteen or nineteen but he could not recall what job he did there. For about a month or two in 2005, he worked as a traffic controller, with Traffic Diversions Group Pty Ltd.
17 During 2005, there were periods when the plaintiff was out of work and he received Centrelink benefits. Further, prior to the said date the plaintiff started a real estate agent’s course.
18 The plaintiff commenced work with the first defendant on 2 October 2006. Prior to that date, the plaintiff had not had any problems with his back.
19 The plaintiff’s duties involved working as a delivery jockey, delivering items such as fridges, freezers and sinks to places for catering purposes. The plaintiff was required to assist with loading and unloading of those items and positioning them at various places at which they were being used.
20 The plaintiff injured his back on the said date whilst wheeling a large fridge on a trolley down stairs from a marquee at the Flemington Racecourse. As he wheeled the trolley down the first step, the plaintiff felt severe pain and a feeling like an “electric shock” in his lower back and legs. He tried pulling the fridge back up to the top of the stairs and it then fell back onto him and down the stairs (“the incident”).
21 The plaintiff however resumed working on the day of the incident. The following day he saw his treating doctor, Dr Asthana. The plaintiff then went off work, commenced physiotherapy and started taking painkillers and anti inflammatory medication.
22 In cross-examination, the plaintiff confirmed he lodged a claim in relation to the incident. At that time he was living with his father in Taylor’s Hill. The plaintiff was confused about whether he received weekly payments initially but then he agreed he did and that his weekly payments were terminated in January 2007 on the basis he was no longer incapacitated.
23 The plaintiff then brought proceedings seeking weekly payments. A settlement was reached whereby he received payments from November 2006 until January 2008. During that period, the plaintiff did not look for any work at all. He was just in pain and he was depressed.
24 The plaintiff deposed that he next worked in January or February 2010 for his uncle in his plumbing business. This work was with a view to carrying out a plumbing apprenticeship.
25 On the second day of work, the plaintiff suffered severe pain in his lower back and legs. He was taken to the physiotherapist from where he was taken to Sunshine Hospital by ambulance where he was given strong painkillers. Two days later the plaintiff was again taken by ambulance to Sunshine Hospital because of severe back pain and swelling of his feet. He was then on crutches for a few weeks.
26 In cross-examination, the plaintiff said that he set up the job with his uncle, who had asked him if he wanted a job. His uncle conducts T & P Plumbing in the western suburbs. The plaintiff denied his father directed him towards the apprenticeship and said his father did not mind what he did.
27 The plaintiff did not sign apprenticeship papers but he was aware it was a four year apprenticeship and that he would be required to also do a technical course. The plaintiff wanted to just move on with his life and do something in which he would get a career. His uncle told him eventually if the plaintiff wanted to, the plaintiff could take over the business.
28 The plaintiff hurt himself on the second day in that job, hopping off the back of a ute. As he hopped off and landed, his back “just all cringed up” and he could not use his legs and he was hanging on the side screaming and crying for his uncle (“the second incident”).
29 Following the second incident, the plaintiff’s uncle him to the physiotherapist from where he was taken by ambulance to the hospital as he could not get off the bed.
30 When asked about the entry in the Sunshine Hospital records on 29 January 2010, the plaintiff initially denied that he had given a history of intermittent low back pain over the past four years, saying his pain was not on and off and he had pain all the time. He later agreed he did have back pain on and off, with good days and bad days prior to the second incident.
31 The plaintiff disagreed that before the second incident he was pain free. He had been taking Panadeine Forte at that time. He agreed he had not seen Dr Asthana for five months before that incident and explained he just wanted to move on with his life. He just wanted to do normal day things and try and ignore his pain.
32 The plaintiff agreed he had severe back pain after the second incident in the same area as his original injury and he was on crutches for two weeks. His back then stabilised returning to its condition before the second incident.
33 In 2010, the plaintiff had further physiotherapy sessions at the Total Wellness Physiotherapy Clinic in Keilor Downs.
34 The plaintiff did not lodge a claim in relation to the second incident.
Progress and Pain
35 In May 2010, the plaintiff deposed that he had constant low back pain and sometimes he got electric shock like feelings in his back. The pain increased with activity. He found if he was seated or stood in one position for too long he had to move around a bit to try and ease back pain and feelings of discomfort in his buttocks. He also had an annoying constant ache at the front of his thighs.
36 The plaintiff then often found it difficult bending down to put on his shoes and socks and movements involving bending and twisting could aggravate the back pain. He often woke with back pain.
37 In cross-examination, the plaintiff confirmed he has ongoing pain in his lower back. He disagreed it was made considerably worse with the second incident. His pain was bad for two weeks after that incident and he could not walk. His back then returned to its condition before the second incident.
38 The plaintiff confirmed, as he deposed in 2010, he currently has constant low back pain.
39 In re-examination, the plaintiff said he had not been free of back pain since the incident and it is the same now as before the second injury and he had been using Panadeine Forte before the second incident.
40 In re-examination the plaintiff said that he gets pain when sitting down and standing but he can drive. If he does not take Panadeine Forte he cannot sleep. The medication makes him tired. He can still feel the pain when taking the medication.
41 The plaintiff’s pain varies. He has problems after standing at work for six hours. When he gets home from work, he has to lie down for a bit because he is sore in his legs and thighs, as well as his back. It is always a constant feeling like a pinching electric shock in his back and his legs.
42 The pain is there in the morning when he wakes and when he goes to bed and it varies during the day. It is worse with activity than just sitting there. The plaintiff can do housework, shopping and the like but he gets back pain when undertaking these tasks. However he has to do them because there is no one else to assist him.
43 The plaintiff deposed that after the incident he was prescribed anti depressant medication for a short time. He got depressed thinking about how the incident had limited his work possibilities and also as a result of his constant pain. He lost a lot of enthusiasm for doing things.
44 At that stage, the plaintiff was still under Dr Asthana who had prescribed Panadeine Forte, four tablets a day for pain relief. The plaintiff was also referred to Mr Ian Jones, orthopaedic surgeon.
45 In cross-examination, when asked what he meant by depressed, the plaintiff explained that he had a heavy feeling in his chest like someone was sitting on his chest every day when he woke up. He just felt some days that he wanted to do things and then he “got pain all the time and it is annoying”. He has felt like this for some time.
46 The plaintiff has recently been asked if he wants to take Effexor again but he does not want to. He last took it a couple of years ago. Neither Effexor nor any other medication the plaintiff has taken in relation to his back condition has been claimed through WorkCover.
47 In cross-examination, the plaintiff was asked about his general practitioners clinical notes in March 2009. The plaintiff agreed that he was prescribed Effexor at around that time. He said he was depressed because of his back, as well as not working, and just with everyday life.
48 Effexor was prescribed on two occasions. The plaintiff did not like taking Effexor because it meant he did not have any feeling. He did not even feel happy, he did not feel sad.
49 The plaintiff has not seen a psychologist although Dr Asthana reported he had referred the plaintiff for such treatment.
50 In cross-examination, the plaintiff denied that he was worried about his court case.
Current Treatment
51 In examination-in-chief, the plaintiff said that he takes Panadeine Forte which he obtains from his doctor, Dr Yong, in Keilor Downs. He sees Dr Yong approximately once a month. He takes six Panadeine Forte every day.
52 The only treatment the plaintiff has had recently is from his general practitioner who has advised he continues to take Panadeine Forte.
53 The plaintiff takes that medication in the morning and then at lunchtime. He also takes tablets before he goes to sleep. However, the tablets make him feel sick in the stomach and cause him difficulties going to the toilet.
54 Whilst his doctor’s notes only set out two prescriptions for Panadeine Forte, the plaintiff explained that he obtained repeat prescriptions and also he took his father’s Panadeine Forte. The plaintiff does not take any over the counter medication.
Other Treatment
55 In 2007, after the incident, the plaintiff attended a gym where he underwent hydrotherapy and exercises for a week with five free sessions. He has never joined a gym because he did not feel up to it.
56 The plaintiff also had five treatment sessions from a physiotherapist after the incident until May 2007 at the Wellness centre.
57 The plaintiff did not continue physiotherapy because it did not really change his condition and the same feeling came back in his back and thighs.
58 Sometimes the plaintiff does exercises he has been given by his physiotherapist and he also uses an exercise ball at home.
Current Job
59 In cross-examination, the plaintiff said that before obtaining the job at the Deer Park Hotel in August 2010, he just spent time at home with his girlfriend and his family and seeing friends. He denied he was being pressured into obtaining a job.
60 In examination in chief, the plaintiff explained that in August 2010, he obtained a job at the Deer Park Hotel as a gaming attendant on his own application, renewing his existing gaming licence.
61 On average the plaintiff currently works twenty eight hours a week on a casual basis. His duties involve standing behind the bar serving drinks, doing pay books – paying people out on the floor – cleaning up the venue and standing behind the cashier paying money. He copes with it “okay” but he gets back pain with his duties.
62 In re-examination, the plaintiff explained that he returned to gaming work because it was lighter work and he did not have to lift anything major. He was serving people at the bar doing cashier work and it was not a very physical job and he needed the money.
63 The plaintiff always has back pain, which varies according the amount of work he undertakes. If he stands at work for his six hour shift, when he gets home he is sore – all in his legs – and at the top of his thighs like someone is pinching him. He then lies down and takes Panadeine Forte. His former partner Victoria used to massage his back when he got home from work.
64 At work, it is hard for the plaintiff to move the drop boxes at work which contain up to 500 coins. He can carry two boxes at a time, one in each hand. The plaintiff has to pick them up with care to ensure he does not experience the pain like he did in the second incident.
65 The plaintiff is not coping physically in his current employment. His back hurts with the prolonged standing doing his duties and he has to take tablets at work. He does not intend to continue with the job. He does not like the job. He has volunteered with CRS until he finds something else.
66 In cross-examination, the plaintiff said that he is not receiving Centrelink benefits at the moment but he attends CRS Group, which helps him to obtain lighter work and “things like that to help you with what’s wrong”. He attended CRS because his work as a gaming attendant is hard on his back.
67 The plaintiff attends CRS to help him get back on track, as in finding a job that he wants to do that suits his back issue.
68 In re-examination, in terms of future work, the plaintiff said that he could do a job car detailing but he would have to do it with back pain and he did not think he wanted to do it because it would be too painful. Working in a chicken factory would also be too painful. The plaintiff thought maybe some sort of office job or work in real estate may be suitable for him.
Domestic Life
69 When the plaintiff swore his first affidavit in May 2010, he was living with his father and a brother. His father was quite ill with Wegener’s disease which limited his capacity to do a lot of things. Thus, with his father’s illness, the plaintiff’s back injury, and his brother working, the plaintiff’s mother sometimes visited and did the housework. The plaintiff and his father paid for someone to mow the lawns.
70 The plaintiff also has a younger brother and the back injury prevented the plaintiff from doing things and playing ball games with him.
71 The plaintiff had a girlfriend and their relationship was affected by his back injury. He was then at the stage where he would like to be saving and planning for his future but this was difficult.
72 In cross-examination the plaintiff said that he lived with his father until six months ago and then lived with his girlfriend, Victoria, until they split up two months ago.
73 The plaintiff confirmed he was with Victoria for a couple of years and lived with her in rented accommodation, both with his father and just the two of them. The plaintiff denied he had a good and healthy relationship with her.
74 The plaintiff now lives in rented accommodation with a friend.
Activities
75 The plaintiff deposed that prior to the incident he was quite active. He enjoyed keeping fit and sometimes went on runs and to the gym to maintain fitness. He also enjoyed playing soccer with friends. He had played competitive soccer as a child and this was something he could no longer do.
76 In cross-examination, the plaintiff confirmed that he played soccer competitively until the age of thirteen. Since then he has played here and there but not for a club. Until the age of fourteen he used to have a kick with his mates in the park. He owns a soccer ball which he kicks around with the dog in the backyard. He could play social soccer but he would do so with pain.
77 Before the incident the plaintiff attended the gym where he did a lot of weights and bench presses but not full on body building, just working out to look good.
78 Since the incident, the plaintiff does not run like he did before. He gets worried about that feeling like in the second injury when he hopped off the ute. The plaintiff last attended a soccer match a few years ago. He recently went to an AFL game with Victoria where he sat and watched the match.
79 In cross-examination the plaintiff confirmed he is now able to dress himself without difficulty.
80 The plaintiff agreed that he was active on My Space and Facebook and that since the incident he had continued to socialise and interact with a wide range of friends. He enjoyed playing computer games. He agreed he was more than computer literate and explained that he had a thumb injury from using the computer a lot.
81 The plaintiff has played an electric and acoustic guitar since his teenage days. He has not played in a band.
82 In re-examination, the plaintiff agreed he enjoyed playing the guitar but he cannot play as much as he would like to because of his back pain. He can sit down and put the guitar on his leg but if he stands and wears a strap he still gets pain with the weight of the guitar.
83 The plaintiff‘s brother is a professional musician and the plaintiff’s best friend has a record label. The plaintiff would have had more opportunity with his own music but for his back injury.
84 In cross-examination, the plaintiff agreed that he and his friends had gone out quite regularly since the incident and that he had not stayed at home despite having some back pain and being unhappy. The plaintiff agreed he goes out clubbing, the last time being a few weeks ago when the plaintiff enjoyed himself.
85 In re-examination, the plaintiff said he does not go out as often as he used to because he feels lazy and he gets lazy from his medication and is not motivated. Because his back and legs hurt, sometimes he just does not want to do anything.
86 The plaintiff does not go places like he used to and he just wants to lie down. Sometimes he cannot be bothered going out when invited because having taken his tablets he just wants to around and play games.
Surveillance
87 In cross-examination, the plaintiff agreed that he had been made aware of reports of surveillance carried out as early as February 2007 and March 2008.
88 The plaintiff agreed that he had been observed from time to time and film taken. He was shown getting in and out of various cars, walking in a normal manner, swinging around, turning his head and holding papers.
89 The plaintiff agreed that at his present house he brings the wheelie bins in and out and sometimes picks up something out of the garden. He can move the hard rubbish and disposable rubbish bins. He goes to the shops and does the shopping. He is able to bend and pick out items from the shelves without any observed restriction but he gets pain when he does so.
90 The plaintiff agreed he drove his car without any restriction.
91 The plaintiff agreed he was shown in a series of still photographs taken in August 2011 where he was shown at the letterbox bending, and moving wheelie bins.
92 The plaintiff explained that he had restrictions and felt pain when doing things around the house. He is still able to wash the dishes and put the washing on the line, carry shopping bags, get in and out of the car and do all those sorts of things. He can bend forward from the waist and look into the letterbox and stand upright. He could stand for an hour or longer.
93 Having been shown the video taken on 30 September 2011, the plaintiff agreed he was shown attending Taylor’s Lakes Shopping Centre post office carrying a number of parcels which he identified as computer hard drives which he was selling having bought them on eBay.
94 The plaintiff agreed that in the 5 minutes and 27 seconds of video taken on that date, he was walking normally, moving around his vehicle, getting petrol and attending the post office.
95 The plaintiff agreed that in 2010, from time to time he had gone to the supermarket. When doing so he would have driven there. He would have walked normally, bent and leant down to pick up items off shelves, doing what a person would normally do at the supermarket.
Lay Evidence
96 The plaintiff’s former partner, Victoria O’Grady, swore an affidavit on 6 May 2011.
97 At that stage she had known the plaintiff for three years and had been living with him since July 2010.
98 Ms O’Grady noticed the plaintiff was often in pain due to his back injury. He became moody and he got depressed, frustrated and angry because of his back pain. He was not fully functioning without medication. She saw him take Panadeine Forte every day.
99 The plaintiff no longer enjoyed going out with his mates as he did prior to his injury as his back pain prevented him from enjoying himself as much as he used to.
Claim Documentation
100 The plaintiff lodged a claim on 20 November 2006 setting out he had suffered injury to his lower back, chest and shoulders taking a commercial fridge down stairs on a trolley on 14 November 2006.
101 The plaintiff was working forty three and a half hours a week earning $15 per hour. He also worked five hours overtime per week.
102 The employer’s claim report dated 1 December 2006 set out the plaintiff’s pre injury average weekly earnings working thirty five hours a week at $15 per hour and four hours of overtime at $22.50. It was noted on that claim report that the injury was not reported.
103 By letter dated 5 December 2006, Allianz advised that the plaintiff’s claim had been accepted in relation to the injury of 14 November 2006.
104 The plaintiff lodged a claim for impairment benefits on 7 February 2008 in relation to his back and psychiatric impairment. By letter dated 14 May 2008, QBE advised the plaintiff that liability was accepted for his lower back and psychiatric condition in relation to his claim pursuant to s.98C of the Act.
The Plaintiff’s Medical Evidence
Treating Doctors
105 Dr Asthana first reported in March 2007 when he noted the plaintiff had been working for the first defendant for the last three months.
106 On the said date, whilst working at Flemington, the plaintiff was guiding a fridge on a trolley. The plaintiff told Dr Asthana that he felt he was unable to control the weight of the trolley whilst it was being manipulated and he, along with the trolley, fell down the stairs with the fridge and trolley landing on him.
107 On 15 November 2006, the plaintiff complained to Dr Asthana of cervical and lumbar pain and pain in both shoulders. All areas were tender and movements were painful and restricted.
108 Dr Asthana noted a plain x-ray of the cervical and lumbar spine and also a CT scan of the lumbar spine.
109 The plaintiff was taken off work and prescribed anti inflammatory tablets and analgesics. His progress was reviewed over the following two weeks. His response to treatment at that stage was slow.
110 On 20 February 2007, the plaintiff had pain in the lumbar spine which was persistent and worse on slight exertion or standing for too long. It was clear he was quite tender in the lumbar spine region and his movements were very painful and restricted. He was also slightly tender in the neck with painful and restricted movements.
111 At that stage, Dr Asthana diagnosed a soft tissue injury of the cervical spine and both shoulders and also soft tissue injury of the lumbar spine with moderate to severe L4-5 lumbar canal stenosis and a prolapse at L4/5 as well as moderate to severe L2-3 and L3-4 lumbar canal stenosis secondary to central prolapse at both levels.
112 Dr Asthana noted the plaintiff had been treated with analgesics and anti inflammatory medication, rest and physiotherapy initially. The plaintiff’s response to treatment had been slow partly because physiotherapy had not been started. It was noted that the plaintiff’s prognosis was not clear at that stage and he was to see a specialist orthopaedic surgeon.
113 In his later report of 17 March 2008, Dr Asthana advised the plaintiff’s claim had not been accepted by WorkCare. Therefore, the treatment given to him which consisted of pain management with analgesics and home exercises, had been very limited. Dr Asthana noted once the plaintiff’s claim was accepted he could be started on vigorous conservative treatment and specialist opinion obtained.
114 The last time Dr Asthana saw the plaintiff regarding his injury was on 28 March 2008. The plaintiff told him his case was settled with WorkCare. The plaintiff then attended Dr Asthana monthly in relation to his disability benefits.
115 Dr Asthana reported, as the physical condition of the plaintiff’s back was still persisting, he was treated for pain management and physiotherapy through a care plan followed by home exercises.
116 In July 2009, the plaintiff was referred to a psychologist through a mental health plan as he was developing chronic depression and he was put on Effexor (75milligrams daily).
117 The plaintiff continued to complain of persistent pain in the lower spine which got worse on exertion. Clinically he was tender with slightly painful movements.
118 The last time Dr Asthana saw the plaintiff for his injury was on 17 July 2009. The plaintiff next saw him on 17 February 2010 when he told Dr Asthana that he was trying to lift plastic tubs from a ute about three weeks ago when he developed severe pain in the lumbar spine region radiating to both thighs. The plaintiff was treated in hospital but Dr Asthana did not have any feedback from the hospital.
119 On examination on 17 February 2010, there was spasm, tenderness, painful and restricted movements.
120 Dr Asthana noted he had not seen the plaintiff for about five months prior to the second incident. Dr Asthana noted it was very difficult for him to say whether the plaintiff had completely recovered from his original injury and that this was the second injury, or that there was an aggravation of the plaintiff’s pre-existing injury. Dr Asthana suggested specialist opinion be obtained in that regard.
121 Dr Yong at the Plaza Medical Centre has been treating the plaintiff in relation to his low back condition since 4 November 2010 when he took over the plaintiff’s care from Dr Asthana.
122 Dr Yong noted the plaintiff’s involvement in the incident and his subsequent treatment.
123 Dr Yong reported that the plaintiff had been taking four to six tablets of Panadeine Forte to control his back pain and he also underwent physiotherapy.
124 The plaintiff had been seen by two orthopaedic surgeons and a neurosurgeon, Mr D’Urso, who suggested surgical decompression if the plaintiff’s symptoms deteriorated.
125 Dr Yong noted the plaintiff had nonetheless declined surgery due to his fear of risk of permanent damage to the nerve roots or spinal cord during operation which could render him paralysed and unable to work for the rest of his life.
126 The plaintiff described the pain he had experienced since the incident as a constant dull ache in his lower lumbar spine radiating down both thighs with episodes of acute severe exacerbations, usually triggered by sudden movements. He also had a severe electric shock sensation in his lower spine which caused his back to stiffen up and he was unable to move and work for days.
127 Dr Yong noted that the pain was once so severe that the plaintiff was taken by ambulance to Sunshine Hospital Emergency Department, admitted overnight and treated with strong opiates before being discharged home.
128 Dr Yong reported that due to his regular use of Panadeine Forte the plaintiff developed drowsiness, constant lethargy, impaired concentration and tolerance to the medication.
129 Dr Yong noted that since the injury the plaintiff had tried to avoid lifting or bending movements and he was constantly aware of his bodily movement to avoid triggering an acute attack of pain. Due to his inability to perform sports or physical work he used to do prior to injury, the plaintiff suffered from a loss in confidence and self esteem. He was unable to do sports and hang out with his friends for long and he spent more time isolating himself at home.
130 In Dr Yong’s view, the plaintiff was restricted because of low mental and physical endurance as a result of the incident.
131 Dr Yong noted the plaintiff lacked motivation at work. The plaintiff expressed fear and pessimism about his future and whether he would be able to work full time ever again. He also suffered from insomnia due to frequent night pain.
132 Dr Yong noted the plaintiff was diagnosed with depression by Dr Asthana and commenced on anti depressants. However, due to the combined effects of Panadeine Forte, the plaintiff experienced drowsiness at work and had to stop taking the anti depressant.
133 In Dr Yong’s view, the description of the plaintiff’s pain was consistent with the diagnosis of L5-S1 nerve root irritation which had only been partially relieved by different modalities of treatment.
134 Dr Yong thought, as a result of the plaintiff’s lack of physical activities and his fear of his future, especially his prospect of being able to work full time, the plaintiff had become socially isolated and was depressed.
135 Dr Yong noted that although the plaintiff’s pain remained stable, he continued to use Panadeine Forte regularly and avoid any sudden movement that may precipitate an attack of severe pain.
136 Dr Yong thought, however, that this situation restricted the plaintiff’s career options. Nevertheless, he did not believe the plaintiff would become completely pain free and again enjoy his pre injury level of physical function as a result of the back condition.
137 Mr Ian Jones, orthopaedic surgeon, saw the plaintiff on 10 May 2007 at the request of Dr Asthana with complaints of lumbar back pain which he attributed to the incident.
138 The plaintiff reported that the day after the incident his back was stiff and sore and he was experiencing some electric shock sensations.
139 Mr Jones noted the plaintiff’s treatment thereafter and the fact that the plaintiff was referred to a specialist, Mr Singha, who assessed him as being fit to work. The plaintiff had had physiotherapy and had been prescribed tablets for symptoms.
140 The plaintiff described pain which he indicated to be at the centre of his lower back and he reported symptoms of an electric shock or intense pain with symptoms of a pulsating pain in the lower back. There was some slight throbbing discomfort in the front of both thighs.
141 The plaintiff could not estimate his walking capacity or sitting or standing ability. He considered that he would be able to undertake at least clerical work if the job allowed him to get up regularly.
142 The plaintiff was then having physiotherapy twice weekly and taking painkillers (two in the morning and at night) and he took his father’s Panadeine Forte.
143 On examination, the site of the plaintiff’s back pain was indicated to be at the L4 level. On formal testing the plaintiff demonstrated a range of flexion to slightly less than half of normal with a slight restriction of extension.
144 Mr Jones noted in contrast the plaintiff appeared to be able to sit reasonably well and his mobility appeared to be only slightly reduced when climbing on and off the examination couch.
145 Straight leg raising was to beyond seventy degrees and aggravated the plaintiff’s back pain. Reflexes at knee and ankle joint level were present and equal. Sensory testing to pin prick suggested some slight but inconclusive paresthesia in the skin over the lateral aspect of the right calf.
146 Mr Jones noted the CT of January 2007 and the MRI scan of February 2007. On the latter, there was the appearance of a small, right sided disc L5-S1 disc protrusion which did not appear to involve the adjacent nerve root.
147 Mr Jones advised the plaintiff appeared to have suffered a lower lumbar disc disruption as a result of the incident.
148 In the absence of any previous history, Mr Jones believed the incident could have been a cause or at least an aggravating factor to some mild degenerative disc disease the plaintiff may have suffered in the past and been the cause of what appeared to be an L5-S1 disc prolapse.
149 Mr Jones thought the plaintiff was not capable of returning to his former labouring job. He believed the plaintiff would be fit for suitable duties including light physical work not requiring bending or lifting. He considered the plaintiff would also be fit for clerical work.
150 Mr Jones thought further treatment should be conservative in the form of analgesics, anti inflammatory agents and a short course of hydrotherapy. In his view, should the plaintiff’s symptoms not improve, consideration for an epidural steroid could be given.
151 The plaintiff presented at Sunshine Hospital Emergency Department on 31 January 2010.
152 It was noted the plaintiff presented with lower back pain following jumping from a very small height on Friday 29 January 2010. He was observed in the Emergency Department and discharged home with advice and for the general practitioner to follow up with further imaging if the pain did not settle.
153 The plaintiff returned to the Emergency Department on 31 January 2010 with further pain and decreased mobility. It was noted he had not had any symptoms of nerve root compression or cauda equina syndrome.
154 Upon examination, the plaintiff’s power and tone was completely normal. He was able to mobilise in the Emergency Department and he did not have midline tenderness of his lumbosacral spine.
155 The registrar gave the plaintiff general advice in relation to back pain and regarding regular analgesia. He asked Dr Asthana if he would follow up and consider further imaging if the plaintiff’s pain persisted.
Investigations
156 Dr Freilich organised an MRI scan the plaintiff’s lumbosacral spine on 26 February 2007.
157 The reporter concluded there were minimal broad based disc bulges throughout the mid to lower lumbar sacral region at several levels associated with mild facet joint ligamentum flavum hypertrophy causing a more central canal narrowing but no significant central canal neural foraminal stenosis. There was a small protrusion at L5-S1 with annular fissure extending into the central canal but causing no significant nerve root compromise.
158 A CT scan of the lumbar spine was organised by Dr Asthana on 15 January 2007.
159 It was reported there was moderately severe L4-5 lumbar canal stenosis and central L5-S1 prolapse as well as possible bilateral L5 nerve root impingement. An MRI scan of the lumbar spine was recommended.
160 It was also reported there was moderately severe L2-3 and L3-4 canal stenosis secondary to a central disc prolapse at both levels. There was also mild L5-S1 lumbar canal stenosis secondary to a central L5-S1 disc prolapse.
161 Dr Asthana organised another CT scan of the plaintiff’s lumbosacral spine on 17 February 2010.
162 It was reported there was mild central canal stenosis seen at L2-3, L3-4, L4-5 and L5-S1 levels. There was associated posterior impingement of the traversing right S1 nerve root noted particularly. It was reported the degree of nerve root impingement could be further assessed with MRI examination of the lumbar spine.
Medico-Legal Evidence
163 Mr D’Urso, neurosurgeon, examined the plaintiff at the request of his solicitors in early 2011.
164 The plaintiff told Mr D’Urso of the incident and time off work thereafter. The plaintiff reported chronic back pain which he rated at seven out of ten, and bilateral thigh pain which he rated at four out of ten. He denied any paresthesia or weakness in his legs. The plaintiff told Mr D’Urso he could sit, stand and walk for prolonged periods and he slept at night.
165 The plaintiff was then working twenty eight hours a week as a gaming attendant. He did some light duties at home and went shopping. He did not cook or do gardening. He was no longer able to workout at the gym and go surfing or play tennis, as he did prior to the injury.
166 The plaintiff was then taking up to six Panadeine Forte per day.
167 On examination, the plaintiff’s reflexes were symmetrical and preserved. Straight leg raising bilaterally was to 60 degrees which caused some back pain. The plaintiff could flex his spine so that he came to 30 centimetres from touching his toes and he extended to 20 degrees. His spine was morphologically normal.
168 Mr D’Urso noted the 2006 x-ray, the CT of January 2007 and the MRI of February 2010, the latter which demonstrated a degenerative L5-S1 disc with central prolapse and annular tear.
169 Mr D’Urso thought the plaintiff appeared to have sustained an injury to his lumbosacral disc as a result of the incident and he was subsequently symptomatic from discogenic back pain. He thought the plaintiff’s condition had currently stabilised.
170 Mr D’Urso recommended the plaintiff participate in a home maintenance program of core stability exercises and hydrotherapy exercises. In his view, the use of anti inflammatory and simple analgesic medication may be required for the plaintiff for the indefinite future.
171 Mr D’Urso advised that he would place permanent restriction on the plaintiff’s ability to perform repetitive bending, twisting or lifting activities. Further, the plaintiff should not be required to lift beyond ten kilograms and should avoid sitting and standing postures in excess of an hour. He should have the ability to ambulate freely in the workplace.
172 In Mr D’Urso’s view, the plaintiff could perform light pushing and pulling activities and use his arms above his shoulders. Mr D’Urso would place permanent restrictions in this regard.
173 Mr D’Urso did not believe the plaintiff had a capacity for his pre injury employment and thought he had a permanent disability of a partial nature which would prevent him from performing unrestricted physical or manual activity beyond restrictions mentioned in his report.
174 Mr D’Urso thought the injury appeared to have a moderate effect on the plaintiff’s social, domestic and recreational activities with limitation on recreational sport with the plaintiff not being able to perform hard court sporting activity or running.
175 In Mr D’Urso’s view, the plaintiff may have limited capacity to perform bending, twisting and lifting activities such as required in domestic cleaning and gardening activity on a limited basis.
176 Mr D’Urso noted the plaintiff appeared to have suffered moderate pain, distress and anxiety as a result of the condition. That situation had been over a protracted period and appeared to be continuing.
177 Whilst the plaintiff’s symptoms appeared to have stabilised, Mr D’Urso thought there may have been a degree of degenerative progression of the lumbosacral disc and that was somewhat difficult to determine.
178 As long as the plaintiff could manage his symptoms medically, Mr D’Urso thought surgery was unlikely to be required. If, however, the symptoms were to worsen or become increasingly incapacitating, surgical lumbosacral fusion procedure may be indicated. Mr D’Urso considered such surgery would have a reasonable chance of improving the plaintiff’s quality of life and improving symptoms should they become exceptionally disabling.
179 Mr Michael Fogarty, orthopaedic surgeon, examined the plaintiff in May 2011.
180 The plaintiff told him he still had pain in his back and left leg, felt mostly in the front of the thigh but never below the knee. He also had some pain into his right thigh and tingling in both legs.
181 The plaintiff told Mr Fogarty he started working as a gaming attendant in about August 2010. He could manage this work which was carried out mostly behind the bar where there were gaming machines. The plaintiff worked as a casual on shift averaging twenty eight hours a week, working up to thirty two hours. Sometimes he carried bags of coins but otherwise he carried out hospitality work.
182 The plaintiff told Mr Fogarty that prior to the incident he used to play soccer at a local club. He also used to surf and skateboard a lot, but he had not done a lot of these activities since the incident. The plaintiff told Mr Fogarty he spent a lot of time sitting at his computer.
183 On examination, there was no loss of the normal lumbar lordosis. There was forward flexion to 90 degrees and extension, lateral flexion and rotation to 30 degrees. There was no neurological deficit in either lower limb. All reflexes were present, brisk and equal.
184 Mr Fogarty noted the x-rays of November 2006, the CT scan of January 2007, an MRI scan of 26 February 2007 and a CT scan of 16 February 2010.
185 Mr Fogarty reported that he saw all images and agreed with the reports given. He also noted that there was disc narrowing and desiccation at the L5-S1 level in the February 2007 MRI.
186 Mr Fogarty diagnosed lumbosacral disc injury with annular fissure type tear and posterolateral bulge at the lumbosacral disc. He thought there was also evidence of posterior bulges at the L2-3, L3-4 and L4-5 discs causing relative narrowing of the lumbar spinal canal.
187 He considered the plaintiff’s condition had stabilised.
188 As a consequence of the physical injury and impairment of his back, excluding any psychological condition, Mr Fogarty thought the plaintiff was likely to be restricted in relation to employment or activities involving bending, lifting, twisting or stooping, pushing, pulling or lifting, repetitive pushing, pulling or lifting, repetitive prolonged use of the back, kneeling, squatting or crouching for a protracted period, prolonged sitting, walking or standing and using steps or ladders.
189 These restrictions would mean the plaintiff would be unable to do heavier manual work or sustained repetitive work and Mr Fogarty considered the incapacity would continue for the foreseeable future.
190 As a consequence of these problems, Mr Fogarty thought the plaintiff was likely to be restricted in relation to social, domestic and recreational activities, including heavy housework or ground maintenance work and he was unable to enjoy sporting activities he enjoyed prior to the incident. Mr Fogarty thought such incapacity would continue for the foreseeable future.
191 Mr Fogarty noted that the plaintiff is now in his mid twenties and was unable to do significant manual work and did not have the training for clerical/administrative work. He thought the prognosis was that the plaintiff was likely to continue having low back problems for the foreseeable future as he had a condition which would deteriorate slowly. He did not think the plaintiff was at an increased risk of developing arthritis other than the increasing degenerative disc disease in his lower back.
192 Mr Fogarty did not consider the plaintiff presently required, or was likely to require any surgery in the future in the form of an operation but he still required some medication for pain relief.
The Defendants’ Medical Evidence
193 The plaintiff attended Sunshine Hospital Emergency Department on 31 January 2010 complaining of low back pain.
194 In terms of background, it was noted the plaintiff had –
“Intermittent low back pain over the past four years, takes Panadeine Forte, MRI scan in 2007 – small disc protrusion L5-S1 level. No nerve compromise.”
195 It was noted that the plaintiff was earlier seen in Emergency on 29 January 2010 following exacerbation of pain following jumping from a small height. He was observed and discharged with advice once pain improved and mobility increased.
196 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on two occasions, initially in July 2010 and more recently in July 2011.
197 On initial examination, the plaintiff told Mr Shannon of the incident and his subsequent medical treatment.
198 Mr Shannon noted the plaintiff became frustrated being at home and he sought an apprenticeship as a plumber with his uncle which he started on 27 January 2010.
199 On the second day of work, the plaintiff was moving a box of fittings off the back of a ute and as he jumped off his legs gave way and his back locked up and he was unable to move. He was taken to a physiotherapist whose treatment did not help and he was therefore taken to Sunshine Hospital by ambulance. He was sent home from the hospital on crutches.
200 Mr Shannon noted the plaintiff then started to develop numbness and swelling of his right foot. The symptoms resolved to the point where two weeks prior to the examination the plaintiff obtained employment as a gaming attendant on a casual basis.
201 Mr Shannon noted the plaintiff coped with work reasonably well, although he needed to take four to six Panadeine a day. He had ongoing low back pain and a feeling like electricity in his back but he did not have much leg pain.
202 On examination, there was mild restriction of thoracolumbar flexion and extension but other movements were through a normal range although there was some mild spasm on lateral flexion. Straight leg raising was to forty degrees on the left and to sixty degrees on the right.
203 Mr Shannon commented that the CT scan of January 2007 was over reported. He noted the significant finding was that there was a moderate central disc bulge at L5-S1 but only minor diffuse bulging at L4-5 and he did not think there was any significant stenosis.
204 Mr Shannon noted an MRI scan in February 2007 showed clear evidence of disc degeneration at L5-S1 with an annular tear and a central bulge. He noted in the upper lumbar region there were multiple Schmorl’s nodes and minor disc bulging but no focal prolapse.
205 The February 2010 CT scan carried out after the January 2010 incident showed a central to right sided disc protrusion at L5-S1 with minimal diffuse bulging at L3-4 and L4-5.
206 Mr Shannon thought, as a result of the incident, the plaintiff had sustained an aggravation of probably pre existing lumbosacral disc degeneration in the form of a small central to right sided disc prolapse with an annular tear. He noted there had not really been any clear history of sciatica or radiculopathy nor did the scans significant nerve root compression, although the plaintiff still had a degenerate bulging disc at the lumbosacral level.
207 Mr Shannon noted the plaintiff also had mild stenosis on the mid to upper lumbar regions which was essentially congenital and unrelated to the injury. He then thought the plaintiff had made an incomplete recovery and that his back was vulnerable to further injury.
208 At that stage, Mr Shannon thought the plaintiff was best advised to be employed in work which did not involve prolonged or repetitive bending or heavy lifting. He noted the plaintiff’s previous experience in the gaming industry may be the most suitable long term solution to his back problem.
209 Mr Shannon concluded the plaintiff had sustained a lumbosacral disc protrusion and the prognosis at that stage was for ongoing discomfort and stiffness in the back and susceptibility to further injury.
210 Mr Shannon thought the original injury in the incident was the significant one.
211 On re-examination in July 2011, Mr Shannon noted the plaintiff continued working as a gaming assistant and that the most physical activity was collecting coins and that tended to cause the plaintiff’s back to ache.
212 Mr Shannon noted the plaintiff was looking for other work and he would prefer to be in a desk type job. The plaintiff mentioned that he was quite good with computers and the internet.
213 The plaintiff advised Mr Shannon he continued to take four to six Panadeine Forte a day, particularly when working.
214 On physical examination, there was moderate restriction of thoracolumbar movement without significant spasm and straight leg raising was to 70 degrees bilaterally. There was no neurological abnormality and Mr Shannon noted the plaintiff had excellent musculature to the lower limbs and brisk reflexes.
215 Mr Shannon concluded the essential injury sustained was that to the lumbosacral disc with a small disc protrusion with an annular tear. The plaintiff did not have evidence of radiculopathy so essentially Mr Shannon thought his problem was one of mechanical back pain which would permanently limit him in the performance of work involving prolonged or repetitive bending or heavy lifting.
216 Mr Shannon concluded the plaintiff’s condition had been caused or aggravated and accelerated by the original injury and aggravated by the second incident. He believed employment with the first defendant had been a significant contributing factor to the plaintiff’s back condition.
217 Mr Shannon noted the plaintiff required medication to remain at work and that permanent impairment had been caused by the injury.
218 In Mr Shannon’s view, the incident injury had affected the plaintiff’s employment capacity, in that he did not have a capacity for pre-injury employment duties and should not resume such employment. Mr Shannon thought the plaintiff should avoid work involving prolonged or repetitive bending, twisting and heavy lifting and he considered that the plaintiff was permanently incapacitated for labouring work.
Video Surveillance
219 The defendants relied on a set of still photographs of video surveillance of the plaintiff taken in August 2011 where he was shown at his letterbox, driving his car and standing performing his work duties.
220 There was also the DVD of video surveillance of 5 minutes and 27 seconds taken on 30 September 2011.
Overview
221 It is not disputed that the plaintiff suffered an injury to his back in the incident.
222 Whilst the diagnosis of the plaintiff’s condition is expressed in slightly different terms, the consensus of medical opinion is that the plaintiff suffered injury to the lumbo sacral disc with a disc protrusion/prolapse and annular tear.
223 There is no evidence of the plaintiff experiencing any problems with his back prior to the incident.
224 However, counsel for the defendants submitted that the second incident was a subsequent intervening event of its own causation.
225 Further, it was submitted that to take on this plumbing apprenticeship, the plaintiff must have largely recovered from any back problem relating to the incident. Reliance was placed on the lack of attendances on Dr Asthana in the five months before the second incident and the history to the Sunshine Hospital of intermittent pain for the previous four years.
226 Contrary to this submission, Mr Shannon upon whom the defendants relied and who was aware of the second incident, noted the continuing role of the first incident in the plaintiff’s current presentation. Further, he was unequivocal that the plaintiff’s condition had been caused or at least significantly aggravated and accelerated by the incident injury.
227 The plaintiff’s general practitioner Dr Yong who was aware of the second injury, reported earlier this year that the plaintiff had been suffering from ongoing pain, mental and physical disabilities since the incident. He deferred to specialist opinion as to whether the second incident was a new injury or an aggravation of the injury from the incident.
228 Taking Mr Shannon’s opinion into account, together with the plaintiff’s evidence, confirmed by Dr Yong, as to ongoing back pain since the incident, I accept that the incident continues to contribute materially to the plaintiff’s present condition.
Consequences
229 The weight to be attached to the plaintiff’s account of the pain experience will of course depend on an assessment of the plaintiff’s credibility - see President Maxwell in Haden Engineering P/L v McKinnon (2010) VSCA 69 at par 12.
230 I found the plaintiff to be a credible, unsophisticated young man
231 The short surveillance film, the photographs and also the plaintiff’s admissions as to his level of activity filmed on other occasions, did not reveal any level of activity inconsistent with his stated level of pain and restriction.
232 Further, there is no medical opinion that the plaintiff was feigning or exaggerating on examination or that there were inconsistencies in his presentation on examination, save for a brief comment in this regard by Mr Jones four years ago.
233 I accept that since the incident, the plaintiff has suffered back and leg pain which has varied in intensity as confirmed by his general practitioners. His condition is such that he has to generally take care with movements and be careful not to trigger an attack of acute pain as Dr Yong described.
234 The plaintiff has required Panadeine Forte for pain relief, in a relatively large dosage, on an ongoing basis on the advice of his general practitioner. This medication has side effects for the plaintiff including drowsiness, constant lethargy and impaired concentration as reported by Dr Yong.
235 Further Mr Shannon considered the plaintiff required ongoing medication to help him remain at work.
236 The plaintiff is still a very young man, now aged twenty six.
237 As Ashley JA and Beach JA said at paragraph 43 of Stijepic v One Force Group Aust Pty Ltd & Anor (2009) VSCA 181:
“When judging the pain and suffering consequences for the appellant by way of comparison with other cases, we consider it relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for forty years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”
238 As a result of his back pain, the plaintiff has problems sleeping as confirmed by Dr Yong. Standing for prolonged periods, such as at work, causes the plaintiff increased back pain.
239 In my view, the most significant consequence of the plaintiff’s back condition is its effect on his work capacity.
240 The plaintiff has a limited education. His work pre incident was often casual or part time in a range of fields and at the time of the incident he was engaged in heavy manual work.
241 I accept that the plaintiff’s work history is not one solely of hard manual work and that at times he has worked in the gaming industry and other less physical jobs. However whilst he is obviously computer literate and has some musical talent, he had not sought employment in those fields prior to the incident.
242 The plaintiff did not work for four years after the incident. During that time, he was in pain and taking medication. He was in receipt of weekly payments until January 2008 and his next job was working for his uncle in early 2010. The plaintiff could not cope with that job, suffering an aggravation of his back condition on the second day when he simply jumped from the back of a work ute.
243 The plaintiff’s next job was as a gaming attendant which he commenced in August 2010. He continues to work in that capacity up to thirty hours per week at the present time.
244 I accept that the plaintiff has problems with his back in his current job. He has difficulty coping with this part time work which is not particularly physical. Lifting of the money bins is difficult but of more concern to the plaintiff is the pain experienced by him on prolonged standing.
245 The plaintiff’s problems at work are confirmed by his attendance on CRS of his own volition in an effort to obtain lighter work
246 The consensus of medical opinion is that the plaintiff is unfit for his pre injury work or labouring type work.
247 In 2007, Mr Jones thought the plaintiff was partially incapacitated for employment. He considered the plaintiff was not capable of returning to his former labouring job. He believed the plaintiff would be fit for suitable duties such as clerical work, and light physical work not requiring bending or lifting.
248 In 2011, Mr D’Urso reported that he would place permanent restriction on the plaintiff’s ability to perform repetitive bending, twisting or lifting activities. Further, he thought the plaintiff should not be required to lift beyond ten kilograms and should avoid sitting and standing postures in excess of an hour and that he should have the ability to ambulate freely in the workplace.
249 Mr D’Urso considered the plaintiff could perform light pushing and pulling activities and use his arms above his shoulders. He did not believe the plaintiff had a capacity for his pre injury employment and thought he had a permanent disability of a partial nature which would prevent him from performing unrestricted physical or manual activity beyond these restrictions.
250 In terms of his physical injury and impairment of his back, Mr Fogarty thought the plaintiff was likely to be restricted in relation to employment or activities involving bending, lifting, twisting or stooping, pushing, pulling or lifting, repetitive pushing, pulling or lifting, repetitive prolonged use of the back, kneeling, squatting or crouching for a protracted period, prolonged sitting, walking or standing and using steps or ladders. These restrictions would mean the plaintiff would be unable to do heavier manual work or sustained repetitive work and Mr Fogarty considered the plaintiff’s incapacity would continue for the foreseeable future.
251 Mr Shannon considered the plaintiff did not have a capacity for pre- employment and he should not resume such duties. Mr Shannon thought the plaintiff should avoid work involving prolonged or repetitive bending, twisting and heavy lifting and that he was permanently incapacitated for labouring work, noting the plaintiff needed medication to help him remain at work.
252 Taking into account all the evidence, I am satisfied that the employment consequences of the plaintiff’s back impairment are serious. Whilst there is no economic loss claim, the plaintiff’s work options are restricted as a result of his back condition and his work future is uncertain.
253 The plaintiff is concerned as to his ability to ever work on a full time basis. He has expressed fear and pessimism to Dr Yong in this regard.
254 To a lesser extent the plaintiff’s enjoyment of social and sporting activities is also restricted by his back condition.
255 I accept that the plaintiff no longer pursues his interest in gym work and body building which he enjoyed before the incident. He is no longer able to run as he did prior to the incident.
256 The plaintiff has really had no active interest in soccer since the age of fourteen, thus, I do not accept his back condition has any consequences of note in this regard.
257 I accept that whilst the plaintiff still socialises with friends and family, as a result of his back pain at times he lacks motivation to go out as reported to Dr Yong.
258 The plaintiff is able to carry out domestic activities such as housework and shopping but he does so with pain.
259 As the plaintiff’s symptoms have persisted for some years, I am satisfied that his impairment is permanent.
260 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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