Mickovski v George Weston Foods Limited

[2011] VCC 1186

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-10-03518

ZIVCO MICKOVSKI	Plaintiff
v
GEORGE WESTON FOODS LIMITED	Defendant

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2011
DATE OF JUDGMENT:	29 July 2011
CASE MAY BE CITED AS:	Mickovski v George Weston Foods Limited
MEDIUM NEUTRAL CITATION:	[2011] VCC 1186

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – pain and suffering damages only.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr V A Morfuni SC with	Tasiopoulos Lambros & Co
Mr J Sala
For the Defendant	Mr I S Gourlay	Hall & Wilcox
HIS HONOUR:

Introduction

1 Before the Court is an application brought by Originating Motion filed on 10 August 2010 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant. The plaintiff alleged the injury to his lower back occurred on or about 5 September 2005.

2          The plaintiff seeks leave to bring such proceedings for pain and suffering only.

3          Mr V A Morfuni SC and Mr J Sala of counsel appeared for the plaintiff and Mr I Gourlay of counsel appeared for the defendant.

4          At the commencement of the application the body function which the plaintiff says has been lost or impaired is the lower back.

5          The following evidence was adduced during the hearing:

•  The plaintiff gave evidence and was cross-examined;

•  The plaintiff tendered the following documents:

ƒ Exhibit A, the Plaintiff’s Court Book (“PCB”) pages 1-82;

• The defendants tendered the following documents:

ƒ Exhibit 1, film taken of the plaintiff on DVD dated 1 September

2010;

ƒ	Exhibit 2, film taken of the plaintiff on DVD dated 13 January 2011 and 5 April 2011;
ƒ	Exhibit 3, film taken of the plaintiff on DVD dated 11 June 2011;

ƒ Exhibit 4, the Defendants’ Court Book (“DCB”) pages 1-11 and

pages 16-89;

ƒ Exhibit 5, clinical notes of Dr Ilic dated 29 January 2009 to 28 June
2010.

6          The decision that I have to consider is whether or not the plaintiff has satisfied the serious injury test for permanent serious impairment or loss of a body function to his lower back.

7          At the commencement of the application, Mr Gourlay, on behalf of the defendant, stated that the issues for consideration were:

(a)	causation in respect of the back injury was not an issue;
(b)	the case was referred to as a “range case”;
(c)	whether the consequences of an injury rather than examining the injury itself meet the “very considerable” test, as required under legislation;
(d)	the credit of the plaintiff to the extent of him exaggerating his injury; and
(e)	whether the aggravation of the pre-existing asymptomatic degenerative lower back condition was sufficient to meet the “very considerable” test.

The Statutory Scheme

8 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of s.134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.

9          The relevant considerations which apply to such an application are as follows:

(a)	The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)	The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)	The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)	Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)	Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)	Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g)	In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.

[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11

[2]             Barwon Spinners, at paragraph 33

10        I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

The Plaintiff’s Background

11        The plaintiff was born in Macedonia on 28 June 1941 and is now aged seventy years. The plaintiff migrated to Australia in 1989. He is a married man and has two children. He presently lives with his wife in West Sunshine. His children are grown up. His daughter lives in Canada and his son lives in the United Kingdom.

12        The plaintiff’s initial work in Australia was at a furniture manufacturer for approximately six months. He then moved to Electra Fine Furniture where he worked for a period of ten years prior to working with the defendant.[3] In or about December 2000, the plaintiff commenced work with Don Smallgoods, which is a company owned and operated by the defendant. He continued in that employment until shortly before his sixty-fifth birthday. The plaintiff has not worked since January 2007.

[3]             Transcript 11, Lines 4-7

The Injury with the Defendant

13        The plaintiff sets out the circumstances in which he was injured in his affidavits dated 19 March 2010 and 13 May 2011, and in a further affidavit dated 13 May 2011.[4]

[4]             PCB 1-15

14        In the course of his employment with the defendant, the plaintiff was required to place meat in tubs which were put in position by a forklift. The tubs weighed approximately 120 kilograms. The tubs were, as part of the work process, put in place by a forklift. On or about 5 September 2005, the plaintiff, in the course of his employment, was performing his usual work. The tub was placed by the forklift driver in an incorrect position. The plaintiff attempted to move the 120-kilogram tub and in the process slipped and fell over backwards, hurting his back. He ceased work and went home.

15        On the following day, the plaintiff attended his general practitioner, Dr Tadros. The plaintiff had also been examined by the company doctor. He was certified unfit for work for approximately one month.

16        There was no contest from the defendant that the accident occurred on or about 5 September 2005 which resulted in the injury to the plaintiff’s back. The issue was whether or not the injury to the lower back was of sufficient consequence to the plaintiff to satisfy the statutory test for the plaintiff being granted leave to commence common law proceedings.

The Plaintiff’s Medical Treatment

17        The plaintiff saw Dr Tadros, general practitioner, on 6 September 2005 complaining of pain in his lower back. The plaintiff was given time off work by his general practitioner. On 4 October 2005, the plaintiff was certified to return to work on restricted duties for four hours per day.[5] The plaintiff’s evidence was that he thought he had a total of two months off work.[6] The plaintiff’s restrictions were to do with lifting, twisting and bending.

[5]             DCB 76

[6]             Transcript 15, Lines 9-11

18        It was not until 13 January 2006 that the plaintiff was certified fit to return to light duties for eight hours per day, five days per week.[7]

[7]             DCB 62

19        The plaintiff was treated conservatively by Dr Tadros. He was treated at Physiowest from 10 October 2005 until 6 January 2006. The physiotherapy treatment was ceased after the insurers for the defendant refused to pay for any further treatment because, on their medical advice, the physiotherapy treatment was not benefiting the plaintiff. The plaintiff was later given five further physiotherapy treatments, commencing on 21 September 2007.[8]

[8]             PCB 42

20        Dr Tadros had referred the plaintiff for x-ray on 6 September 2005.[9] The plaintiff was then referred for a CT scan on 15 September 2005.[10]

[9]             PCB 35

[10]           PCB 36

21        On or about 29 January 2009, the plaintiff then changed his general practitioner to Dr Ilic.[11] Dr Ilic continued with the previous conservative treatment of prescribing medication for the plaintiff. The plaintiff’s medication from the time of injury until the present time has been Voltaren and Panadol to maintain pain control. The plaintiff has also used Voltaren Gel or a similar product to assist by rubbing it on his lower back.

[11]           PCB 61

22        Dr Ilic referred the plaintiff to Mr Barrett, orthopaedic surgeon, on or about 3 March 2009.[12] Mr Barrett ordered an MRI scan which was performed on 20 March 2009.[13] Mr Barrett was of the opinion that surgery was not appropriate in the case of the plaintiff.

[12]           PCB 49

[13]           PCB 39

23        Dr Ilic has maintained a conservative treatment regime for the plaintiff by prescribing Voltaren and the substitute medication of Diclohexal. The Plaintiff takes Panadol as required and uses Voltaren Gel by rubbing it onto his lower back.

Causation

24        Mr Gourlay, counsel on behalf of the defendant, conceded that causation was not an issue in this case. However, the medical opinions in this case refer to the condition of the plaintiff’s back prior to the injury in September of 2005.

25        Mr Barrett, after examining the MRI scan performed on 20 March 2009, stated as follows:

“I must say that these degenerative changes have not significantly advanced since the earlier CT scans taken in September of 2005, immediately after his heavy fall, and repeated in 2008, meaning that these degenerative changes were well-established prior to his fall at work, and therefore these changes are not due to his fall, although clearly his symptoms dated from that time.”[14]

[14]           PCB 51

26        The issue in this case is that the plaintiff was able to work without difficulties up until 5 September 2005. The work he was performing was heavy and he worked full-time hours. It was after the work accident on 5 September 2005 that the previously asymptomatic degenerative condition of his spine became problematic for him. He has had significant symptoms of pain and restriction of movement since that time.

Aggravation

27        In these proceedings it is not disputed that the plaintiff suffered a compensable injury on or about 5 September 2005.

28        It seems to be generally accepted that the plaintiff suffers from an aggravation of the lumbar spine and that he has suffered an L5-S1 disc level injury which impacts on the L5 and S1 nerve roots. The plaintiff suffers from referred symptoms to his lower extremities.

29        In this case, where there is a pre-existing asymptomatic back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the 2005 incident is serious and permanent.

30        In Petkovski v Galletti,[15] the Full Court of the Victorian Supreme Court accepted the proposition that:

“…a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment; if that additional impairment was not ‘serious’, so it was said, then leave must be refused.”

[15] [1994] 1 VR 436

31        In both Angelatos v Museum of Victoria[16] and in R J Gilbertson Pty Ltd v R J Gilbertsons Pty Ltd v Skorsis,[17] the Court of Appeal accepted that the principles in Petkovski applied equally to serious injury applications under the Act.

[16] (1999) 3 VR 157, at pages 162-162 and at 168

[17] (2000) 12 VR 386, per Chernov JA at paragraph 40

32        In accordance with the principles in Grech v Orica Australia Pty Ltd & Anor,[18] provided the plaintiff establishes that the compensable injury in 2005 materially contributes to his impairment and its consequences, and will continue to do so permanently, the role of other injuries does not preclude a court concluding that there is the appropriate causal link between a compensable injury and the consequences relied upon.

[18] (2006) 14 VR 602

33        Whichever approach is followed, the plaintiff, to reach the threshold of serious injury, is required to establish the aggravation from the 2005 incident is permanent at the time of the hearing in its effects on the lower spine and the effects of the aggravation must be serious: see Barwon Spinners Pty Ltd v Podolak.[19]

[19] (2005) 14 VR 622

34        I accept that the plaintiff has the onus and burden of proving that the aggravation and subsequent consequences for him is borne by him. I accept that the aggravation to the lower back injury and the consequences for the plaintiff are sufficient to meet the statutory test for serious injury in this case.

35        It is obvious that when considering the extent of any pre-existing condition, the plaintiff’s evidence is particularly relevant. The Plaintiff has given evidence that he had worked in heavy duties without time off prior to his accident on 5 September 2005. The Plaintiff has stated that since the accident he has suffered constant pain and stiffness in his back. He states he still gets referred pain down his legs on occasions. He was unable to resume normal work duties after the injury. His sleep is disturbed due to the pain in his back. The Plaintiff has and continues to take medication to control his pain and symptoms. I accept the Plaintiff’s evidence on the effects of the 5 September 2005 injury to him. I find the change in the Plaintiff’s condition since the injury has resulted in very considerable consequences for him.

36        On the issue of aggravation, all of the medical practitioners accept that the plaintiff was a person without symptoms prior to the injury in 2005. The medical examiners agree that the plaintiff still suffers from symptoms and consequences of the injury in 2005. The real issue is the level and degree of those symptoms.

Credit of the Plaintiff

37        Mr Gourlay, on behalf of the defendant, submitted that the plaintiff’s credit was in issue in this case. The basis for the attack on the plaintiff’s credit was that Mr Simm, orthopaedic surgeon, who examined the plaintiff on behalf of the defendant, stated, under his heading of Physical Examination, that the plaintiff presented with a chronic adverse pain response.[20] Mr Simm also notes in his report dated 6 April 2011 that –

“Neurological examination of the lower limbs showed no objective clinical signs of radiculopathy. … There were some non-specific sensory changes in the left leg which were non-anatomical.”[21]

[20]           PCB 65

[21]           PCB 70

38        Whilst Mr Simm makes these observations in the body of his two reports, it is clear from his conclusions, which I shall return to in the medical opinion section of this judgment, that he accepts that the plaintiff has symptoms and consequences from this injury to his lower back.

39        The plaintiff was cross-examined and shown video film in respect of his movements. The surveillance film shows the plaintiff moving in very much the way he describes his limitations, both in his affidavits and in his evidence given in this application. I am satisfied that the plaintiff is accurately describing his symptoms and the resulting limitations to his movement and suffering from pain. I accept that the plaintiff has fully set out his ability to travel to see members of his family, both in 2006 and in 2008, which goes to his credit. He also gave evidence of his trips to the Macedonian Club which, despite the length of time he was under surveillance, was never captured on surveillance video.

40        I accept the evidence of the Plaintiff and find that he was not embellishing or exaggerating his complaints. I find the Plaintiff was doing the best he could to adjust to his circumstances after the accident of 5 September 2005.

The Medical Opinions

41        Mr Brian Barrett, orthopaedic surgeon, examined the plaintiff for the purposes of treatment initially and has subsequently prepared a number of reports. Mr Barrett notes in his report dated 24 November 2009 that the plaintiff was moving fairly slowly and stiffly.[22] He recorded that the movements of the plaintiff’s lumbar spine were fairly limited, and set out the limitation of those movements in the report. Mr Barrett gave the following opinion:

“This heavy fall, on 5th September 2005, clearly initiated painful changes, particularly in his lower lumbar spine, associated with some bilateral nerve root irritation or sciatic symptoms, symptoms which failed to satisfactorily settle, following prolonged conservative treatment.”[23]

[22]           PCB 54

[23]           PCB 56

42        Mr Barrett further stated:

“Following cessation of his work on 17 January 2007, no significant improvement of his symptoms or disability has occurred which is consistent with lumbar disc disruptions of this type having a limited capacity to heal or repair.”[24]

[24]           PCB 56

43        In his later report dated 4 May 2001, Mr Barrett stated as follows:

“It is clear that he had widespread degenerative changes present throughout his lumbar spine, revealed at radiological investigation shortly after his injury, that had clearly been present for a number of years, but equally clearly had been asymptomatic, allowing him to continue with his normal work at Don Smallgoods, until his heavy fall backwards onto the concrete surface on 5 September 2005, this fall initiating painful changes, particularly in his lower lumbar spine, and associated with some lower lumbar nerve root irritation, particularly down his left lower limb, symptoms from which have continued to the present and are likely to continue into the foreseeable future.”[25]

[25]           PCB 59

44        Mr Barrett goes on to state that no form of operative treatment is likely to be helpful and his ongoing symptoms will be minimised by keeping physical activities to a minimum.[26]

[26]           PCB 60

45        Mr Rodney Simm, orthopaedic surgeon, has examined the plaintiff on behalf of the defendant. I have previously referred to Mr Simm’s view that the plaintiff displayed features of a chronic adverse pain response. Mr Simm’s diagnosis is as follows:

“The diagnosis is multilevel longstanding advanced degenerative lumbar pathology. The most severe changes are at L5-S1 level where there is an associated disc osteophyte complex protruding to the left side posterolaterally impinging on the region of the descending nerve root. Although the pathology was pre-existing, it was asymptomatic prior to a fall at work on 5 September 2005. He fell heavily on his buttocks and back on that date and experienced severe back pain from which he has not recovered and there are some features of chronic adverse pain response which includes overt pain behaviour and marked fear avoidance behaviour with very little active thoracolumbar movement presented on formal examination.”[27]

[27]           PCB 66

46        Mr Simm then goes on to say that there has been a substantial impairment and loss of function of the back resulting from the compensable injury. The impairment in his view will persist for the foreseeable future.[28]

[28]           PCB 66

47        Mr Simm further examined the plaintiff and reported to the defendant on 6 April 2011. Mr Simm gave an opinion that the plaintiff now suffers from chronic back and lower leg symptoms. Mr Simm reports the Plaintiff is never pain free.[29] His opinion is otherwise the same as previously expressed. In Mr Simm’s opinion the further treatment of the plaintiff should be to continue self- regulation of activities and medication for chronic pain as prescribed by his general practitioner.[30]

[29]           PCB 68

[30]           PCB 71

48        Mr Peter Mangos, general surgeon, examined the plaintiff and reported to his solicitors on 7 April 2008. Mr Mangos observed that the plaintiff moved very stiffly and mobilised very slowly. In Mr Mangos’ opinion, the plaintiff had suffered injury to the lumbar spine with the severe trauma to the lumbar spine causing multiple disc damage of L4-5 and L5-S1 and L3-L4. He stated that the plaintiff was suffering, and would continue to suffer pain night and day and on a permanent basis.[31] Mr Mangos approved of the conservative treatment with medication of Voltaren and Tramal, together with massage and hydrotherapy as an appropriate course of treatment.[32]

[31]           PCB 46

[32]           PCB 47

49        Dr Ilic, general practitioner, has been the Plaintiff’s treating doctor since 29 January 2009. On 2 May 2011 Dr Ilic reports:

“… he has been complaining of intermittent low back pain which radiates down to buttocks, posterior thighs and calves. There are associated pins and needles in the left leg. His symptoms are aggravated by prolonged standing, sitting and bending. His sleep is occasionally disturbed by pain.”[33]

[33]           PCB 61

Dr Ilic confirms that the Plaintiff will not need any surgical treatment at this stage but will require ongoing pain management in association with life style modification and adjustment of his physical activities.[34]

[34]           PCB 62

50        I find that the expert medical opinions in this case are, in effect, in agreement. The medical opinions support the finding that the plaintiff, on 5 September 2005, injured himself and his pre-existing degenerative lower back became symptomatic. The symptoms of pain and stiffness with limitation of movement have persisted from that date until the present time. The expert medical opinion is that the only appropriate treatment for the plaintiff is that he continue with medication to manage his pain and that he restrict the amount of movement and activity that he involves himself in so as not to aggravate his underlying condition.

The Consequences

51        I have read the three affidavits sworn by the plaintiff in this matter. The affidavits dated 19 March 2010 and 13 May 2011 contain the same evidence. The latter affidavit is sworn through an interpreter. I have also read the further affidavit of the plaintiff dated 13 May 2011.

52        I have carefully considered the evidence of the plaintiff and also his oral evidence given and tested by Mr Gourlay during his cross-examination of the plaintiff. The plaintiff gave his evidence with the assistance of an interpreter.

53        The plaintiff gave his evidence in a straightforward manner and did not exaggerate or try to improve his case in any way. I accept his evidence and I accept him as a witness of truth. He gave clear evidence about the consequences of the injury to his lower back and what the effect of it has been on him.

54        I find that the consequences which I am satisfied the plaintiff has suffered as a result of the injury to his lower back are as follows:

•  The plaintiff was placed on light duties after the accident in September 2005. He remained on light duties until he accepted a redundancy package in January 2007. Whilst at the time of hearing the plaintiff had exceeded the age of seventy years, I accept that his explanation about applying for and taking the redundancy package offered in late 2006 and accepted by him in 2007 was because he could not perform the work required of him if he remained with his employer. The reason for his inability to work normal duties which involved lifting, twisting and bending was because of the injuries he suffered on 5 September 2005.

•  The plaintiff suffers from restriction of movement, in that he is careful and slow in the manner in which he moves about. This is described in his affidavit at PCB 5. The video surveillance confirms that the plaintiff is a person who walks in a careful manner and bends in a careful manner. Indeed, the video surveillance shows the plaintiff carrying one shopping bag whilst his wife carried the remainder of them on their way home, consistent with what he had set out in his affidavits. The plaintiff says in his evidence that from the time of his injury he would say that the pains were the same for a long period of time, he was restricted in bending, lifting and twisting.[35] The medical examiners, including Mr Mangos, Mr Simm and Mr Barrett all note the stiffness and limitation of movement of the plaintiff at the time of their examinations.

•  The plaintiff has persisting pain in his lower back requiring the constant use of painkilling medication and anti-inflammatory medication. I accept the Plaintiff’s description of his pain symptoms. The Plaintiff stated:

[35]           T 21, L24-26

“Well, that’s a fair statement because I always experience some pain, and it’s made worse with activity. And there are days when it’s much worse than other days. But I’ve never been without pain since the accident.”[36]

[36]           T 35, L21-25

The plaintiff takes Voltaren and Diclohexal.[37] The plaintiff’s evidence is that he takes one tablet of either Voltaren or Diclohexal three times a day. He has been taking that medication since it was first prescribed to him shortly after the accident. The plaintiff also takes Panadol as and when required to assist in his pain control. The plaintiff has constantly used this medication from the time of the accident until the present time and the medical advice is that he will continue to use such medication to control his pain for the rest of his life. This is a significant consequence for him.

[37]           T 22

• The plaintiff, as a result of the injury on 5 September 2005, has suffered pain in his lower back and referred pain down his leg. The plaintiff sets out in his affidavit that he obtains some relief from the medication but once the tablets wear off the pain returns and causes him considerable problem. In his evidence, the plaintiff stated, in an answer to a question in relation to low-back pain in 2006, that he suffered pain all the time, even today.[38] The plaintiff further stated in his evidence as follows:

[38]           T22, L26-30

“Because my back pain has been there all the time and that’s why I tend to see him (general practitioner) every month for the medication and to continue with the medication because of the problems I have.”[39]

[39]           T32, L11-14

I accept the plaintiff’s evidence about the level of pain that he suffers and this is a very considerable consequence for him.
•	It is significant that the plaintiff complains of sleeping difficulties as a result of the pain in his lower back. The physiotherapist noted that the lumbar spine pain disturbed the plaintiff’s sleep.[40] Mr Mangos noted that the plaintiff could not sleep adequately because of the constant pain.[41] In his evidence, the plaintiff stated:

[40]           PCB 41

[41]           PCB 46

“Yes, my sleep is disturbed. I can sleep for two or three hours without disturbance. After that my sleep is disturbed and then I have to get up and go in the dining room, sit on the couch and I don’t go back to the same room because I don’t want to disturb my wife.”[42]

The plaintiff concedes that this sleep disturbance is not every night. He says it would occur three to four times a week but does not count it. I accept the plaintiff on the issue of his sleep disturbance and the significant and serious consequence it is for him. In my view, it is a matter of great significance that a person is denied rest and the ability to enjoy uninterrupted sleep. The plaintiff’s enjoyment of life has suffered a very considerable diminution as a result of his sleep deprivation as described by him.

[42]           T 28, L5-10

55        Counsel for the defendant submitted that in relation to the redundancy package taken by the plaintiff, that the impact on him of the back injury was not so significant. The argument was that the plaintiff had simply retired because it was approximately retirement age, i.e. sixty-five years for him. The plaintiff’s evidence on this issue was that he retired (accepted the redundancy package) because he could not go into the heavier work due to his injuries. I accept the plaintiff’s evidence on this part and discount the argument put forward about the redundancy on behalf of the defendant.

56        It was also submitted on behalf of the defendant that the plaintiff was able to travel overseas on the two occasions and hence did not have any of his enjoyment of life interrupted by the reasons of his back injury and pain complaints. The plaintiff gave evidence that he had taken his medication on each of the trips overseas and continued to take it for the whole time. It is understandable that a person whose two children live overseas would want to make every effort to go over and see them. Further, I accept that he was anxious to see his parents in their later years. The fact that the plaintiff has travelled overseas on two separate occasions for periods of up to three months’ total does not, in my opinion, indicate that the plaintiff has lived his life in a normal way and continued to enjoy it fully.

57        The defendant also submitted that the plaintiff had not lost his ability to play golf or bowls or other similar activities. The position for the plaintiff is that he never played golf or bowls in the past. He was a man who worked and/or enjoyed his life with family and his friends at the Macedonian Club. I find that the plaintiff has done the best he can to get on with his life given the limitations he is now presented with by his physical limitation of movement together with the ongoing pain he suffers.

Conclusion

58        In conclusion, I find that many of the consequences taken in isolation do not satisfy the requisite test. I consider that in combination the consequences of the injury suffered by the plaintiff has caused him very considerable loss as follows:

• The inability to enjoy his life without constant and persistent suffering of pain as described by him and accepted by me;

• The interruption to his sleep patterns;

• The inability to go about his normal life and activities without suffering pain;

• The necessity for medication to control his symptoms.

59        After consideration of all of the evidence, I am of the view that this is a finally balanced case but ultimately, taking into account all of the consequences suffered by the plaintiff as a result of his lower back injury, I am satisfied that such consequences, when judged by a comparison with other cases in the range of possible impairments, can be fairly described as being “more than significant or marked” and being at least “very considerable”.

60 Accordingly, pursuant to s.134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect of the low-back injury suffered by him on 5 September 2005.

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