Mifsud v Victorian WorkCover Authority
[2018] VCC 2091
•17 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-05649
| ERIK MIFSUD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 November 2018 | |
DATE OF JUDGMENT: | 17 December 2018 | |
CASE MAY BE CITED AS: | Mifsud v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2091 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the spine – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Leave granted to the plaintiff to bring proceedings to recover damages for pain and suffering as a result of the injury suffered in the work accident.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C S O’Sullivan | Adviceline Injury Lawyers |
| For the Defendant | Mr B R McKenzie | Minter Ellison |
HER HONOUR:
1 This is an application brought by the plaintiff for leave to bring proceedings for the recovery of damages pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him to his lumbar spine he alleges was caused over the course of his employment with Star Track Express (“the employer”).
2 The plaintiff alleges that the injury to the lumbar spine is a “serious injury” within the meaning of paragraph (a) of the definition of “serious injury”. The relevant body function in which there has been an impairment or loss is the lumbar spine. The application is only with respect to pain and suffering consequences.
3 The plaintiff relied upon five affidavits: three sworn by the plaintiff on 30 June 2015, 20 September 2017 and 25 September 2018; an affidavit sworn by his partner, Ricki Gwin, on 18 September 2017 and an affidavit sworn by his mother, Frances Mifsud, on 27 September 2017. The plaintiff was cross-examined. I have not summarised the evidence, including the affidavits of the plaintiff; however, I will refer to the relevant evidence of the plaintiff, Mr Gwin and Ms Mifsud in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The issues
4 The defendant denies that the plaintiff has a “serious injury” as defined. Counsel for the defendant said the following issues arise:
(i) First, there is an issue as to ongoing causation;
(ii) Second, disaggregation or disentanglement of consequences associated with the upper back or neck from consequences associated with the lower back;
(iii) Third, this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered as being “more than significant or marked” and as being “at least very considerable” when compared to other cases in the range.
The credit of the Plaintiff
5 The plaintiff’s credit was not in issue. He answered questions directly and without exaggeration. He was straightforward in his presentation in Court. There was no suggestion in the medical evidence that the plaintiff’s credit was in issue and there was no real challenge to the plaintiff’s credit by counsel for the defendant. The plaintiff made concessions where appropriate. I note that the plaintiff was under surveillance. I infer that any surveillance taken of the plaintiff would not have assisted the defendant’s case as no surveillance was shown to the Court. I also take into account that a number of the medical witnesses said the plaintiff presented in a straightforward manner and did not embellish or exaggerate his disability. Those witnesses were Dr Paul Pers[1] and Dr Chris Baker.[2]
[1]Defendant’s Court Book (“DCB”) 61
[2]DCB 45
Causation
6 In relation to the causation, the medical evidence is as follows.
7 In a report dated November 2009, Ms Melissa Conlin, physiotherapist, confirmed that she has treated the plaintiff with physiotherapy since July 2009, when he reported low back pain radiating into his left leg.[3]
[3]Plaintiff’s Court Book (“PCB”) 32
8 In January 2010, Dr Scott Tunaley, general practitioner, completed a medical practitioner questionnaire dated 8 January 2010[4] and reported that the plaintiff complained of L5-S1 disc pathology and lower back pain.[5] He had received physiotherapy with a view to self-management and was undergoing a gym program, supervised by his physiotherapist.[6]
[4]PCB 33-36
[5]PCB 33
[6]PCB 35
9 In a second medical practitioner questionnaire dated 7 April 2010,[7] Dr Tunaley said that the plaintiff had a gradual onset with his normal work for the previous twelve to fourteen months, but had put up with the pain. He concluded it was likely the plaintiff had a pre-existing problem which was aggravated by his work. He said the plaintiff needed to change employment.[8]
[7]PCB 37-39
[8]PCB 37-38
10 In September 2017, Dr Kieran Farrell from the Western Regional Health and Osteopathy Practice reported that the plaintiff presented on 21 April 2017[9] complaining of low back pain. He had previously been treated for unrelated rib and cervical pain.[10] The report stated that the plaintiff reported pain in the low back, radiating down his left anterior thigh, three to four times per day, and weakness in the left knee when walking. The plaintiff reported that he had suffered a back injury when working for the employer in 2009.[11]
[9]PCB 40-43
[10]PCB 40
[11]PCB 40
11 Dr Farrell diagnosed a chronic L5-S1 disc protrusion which is compressing his left S1 nerve root.[12] This was confirmed by an MRI scan of the plaintiff’s lumbar spine taken on 10 August 2017. Dr Farrell said the pain the plaintiff experiences in his left anterior thigh and the weakness in his left knee is the result of lumbosacral radiculopathy due to the compression of the left S1 nerve root.[13] It was his opinion that the plaintiff’s condition is the result of the injuries suffered during his employment with the employer in early 2009. He said there was no history of any other traumatic event or plausible onset of injury present which could have led to his current clinical condition.[14]
[12]PCB 41
[13]PCB 41
[14]PCB 41
12 The plaintiff had recently re-aggravated his low back condition, which caused his familiar lumbar pain to return, along with pain referring down to his left anterior thigh. The plaintiff was unsure of the cause of his most recent flare up. Dr Farrell said the plaintiff manages his condition with osteopathic intervention and self-management techniques. The injury has the potential to flare up and he will continue to be vulnerable into the foreseeable future.[15]
[15]PCB 41-42
13 In March 2018, Dr Farrell confirmed that he continued to treat the plaintiff’s injury once every three weeks in order to manage the pain levels, increase his lumbar mobility and reduce local muscle spasm. He said the frequency and intensity of the low back pain has not decreased since his last report. The plaintiff reported experiencing pain referred down his right leg, along with pain referring down his left leg, which he was already experiencing.[16] Dr Farrell said the plaintiff can perform his workplace duties and hours, but cannot perform those duties pain free. The plaintiff reported sitting for periods of longer than twenty minutes and standing for periods of greater than four hours aggravated his low back pain. He does not possess the physical capabilities to remain in any one position for an extended period of time without pain. He said it is possible that the plaintiff’s condition could deteriorate further. He referred the plaintiff to a musculoskeletal pain specialist, Dr Steven Jensen.[17]
[16]PCB 43
[17]PCB 43
14 In March 2018, Dr Steven Jensen examined the plaintiff. It was his opinion that the original back pain may have been due to the L5-S1 disc prolapse, but with some encroachment of the left moreso than the right S1 nerve root. He was concerned that neurological signs displayed by the plaintiff and the inconsistency of his major pain, being left anterior thigh pain, was an atypical referral pattern for an L5-S1 disc prolapse. He recommended that the plaintiff be referred to a neurologist.[18]
[18]PCB 48
15 In April 2018, Dr Michael A Poon, neurologist, examined the plaintiff on referral from Dr Jensen. He diagnosed an L5-S1 disc protrusion, confirmed on MRI scan, performed on 10 August 2017. He said the disc is not the cause of the plaintiff’s thigh pain. There may be diagnoses pertaining to his thigh pain and left knee giving way that is not neurological in origin, and he referred the plaintiff back to Dr Jensen. He said the prognosis on the L5-S1 disc is that it will continue to degenerate over time.[19]
[19]DCB 44-45
16 In July 2018, Dr Jensen performed an epidural transforaminal injection, targeting the left L5-S1 nerve root foramen under fluoroscopy guidance. The plaintiff reported improvement following this intervention. Dr Jensen concluded that the L5-S1 disc prolapse and subsequent treatment to the injuries suffered during the course of his employment with the employer in 2008-2009 is the source of the plaintiff’s symptoms and caused by his employment. He concluded that the current condition relating to his low back results from, and continues to be, materially contributed to by his work injury.[20]
[20]PCB 58
17 In May 2017, the plaintiff was medically examined by Dr Jennifer Flynn, orthopaedic surgeon, at the request of the plaintiff’s solicitor. She diagnosed an L5-S1 disc protrusion with left-leg radiculopathy. She described the plaintiff’s prognosis as poor and that it was likely to progressively deteriorate in the future, particularly considering the pathology on CT scan and his age. She accepted that the injury was as a result of his employment with the employer.[21]
[21]PCB 65-70
18 In September 2017, the plaintiff was medically examined by Dr Ian Dickinson, orthopaedic surgeon, at the request of the defendant. Dr Dickinson diagnosed a disc protrusion with ongoing symptoms, which related to his work injury in 2009. Ten days later, Dr Dickinson was supplied with further information, in particular general practitioner attendance records and those of the osteopathic clinic of Dr Farrell. Dr Dickinson concluded that there was no causal relationship between the plaintiff’s symptoms to the injury of 2008-2009 because he would expect the plaintiff to be reporting symptoms of posterior pain in the thigh, rather than anterior symptoms in the thigh.
19 In October 2017, Dr Flynn was requested to provide a further report based on additional material, in particular, reports of Dr Ian Dickinson dated 18 and 28 September 2017. She was also provided with radiological material dated 12 August 2019, 24 April 2012 and 17 August 2017. It was her opinion that the plaintiff’s current condition is related to his work injury from 2009. She agreed with Dr Dickinson that there was no connection between the workplace condition of onset in September 2008-2009 and the reported cervical and thoracic symptoms, which are not part of this claim. She considered them to be separate and unrelated conditions.[22]
[22]PCB 71-74
20 The plaintiff reported to Dr Flynn that he had a constant dull ache of the low back since 2008 to the present time, which had been managed with intermittent treatment. Further, that the most significant improvement in managing his symptoms was changing from a physically strenuous role. She accepted that it was reasonable that the plaintiff had self-managed his symptoms, which explains the gap in seeking treatment, as highlighted by Dr Dickinson. She accepted that the plaintiff’s symptoms have persisted for longer than usual, but accepted there is a subset of patients in whom radiculopathy of back pain recurs. She accepted that the plaintiff would appear to fall within this subset of patients.
21 Dr Flynn was unable to explain the plaintiff’s lower limb neurological symptoms on the basis of his recent MRI report. She noted that the plaintiff’s lower limb neurological symptoms are a minor complaint and it is his low back pain that troubles him most significantly. Further, it is not unusual for patients to report atypical neurological symptoms in relation to spine or peripheral nerve complaints. She said this is not a reason to discount the plaintiff’s explanation of his complaint. She said the plaintiff’s low back pain is likely to be either mechanical or discogenic in nature. Further, this type of low back pain, in the setting of a previous large disc protrusion that has persisted on imaging studies over several years, is entirely consistent with the plaintiff’s injury, initial complaint and ongoing low back pain. She said it was her view that the plaintiff’s previous employment at the time of the injury in September 2008 continues to contribute to his current low back pain, but not his cervical and thoracic complaints.[23]
[23]PCB 71-74
22 In May 2018, Dr Dickinson was provided with reports from Dr Poon; Dr Jensen of January, February and March 2018; Dr Farrell of March 2018, and Dr Flynn of May and October 2017. He concluded that the plaintiff’s anterior leg pain symptoms are not due to the lumbosacral disc protrusion at L5-S1. He said, at this time, back pain following the original injury is not related to the original injury. There is a poor relationship between disc pathology and back pain. The likelihood is that the plaintiff’s back pain is as a result of a later event. Accordingly, there is no causal relationship between the plaintiff’s current symptoms and the injury of 2008-2009.
23 In September 2018, Dr Dickinson re-examined the plaintiff and maintained the views he expressed previously. There was no path of reasoning. Further, he did not deal with the fact that in July 2018, Dr Jensen performed the transforaminal injection that had the result that the plaintiff received some benefit. As a result of the injection, Dr Jensen concluded that the L5-S1 disc prolapse was significant clinically and the likely source of his ongoing back and leg symptoms.
24 The current medical evidence, other than Dr Dickinson, is that the plaintiff’s current condition is related to the 2008-2009 injury. Dr Dickinson said the plaintiff’s current condition is due to a later event. There was no evidence of a later event. Further, in cross-examination, it was not suggested to the plaintiff that there had been a later event. In light of the reports of Dr Flynn and Dr Jensen, I accept that the plaintiff’s injury to the lumbosacral spine is work-related.
Disentangling the consequences of the Plaintiff’s neck pain
25 Counsel for the defendant submitted that the plaintiff had treatment for his upper back and neck pain. As a result, where the plaintiff has two or more injuries to different body parts, he should start by identifying all the pain and suffering consequences the plaintiff has sustained. The Court can then disaggregate the consequences to identify which are attributable to which impairment or body part.[24]
[24]Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraphs [24]-[25]
26 The plaintiff’s evidence was that he attended an osteopath for his low back pain. In late 2014, he had some pain and stiffening in his neck for which Dr Van Ooi, osteopath, provided treatment. The pain in his low back and legs is a lot worse than the pain in his neck. He cannot think of anything that the pain in his neck stops him from doing. The plaintiff’s general practitioner’s notes of November 2014 refer to complaints of stiffness in the cervical spine, on 6 and 11 November 2014.
27 The osteopath’s notes suggest that on three occasions in November 2014, on one occasion in March 2015, and in April 2017, the plaintiff reported thoracic and cervical pain, for which he received treatment. I accept these references in the notes to thoracic or cervical spine are overwhelmed by the attendances for the lumbar spine. I accept the plaintiff’s evidence that any pain/stiffness in his neck did not restrict his activities. Accordingly, I consider there is overwhelming evidence that the plaintiff’s treatment was for the lumbar spine. Accordingly, no issue of disentanglement arises.
Consequences
Pain
28 The plaintiff’s evidence is that he has a constant dull ache in his low back, which, over time, has gradually increased in severity. He finds that arching his back over relieves the pain. If he straightens his back it causes pain in his lower back, sending stabbing pain down his left leg. When the pain is bad it can extend into his left foot. In March 2018, the plaintiff reported to Dr Jensen pain levels of 6 out of 10 and rated the impact of his pain on his enjoyment of life at 7 out of 10. In July 2018, the plaintiff underwent a transforaminal epidural injection which was targeted at the L5-S1 nerve root foramen which relieved the leg pain. The plaintiff’s evidence is that he gained some relief from the leg pain for six to eight weeks, but no relief from pain in his low back.
29 The medical evidence is largely for continuing symptoms of the same nature in the low back. While the epidural injection provided the plaintiff with temporary relief from leg pain, the pain in the low back remains. The plaintiff’s evidence is that the medical witnesses can offer him little, other than medication, and further injections.
30 I accept the pain the plaintiff suffers in his low back and legs is a consequence at the high end of the scale. I accept that it has continued for almost ten years. The medical evidence is that it is likely to continue indefinitely. I accept that for this plaintiff, aged thirty-three, this is a consequence at the high end of the scale.
Treatment
31 The plaintiff’s evidence is that in recent times, the medical witnesses have offered injections and diagnostic tests which he has undertaken. In his most recent affidavit, the plaintiff said he received benefit from the recent epidural injection for six to eight weeks in respect to leg pain only. The injection did not assist the low back pain. The leg pain has returned. The plaintiff receives osteopathic treatment on a regular basis, on an average of every three to four weeks, together with receiving advice on stretching exercises. Further, I accept that this is not a situation where the medical witnesses have offered the plaintiff surgery which he has refused or a pain management program. I accept that the treatment the plaintiff has undergone is a consequence and currently is at the middle of the range.
Medication
32 The plaintiff’s evidence is that he avoids taking medication as the stronger medication makes him feel nauseous. He continues to take Panadeine Forte on average one to two per week, and Tramadol, 200 milligrams, which he can only take when at home as it makes him drowsy. He also takes Voltaren.
33 I accept the level of medication he takes is at the low end of the scale; however, I take into account his use of medication is limited because it affects his stomach and makes him drowsy.
Flare ups
34 The plaintiff said that he suffers from flare ups of pain from simple things such as bending over to put a plate in the dishwasher. He is therefore fearful of doing anything strenuous. His partner, Ricki Gwin, deposed that the pain the plaintiff suffers is getting progressively worse and the flare ups of pain are now more regular. The plaintiff reported flare ups to Dr Farrell, who accepted the potential for flare ups, and said he will continue to be vulnerable to flare ups for the foreseeable future. I accept this is a consequence I can take into account, which I assess in the middle to high end of the range.
Sleep
35 The plaintiff’s evidence is that the back pain causes sleep difficulties. He reported to Dr Jensen disturbed sleep because of the pain. The plaintiff said he does not believe that he has had an uninterrupted sleep in the past two years. The constant lack of a good night’s sleep makes it difficult for him to go to work each day. I accept disturbed sleep is a consequence which I can take into account. I accept this consequence is at the medium level of the scale.
Dogs
36 The plaintiff’s evidence is that he has three Labrador dogs. Before his injury, he could run with the dogs, and walked them regularly. He had difficulty taking them for walks because they pulled on their leads, causing him increased pain. The dogs now live with his parents because he was unable to care for the dogs as required. I accept this is a consequence which I can take into account, which I accept is at the high end of the range.
Hobbies
37 The plaintiff’s evidence is that he enjoyed working on cars, motorbike riding, bike riding, bushwalking, camping and water skiing. He reported these hobbies to Dr Jensen. The plaintiff said that he is frustrated that he cannot resume his hobbies. He feels that because of his low back pain and restrictions, he lives a life of someone much older than his thirty-three years
38 The plaintiff’s evidence is that he can no longer work on cars as he used to because of his back injury. He enjoyed working on cars, which involved mechanical work or basic servicing of his own car or for friends and family. He does some occasional work on cars; however, it takes him longer to do the work, and the bending, twisting and awkward postures cause pain in his lower back and legs. His partner said that the plaintiff was a real car enthusiast and gets agitated when he cannot undertake maintenance on his car. He used to derive enjoyment from this activity and now becomes frustrated. I accept this is a consequence which I can take into account. I accept this is a consequence at the low to medium end of the range.
39 The plaintiff’s evidence is that he enjoyed dirt bike riding, which he can no longer undertake because of his low back injury. The bending over the handlebars and the vibrations and bumpiness of riding on a dirt bike increases the pain in his low back. In cross-examination, the plaintiff said he last went dirt bike riding six to seven years ago.[25] His partner confirmed that they no longer ride motorbikes. The motorbikes were sold because they were no longer using them. The plaintiff’s mother said that her son enjoyed motorbike riding on her property with his brothers but does not do so anymore. I accept this is a consequence which I can take into account.
[25]Transcript 39
40 The plaintiff’s evidence is that he avoids household chores and maintenance tasks and relies heavily on his partner and his family. He can no longer repair fences or a shed on his property. He cannot cut up wood or remove a fallen tree. If he undertakes such tasks he will suffer increased pain the following day. The plaintiff’s partner said that he is required to undertake all maintenance around the property whereas before it was a shared activity. Now if improvements are required, they engage contractors. Normally they would have preferred to perform those activities themselves. In cross-examination, the plaintiff said the last major activity he performed on his property was lawn mowing six to seven weeks ago for between 15 to 20 minutes when he used a self-propelled lawn mower. In re-examination, he said he no longer chops firewood. His partner does the heavy lifting. The plaintiff’s mother deposed that she and her husband assist the plaintiff with maintenance work on his property. This seems to frustrate the plaintiff as he would prefer to do these activities himself. I accept the plaintiff no longer can perform unrestricted household chores and the maintenance of his property. This is a consequence that I can take into account, which I assess at the middle to high end of the range.
41 The plaintiff’s evidence is that he enjoyed camping, bushwalking and water skiing. The plaintiff’s evidence is that these activities are interfered with due to his low back injury. He thought the last time he went fishing and camping was in 2015. This was confirmed by his mother. I accept this is a consequence which I can take into account. I accept this is at the medium end of the range.
Work
42 The plaintiff’s evidence is that he has been working full time as a car salesman with the Hopper Motor Group in Werribee. His employer knows about his back injury and is fairly understanding. Other workers generally do the heavier duties of the job such as putting out the flags and bollards when opening, and taking them in when closing; however, sometimes the plaintiff is required to handle the flags and bollards, and as a result, his low back pain increases.
43 At the time of the application, the plaintiff informed the Court that he had ceased work with his employer as he moved house which would involve increased travel time of one hour and 45 minutes. He will look for employment closer to his new home. The plaintiff reported to Dr Farrell that he could perform his work duties, but with pain.
44 I accept that the plaintiff has continued to work until recently performing his work duties with pain and the assistance of other employees, who perform the heavier duties of handling the flags and bollards. On occasions, the plaintiff has been required to do those duties, with the result that he has suffered increased pain. I accept that this is a consequence which I can take into account which I assess at the middle to high end of the range.
Stoicism
45 Counsel for the plaintiff submitted that the plaintiff is stoical. The evidence is that the plaintiff suffered a back injury in 2008-2009.
46 The plaintiff has remained in the workforce. The medical evidence is that he cannot return to courier-type work. I accept it is a measure of significance that a certain type of work is now not available to the plaintiff in the future which is referred to in the reports of Dr Pers, Dr Dickinson, Dr Mutton, Dr Baker, Dr Flynn and Dr Tunaley.
47 The plaintiff’s evidence is that he has suffered pain which has become worse. The plaintiff impressed me as a man who was prepared to endure a fair amount of pain as he went about his work and everyday activity. I accept that the plaintiff is stoical and this is a consequence I can take into account.
48 In Haden Engineering Pty Ltd v McKinnon,[26] Maxwell P said:
“As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain.[27] In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.”
[26](2010) 31 VR 1 at paragraph [13]
[27]Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [3]
49 I take into consideration what the Court of Appeal said in Stijepic v One Force Group Pty Ltd[28] that where a man or woman has to put up with impaired consequences for another forty years, those consequences are more likely to be judged more seriously than the same consequences which a man or woman may have to put up with for a much shorter period of time. In the case of this plaintiff, who is thirty-three years of age, he has had back pain for almost ten years. His life expectancy is probably for another fifty years. In the circumstances, where a number of the medical witnesses have said that things are likely to remain much the same, then this is a consequence of real significance. I also take into account what Dodds-Streeton J said of the endurance of permanent daily pain requiring frequent medication. Such circumstances “… must, according to ordinary human experience, raise a real prospect of a very considerable consequence”.
[28][2009] VSCA 181
Conclusion
50 I accept that the plaintiff has suffered the above-mentioned consequences. Those consequences are supported by the evidence of the plaintiff, the evidence of his partner, his mother and the medical evidence. I accept that the plaintiff had a physically active life, and to all intents and purposes, the plaintiff lives with his injury and gets on with it. I accept that he has continued working but, as a result, his pain levels have increased.
51 I am satisfied that the plaintiff was involved in a work incident which, to this plaintiff, resulted in him experiencing symptoms of a physical nature. The consequences of his low back injury have impacted upon his life as he knew it before the work accident. He has suffered for almost ten years and the medical evidence is guarded as to the future. I accept that the plaintiff’s low back injury is permanent. Given the plaintiff’s age of thirty-three, I consider that important. I take into account that the plaintiff is stoical.
52 For the foregoing reasons, I am satisfied the plaintiff has established that the consequences to him of his impairment can reasonably be described as being “serious”. In my experience, the consequences to the plaintiff may measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal, but rather attributed appropriate weight to each consequence in light of the evidence.
53 I accept the low back injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as “at least very considerable” and certainly “more than significant or marked”.[29] In making this assessment, I have looked at the consequences of the low back injury alone.
[29]Humphries & Anor v Poljak [1992] 2 VR 129
54 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for pain and suffering as a result of the injury suffered in the work accident.
55 I will hear the parties on costs.
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