Morgan v Harry the Hirer Pty Ltd
[2010] VCC 326
•30 April 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-05215
| JOHN HARVEY MORGAN | Plaintiff |
| v | |
| HARRY THE HIRER PTY LTD | Defendants |
| & CGU WORKERS COMPENSATION (VIC) LIMITED |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 April 2010 |
| DATE OF JUDGMENT: | 30 April 2010 |
| CASE MAY BE CITED AS: | Morgan v Harry The Hirer Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0326 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.134AB – application for leave in respect of pain and suffering damages only – injury to the lower back – age of plaintiff – impressive nature of plaintiff and commendable efforts to obtain and remain in suitable employment – restrictions on plaintiff’s activities and upon type of employment in which he can engage – whether burden of proof satisfied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with | Clark Toop & Taylor |
| Mr G Pierorazio | ||
| For the Defendants | Mr D Myers | Wisewould Mahoney |
| HIS HONOUR: |
Background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b)) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The are two named defendants, but their interests coincide entirely and hereinafter I shall refer to them as “the defendant”, meaning Harry The Hirer Pty Ltd, being the plaintiff’s employer.
2 The plaintiff seeks leave to bring proceedings in respect of pain and suffering damages only, and, in so doing, relies solely upon sub-paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act. The injury upon which reliance is placed is one to the low back, and it is alleged that it occurred in a single incident on 25 September 2005.
3 I will not set out here the numerous authoritative decisions of the Court of Appeal which are relevant. I have referred to them in many previous cases.
4 Mr T Monti with Mr G Pierorazio of counsel appeared on behalf of the plaintiff. Mr D Myers of counsel appeared on behalf of the defendant. The plaintiff gave evidence and was cross-examined. The balance of the evidence was documentary in nature and tendered by consent. This saved the Court considerable time and doubtless also saved considerable expense. In addition, detailed and very well prepared submissions were made on behalf of each party.
Factual background
5 The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues of negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 6 The plaintiff was a particularly impressive witness. His attitude towards returning to the workforce after injury has been commendable, and the manner in which he has ensured that he is sufficiently fit to continue working, albeit in much lighter duties, is exemplary. I regard him as a reliable witness of truth, and, quite properly, Mr Myers emphasised that this was not a case in which credit was an issue. I note that my view of the plaintiff is shared by various medical examiners. Professor Peter Teddy, the plaintiff’s treating neurosurgeon, has described him as “…a very pleasant, direct man”. Mr David Brownbill, consultant neurosurgeon, examining the plaintiff on behalf of his solicitors, described him as being “…alert and cooperative without embellishment”. Dr Clayton Thomas, consultant in rehabilitation and pain medicine, also assessing the plaintiff on behalf of his solicitors, described him as a co-operative man, whilst Mr Kenneth Brearley, surgeon, also examining on behalf of the plaintiff’s solicitors, described him as pleasant and strongly built. Mr Peter Scott, senior consultant surgeon, examining the plaintiff on behalf of the defendant, referred to him as being “A pleasant and communicative person”. Mr Scott also described the plaintiff as genuine, well motivated and keen to maintain himself in the workforce. Mr Michael Dooley, orthopaedic surgeon, also examining on behalf of the defendant, referred to the fact that the plaintiff “…is self managing his condition in a very sensible way”. He also expressed the view that there had been no significant psychological reaction to the injury or pain. I might say that I agree fully with this last observation, and shall not allude to psychological or psychiatric reactions further.
7 I agree with all of the above remarks. In addition to giving the strong impression of being pleasant, genuine and reliable, the plaintiff also presented very well generally and it is not at all difficult to believe that, despite his injury, he has made every endeavour to keep himself physically fit and in the workforce.
(ii) The plaintiff’s background, training and education 8 As the plaintiff is seeking leave only in respect of pain and suffering damages, my observations in this regard are briefer than might otherwise be the case. Suffice to say that the plaintiff is aged 39 years, having been born on 27 January 1971. He has a partner, who is a physiotherapist, and with whom he has been overseas and is currently living. There are no children.
9 He completed secondary school until Year 12 level, and has worked in a number of occupations prior to working for the defendant. These were mainly of an outdoors, labouring or physical type. For example, he worked as a labourer on a dairy farm. He has also worked in the hospitality industry. One position which he did occupy was that of a technician in the ski industry, and, as shall be discussed, it is quite apparent that skiing and things associated with it played quite a significant role in the plaintiff’s pre-injury life.
10 In summary, the plaintiff, whilst having a reasonable education and appearing to be a man of quite some intelligence, has obviously been far more attracted by the outdoor life or by work which was of a physical nature.
11 In approximately August 2004 the plaintiff commenced employment with the defendant, which is a furniture hire organisation, in the capacity of a full-time driver and labourer. His duties included the delivery and collection of items of furniture. I have little doubt but that it was a job that was physical in nature and required quite some strength.
The injury
(i) The plaintiff’s health prior to his injury
12 I accept that, prior to September 2005 and the relevant incident of injury, the plaintiff was fit and well and had no history of any prior back injury or symptoms of any magnitude. Some years ago he had suffered upper back pain after lifting a heavy bucket. I do not consider that to be relevant.
13 Insofar as the relevant injury suffered represents an aggravation of a pre- existing condition – and radiological investigations have revealed some disc degeneration, Professor Teddy raising the possibility of the existence of previously asymptomatic degenerative changes in the lumbar spine – in accordance with the authorities it is the aggravated condition which I am to assess. I am quite satisfied that, prior to the incident in question, the plaintiff did not suffer from lower back symptoms. I am satisfied that he suffered no restrictions in his activities, and indeed was very fit and physically active. Accordingly, I am of the view that all the consequences, restrictions and symptoms from which the plaintiff now suffers arise from the relevant incident of injury in September 2005.
(ii) The injury 14 There is no argument but that the plaintiff suffered an incident of injury on or about 25 September 2005 when he was lifting and manoeuvring a large sofa or ottoman at premises occupied by the Collingwood Football Club and in the course of his employment. He developed severe back pain which increased by the next day. He attempted work but could not do it because of the severity of his pain and was seen by Dr Gamboni, who has been described as the “work’s doctor”, seeing him on 26 September 2005. Dr Gamboni took an appropriate history, including the fact that the plaintiff was complaining of left sided low back pain and sciatica. The plaintiff was put on light duties, prescribed Panadeine Forte, and referred for physiotherapy. When reviewed by Dr Gamboni on 3 October 2005 the plaintiff was still very stiff in the lower back, and when further reviewed on 10 October 2005 he was no better and had tightness down the back of his left thigh. Dr Gamboni was of the view that the plaintiff might have a disc injury. He did not see him again after those three initial reviews.
15 On 7 October 2005 the plaintiff attended upon Dr Michael Daly, a general practitioner. Dr Daly took a history which included the problem of tightness under the left hamstring. He noted that straight leg raising was only possible to 30 degrees on the left. In December 2005, Dr Daly organised a CT scan which showed a left sided S1 nerve root compression with extrusion of the L5/S1 disc post-laterally to the left, abutting and displacing the left S1 nerve root, and mild bilateral L5/S1 fact joint degenerative change. In January 2006 the plaintiff received an epidural injection. At that time Dr Daly noted that the plaintiff had signs of diminished lower limb reflexes. The plaintiff continued to see Dr Daly thereafter.
16 In March 2006 the plaintiff was seen by Dr Michael Brighton-Knight, orthopaedic surgeon, this being at the referral of Dr Daly. Dr Brighton-Knight diagnosed focal post-lateral nerve disc herniation compressing the S1 nerve root on the left, but found such things as ankle jerks to be normal. He did not feel that surgery was warranted at that time, but sounded the warning that there can be permanent changes within a nerve root if compression is persistent for more than 12 months and after that time surgery becomes less effective.
17 In late 2005 and early 2006, the plaintiff was also seen on a couple of occasions by doctors at the Olympic Park and Albert Park Sports Medicine Centres. At the time he had constant left leg and buttock pain, which was diagnosed as being secondary to an L5/S1 disc bulge. Dr Blackman, who saw the plaintiff on a couple of occasions, believed that the plaintiff had suffered from a left postero lateral L5/S1 disc prolapse, and slump testing and straight leg raising on the left were a positive. It seems to have been Dr Blackman who organised the epidural injection.
18 Dr Brighton-Knight seems to have reviewed the plaintiff on 26 July 2007 when there had been a significant improvement due to conservative management of the problem, but the plaintiff still had ongoing symptoms, was unhappy, and wanted to see whether anything could be done about the ongoing and radicular pain down his left leg. An MRI scan was organised. This showed L5/S1 disc degeneration with almost complete loss of disc height and complete loss of hydration. Dr Brighton-Knight did not feel that there was actual compression of the nerve root, but thought that it was quite possible that the nerve was conducting pain information because of the local irritation of the disc, and thus was a type of referred pain even if the nerve itself was not injured. Dr Brighton-Knight was of the view that there was no surgery that would be useful in such a situation, but, unfortunately, the plaintiff was going to have to put up with the symptoms.
19 On 21 September 2009 Professor Teddy saw the plaintiff at the request of Dr Daly. Professor Teddy took an appropriate history, including one of numbness over the outer aspect of the left ankle and calf. Upon examination, he noted some wasting of the left calf (as the plaintiff had ruptured his left Achilles tendon on approximately 25 September 2007, the cause of the wasting of the left calf was one of the comparatively few areas of medical dispute in this matter). However, Professor Teddy also noted an absent left ankle jerk and some abnormality in relation to sensation in the left leg. He organised a repeat MRI which showed degeneration with an annular tear of the L5/S1 disc but no obvious nerve root compression. Professor Teddy felt it was more than likely that the plaintiff had an element of neuropathic pain in the left lower limb, probably in the distribution of the L5/S1 nerve roots. Whilst he felt that decompressive surgery was unlikely, he did raise the possibility of surgery, including possible fusion and lumbosacral disc replacement. Professor Teddy’s diagnosis was that the plaintiff may well have had some pre-existing degenerative changes in the lumbar spine that were previously asymptomatic, and may well have suffered injury to the L5 or S1 nerve roots as a result of a degree of herniation of the L5/S1 disc at the time of the incident of injury. Professor Teddy’s conclusions were as follows:
“…he remains symptomatic and surgical intervention should certainly be considered and, perhaps, offered but only after all intensive rehabilitative measures and further investigation to ascertain more precisely the site of origin of his symptoms and signs, and most particularly, the level in the spine to which they pertain… Mr Morgan has chronic pain in the left lower limb possibly of a neuropathic nature…”
20 In his most recent report of 6 November 2009, Dr Daly stated as follows: “My feeling is that John has permanent and significant damage resulting in restriction of movement and pain. I believe that irrespective of what any impairment assessment may show, his ability to earn income as a labourer has been significantly impaired for the remainder of his life.”
21 The plaintiff has also been reviewed for medico-legal purposes. Mr David Brownbill, consultant neurosurgeon, has seen the plaintiff on two occasions. Following his earlier review on 19 December 2007, he reported that the plaintiff’s reflexes in his legs were present and symmetrical with no abnormality of sensation. He diagnosed lumbosacral intervertebral disc derangement with resulting pain and left leg pain arising from nerve root irritation. At that time there were no neurological abnormalities. However, at the subsequent review on 1 December 2009, Mr Brownbill noted focal wasting of the left calf, decreased sensation of the back of the left lower leg, and the absence of the left ankle jerk. Whilst noting that wasting in the left calf may occur in association with a rupture of the Achilles tendon, Mr Brownbill stated that:
“…in the presence also of sensation and reflex changes it may indicate also there has been progressive dysfunction (correcting an undisputed typographical error) of the left S1 nerve root. I consider this to be in association with the demonstrated single level L5/S1 intervertebral disc derangement”.
22 Mr Brownbill thought it likely that the plaintiff had developed some scarring around or within the left S1 nerve root in association with the disc derangement. Mr Brownbill’s ultimate conclusion in relation to the plaintiff’s capacity was as follows:
“He will in the future, need to avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. That will preclude him in the future from returning to his physical sporting and recreational activities such as snowboarding or down hill mountain bike riding.”
23 At the request of his solicitors, the plaintiff was also seen by Mr Stanley Schofield, orthopaedic surgeon, on two occasions. At the time of the first examination on 16 October 2007, the plaintiff had recently ruptured his Achilles tendon and had a plaster immobilising his left leg and foot. Obviously this inhibited the examination carried out by Mr Schofield. Nevertheless, he did express the view that there had been a prolapse of the lumbosacral disc causing left sciatica. He reviewed the plaintiff on 8 December 2009. Upon examination, he noted two centimetres wasting of the left calf and absence of the left ankle jerk. On this occasion Mr Schofield’s opinion was that an MRI scan performed in a non-weight bearing position would be likely to reveal a far greater degree of compression of the lumbosacral disc, which would then be reported not as a bulge but as a prolapse. In any event, he concluded as follows:
“This patient has progressive degenerative change with an increasing degree of narrowing as a result of the rupture of the disc, which occurred in 2005. He is coping with light physical work only. He is not improving with conservative treatment and continues to have left sciatica, which I believe is due to the compression on the left side of the mid-line in the presence of a markedly reduced disc space and exit canal. Continuing conservative treatment will produce a long-term, poor result. In my view, the only reasonable long term treatment is to consider surgery of decompression and spinal fusion at the lumbosacral level.”
24 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, saw the plaintiff at the request of his solicitors on 10 February 2010. On examination he noted wasting of the left calf, but also some altered sensation in the left leg to the lateral aspect of the ankle. Dr Clayton Thomas diagnosed an injury to the lumbosacral spine with a disc injury. He felt that the plaintiff’s condition had been stable for a prolonged period of time, and that there was no expectation that his condition would improve. Whilst the plaintiff had episodic left sciatica, Dr Clayton Thomas was of the view that surgical intervention would be reasonable if the left leg pain became more dominant and disabling, and felt that this may occur over the longer term. He concluded as follows:
“The injury has had a significant impact on his overall quality of life. This is a man who is physically active, energetic and participated in multiple activities prior to the injury. Despite the fact that he is coping well and managing his problem in a very productive manner and presents with no significant emotional sequelae, there clearly has been a substantial alteration to the ability of him to function on a day to day basis in the manner that he was able to perform prior to the injury.”
25 Mr Kenneth Brearley, surgeon, has also seen the plaintiff twice at the request of his solicitors, but, pursuant to that request, his attention was originally focused upon any causative link between the plaintiff’s back injury and the rupture of the Achilles tendon which occurred whilst the plaintiff was performing in a social netball game. However, whilst not being able to find any such contribution, Mr Brearley did carry out examinations of the plaintiff, expressing the view following his earlier examination of 11 June 2008 that: “He suffered a serious injury to the L5/S1 disc with rupture of the disc and a large left-sided prolapse causing left 1st sacral nerve radiculopathy”. He also expressed the opinion that this significant back injury permanently limited the plaintiff to light labouring duties. Mr Brearley reported again on 12 March 2010, noting on this occasion a marked reduction in sensation to pinprick from halfway below the plaintiff’s left knee to the ankle, and the reduction of the left ankle jerk. Mr Brearley expressed the view that the plaintiff still suffered from left sided sciatica and first sacral segment radiculopathy. He noted almost constant discomfort in the plaintiff’s back with pain upon any considerable exertion. In relation to the plaintiff’s activities, he recorded the following:
“His work injury has diminished his recreational activities. He is no longer able to run long distances or snowboard and ski. He cannot ride his mountain bike. Thus there has been reduction in his enjoyment of life. On the domestic scene he is unable to help with the heavier aspects of the housework, particularly vacuuming which causes increased back discomfort or pain.”
26 On behalf of the defendant, the plaintiff was seen by Mr Peter Scott, senior consultant surgeon, on 6 November 2006. Mr Scott diagnosed an acute back strain and an intervertebral disc lesion causing lumbosacral nerve root irritation. He described the plaintiff as genuine and well-motivated and keen to maintain himself in the workforce. Mr Scott did not notice any evidence of things such as the absence of the left ankle reflex. In providing his report, he seems to have been directing his attention considerably to whether or not the plaintiff required ongoing osteopathic treatment.
27 On 15 December 2009 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitors. He expressed the view that, in the incident of injury, the plaintiff sustained a left sided lumbosacral disc prolapse. Mr Dooley observed that the rupture of the Achilles tendon was responsible for most of the wasting of the calf musculature, but also recorded that the plaintiff had an absent left ankle jerk consistent with a period of S1 nerve root compression. He expressed the view that the plaintiff’s lower back condition “… would prevent him from engaging in regular active impact leisure activities”, and that the plaintiff “… would struggle to carry out regular heavy physical work or work that involved a lot of bending and lifting”.
28 I have set out the opinions of the medical examiners at some length at this stage as they are relevant both to the actual diagnosis of injury and to the ultimate ruling as to pain and suffering consequences and whether the burden of proof has been discharged in that regard. I am satisfied that the plaintiff suffered a disc injury at the L5/S1 level. It has been described by Mr Dooley as a prolapse, by Mr Brearley as a rupture, by Professor Teddy as herniation of the disc, by Mr Brownbill as a derangement, by Mr Scott as a lesion, whilst Mr Schofield has described it in terms of a rupture and a prolapse. Mr Brighton-Knight also described it as a disc herniation as well as referring to a complete loss of hydration. Whichever particular term is used, there seems no doubt but that in the incident of injury the plaintiff suffered injury and damage to the L5/S1 disc. I am also quite satisfied that he has ongoing symptoms consistent with the development of left leg radiculopathy. I refer in particular to the sensory abnormality in the left lower leg and the loss of the left ankle jerk, and would refer to the various observations set out above in this regard. I accept Mr Brownbill’s view that it is probable that the plaintiff has scarring around or within the nerve root that is giving rise to progressive nerve root dysfunction. I also prefer his view that the wasting, given the presence of the other sensation and reflex changes, may well also be an indication of this. In short, I accept that the plaintiff has suffered a discal injury at the L5/S1 level with ongoing and progressive left sided radiculopathy.
29 I have already expressed my views as to the issue of aggravation. In relation to permanence within the meaning of the Act, I am satisfied that the plaintiff’s symptoms and restrictions and the consequences of the injury will persist for the foreseeable future. In this regard I refer to the following opinions:
Mr Brownbill – “If intra neural scarring was responsible for the progressive radiculopathy (which Mr Brownbill considers likely), significant improvement would not be likely.”
Dr Clayton Thomas – “His condition has been stable for a prolonged period of time. There is no expectation that his condition will improve. There is a 30% chance that his condition will progressively worsen over time.”
Dr Daly – “Recovery from this disability will not occur.”
Mr Dooley – “I believe that Mr Morgan will continue to note some intermittent low back pain and intermittent lower limb pain.”
Mr Brearley – “He will never be fit for such work (heavy manual labour) in the future …He will be permanently limited to light labouring duties …”
30 On the basis of these medical opinions, and bearing in mind that it is already some four and a half years since the incident of injury and the plaintiff still suffers substantial symptoms and restrictions, it seems to me that the consequences of the impairment resulting from the relevant injury are permanent within the meaning of the Act.
The plaintiff’s employment and other developments since the occurrence of the injury
31 Again, as leave is sought only in relation to pain and suffering damages, less detail than might otherwise be the case is needed under this heading. In essence, following the injury the plaintiff continued in employment with the defendant, performing light duties such as cleaning cutlery. Attempts to return to normal duties were not successful. Ultimately, the pain and restrictions from which he was suffering forced him to leave his employment with the defendant. He ceased that employment in approximately August 2006 and subsequently obtained employment with his present employer, Rangedale Draining Services. His work now involves such things as making videos of underground pipes, and, to a considerable extent, he is able to avoid heavy lifting, twisting and bending, although a certain amount of driving is involved. He is in fact now earning more than he did in his previous employment.
32 As has been stated, the plaintiff ruptured his left Achilles tendon when playing in a mixed social game of netball in approximately October 2007. I gather that this was a “one off” occasion. I previously discussed the tendon injury in the context of the wasting noted in the plaintiff’s left calf. There is little or no suggestion from the medical examiners that the tendon injury affects his employment activities or is responsible for the restrictions upon his lifestyle, which shall be discussed in the course of my ruling which follows.
Ruling 33
I am satisfied that the plaintiff has discharged the burden of proof in this matter. I am satisfied that the plaintiff’s pain and suffering consequences, when judged by comparison with other cases in the range of possible impairments, could fairly be described as being more than significant or marked, and as being at least very considerable. I have arrived at this conclusion for the following reasons, which are not listed in order of importance.
(a)
The plaintiff is aged 39 years. There is nothing to suggest that he will have anything but normal life expectancy. As was said in the Court of Appeal in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181:
“When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is 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 40 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.”
Whilst age is certainly not determinative, it is clearly a factor to be taken into account. The plaintiff has already endured in excess of four and a half years of pain and restrictions and may well have to put up with these for another 40 or so years.
(b) It is quite apparent that snow skiing played a very significant role in the plaintiff’s life prior to his being injured. He comes from a skiing family. He commenced skiing when he was four or five years old. He has worked as a technician in the ski industry. Prior to the injury, he would go skiing 10 to 12 times each season. The plaintiff was clearly a very proficient skier, and rose to the ranks of being a member of the ski patrol at major resorts such as Thredbo and Perisher. Members of the ski patrol attend to people who have had accidents in the snow and are involved in matters to do with safety on the slopes generally. It is obvious that the plaintiff was a skier of a particularly high standard. I think I could also take judicial notice of the fact that, skiers, of varying standards of skill, can and do continue in that sport well into their 60s and sometimes beyond. This has been lost to the plaintiff. The contrary was not put as a proposition. Mr Brearley has simply stated that the plaintiff is no longer able to run long distances or snowboard and ski. Mr Brownbill has stated that the plaintiff is precluded from returning to physical sporting and recreational activities, and Mr Schofield has observed that the plaintiff will not be able to engage in all previous sporting activities which causing jarring of the spine.
I am satisfied that the plaintiff has not only lost the capacity to engage in skiing, but also in snow boarding, which is an allied sport. It seems to me that such losses, and particularly that of skiing, have left a substantial hole in the plaintiff’s life. He and his partner have recently been on a lengthy trip to South America. I accept his evidence that, but for the injury, this would have been a trip which would have involved him in quite a lot of skiing. The state of his back prevented this. Given his background, his enthusiasm for the sport, the regularity with which he practiced it and the level of proficiency to which he had risen, the loss of the ability to participate in snow sports is a substantial one indeed.
(c)
The plaintiff has also lost the capacity to engage in other physical pursuits and activities. It is apparent that he has always been a very fit person who enjoyed and participated in work and activities which allowed him to maintain that high level of fitness. Indeed, since the injury he has striven to maintain some level of fitness to assist in the self-management of his symptoms. However, his ability to engage in mountain bike riding, another sport which he previously enjoyed, is now considerably restricted and, as I understand it, it is a far less aggressive form of cycling in which he now engages. Essentially he now attempts to confine himself to smooth roads where he is not being jolted. Before the injury he could jog or run some five to ten kilometres, but is now limited to much shorter distance. He also suffers more serious symptoms if he engages in activities such as bending, lifting, vacuuming, shovelling and the like.
(d)
The plaintiff is a person who, despite his apparent intelligence and presentability, preferred heavy and demanding outdoor work to sedentary occupations or jobs of a less physical nature for which he may well otherwise have been qualified. His capacity to engage in such physically demanding work has been destroyed. That is virtually the unanimous view of the medical examiners. Professor Teddy has referred to the plaintiff being able to work in a reduced capacity. Mr Brownbill has expressed the opinion that the plaintiff will need to avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. Mr Schofield has said that the plaintiff can only be involved in light physical work. Mr Brearley has stated that, “As a result (of) his back injury John Morgan is quite unable to return to heavy manual labour. He will never be fit for such work in the future …”. In Mr Scott’s opinion, “The plaintiff is fit for fulltime work avoiding heavy labouring activities”, whilst Mr Dooley is of the opinion that the plaintiff would struggle to carry out regular heavy physical work or work that involves a lot of bending and lifting. The plaintiff has been fortunate to find an occupation which, at least for the time being, suits him. Doubtless his attending at the gymnasium regularly, swimming and otherwise keeping himself fit, along with the taking of medication, has assisted in enabling him to keep working. However, any areas of substantial physical endeavour, and the occupations which he preferred, are now closed to him, and that shall remain the case for the foreseeable future.
(e)
In addition to the restrictions upon the plaintiff’s activities, there is the issue of the pain suffered by him. As stated, he suffers pain which is worsened by the activities described. That pain is at times severe, and includes sciatic pain down the left leg. Such sciatic pain occurs three to four times a week and can last for the whole day. The plaintiff was taking five or six Voltaren tablets a day, but is attempting to reduce that because of a fear of ulcers. Ms Fairbrother, who has been in a relationship with the plaintiff since early 2008, is a qualified physiotherapist. She travelled with the plaintiff to South America and also sees him on almost a daily basis. At times they have lived together. She has sworn that she has personally witnessed the pain, restrictions and difficulties which he has suffered. She has witnessed him taking a lot of painkilling medication such as Voltaren and Panadeine Forte. She has provided treatment to him, and is aware of his regular complaints of significant pain in the lower back and left buttock, and of referred pain down the back of the left leg to the calf. She has also sworn as to the difficulties that he encountered whilst travelling and to the fact that he then increased the amount of painkilling and anti-inflammatory medication which he needed to take. She has referred to the curtailment of his former social, recreational and domestic activities. She was not cross-examined. Given the plaintiff’s age, this level of ongoing pain, and with quite severe exacerbations, is likely to persist for decades.
34 Bearing in mind all of the above, I am of the view that the plaintiff has discharged the burden of proof and has satisfied the statutory test.
Conclusion
35 The plaintiff is successful. He has discharged the burden of proof. Leave is granted to him to bring proceedings in respect of pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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