Morphou v Minter Ellison Lawyers
[2010] VCC 917
•26 July 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-04805
Plaintiff
ANDREW MORPHOU
v
MINTER ELLISON LAWYERS
Defendant
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 July 2010 |
| DATE OF JUDGMENT: | 26 July 2010 |
| CASE MAY BE CITED AS: | Morphou v Minter Ellison Lawyers |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0917 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – s134AB Accident Compensation Act 1985 – claim in relation to pain and suffering only – permanent impairment of the plaintiff’s lumbar spine by reason of aggravation of pre-existing asymptomatic degenerative changes (spondylosis)– whether the pain and suffering consequence achieves the “very considerable” level.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Mighell SC | Zaparas Lawyers |
| B Y Knoester | ||
| For the Defendant | G K Coldwell | Herbert Geer |
| HER HONOUR: |
Introduction
1 From 1989 until August 2004 the plaintiff was employed by the defendant lawyers initially in mail room duties and subsequently in general maintenance, office and clerical duties. The latter included collection and delivery of boxes of documents weighing between about five and 25 kilograms.
2 By originating motion the plaintiff seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) ("the Act") to bring proceedings for the recovery of pain and suffering damages only.
3 The application is made under paragraph (a) of the definition of serious injury; that is serious permanent impairment or loss of function of the plaintiff's lumbar spine by reason of permanent aggravation of pre-existing degenerative changes (spondylosis) in his lumbar spine.
4 Whilst some of the medical evidence appeared to implicate heavy work throughout the course of the plaintiff's employment in the development of degenerative changes, in keeping with the plaintiff's evidence he relied on a specific incident at work on 7 September 2001 which he said rendered his condition symptomatic. He described this incident in paragraph 4 of his affidavit, sworn 9 June 2009 in the following words:
“4. On Friday the 7th September, 2001 at about 12.30pm I was arranging boxes of documents for a partner in an office at the employer’s premises. I was moving about six boxes of documents. As I pulled one full box weighing about 25 kilograms out from a shelf at about head height, holding it with both hands in the hand holds which were cut into the side of the box, I felt sharp pain in my lower back. It felt as if my lower back had fallen a little. I touched my back but it was not tender. I went to my desk on another floor to pick up two VHS Videos which I was going to copy. I went to the copying room where I sat down to do the copying. When I stood up I felt sharp back pain again but this time it was such that I could hardly move. I went back to my desk and told Richard Valdon who is in charge of the office. Another worker Errol Turkell took me in a car to Mr Sweeney a doctor nearby. Mr Sweeney have me pain killers and told me to go home and rest.”
5 During cross-examination the plaintiff rejected the report of the defendant's orthopaedic surgeon, Mr O'Brien on 20 December 2001, namely, that the plaintiff had also stated that the second incident of sharp back pain after the plaintiff picked up two VHS videos for copying had occurred about two months later on 2 November 2001.
6 Relevantly, the plaintiff was said to have also reported incidents on separate dates, to, for example, general surgeon, Mr Francis and orthopaedic surgeon Mr Jones, who examined him at the request of the insurer on 1 February 2002 and 27 June 2002 respectively. Nevertheless, I have accepted the plaintiff's evidence of successive episodes of sharp lower back pain on 7 September 2001 because the defendant did not pursue this issue in its submissions or with any vigour during cross-examination. Furthermore, general practitioner Dr Baglar, who treated the plaintiff for a lower back injury from 22 October 2001, consistently received a history of an incident occurring on the date alleged in the plaintiff's affidavit and evidence.
The areas of dispute
7 Whilst conceding that the impairment of the plaintiff's lower back may be considered "significant" or "considerable", the defendant contested whether when compared with other cases in the range of possible impairments, the plaintiff's alleged pain and suffering consequence was more than significant or marked, or at least very considerable.
8 In this regard it relied on expert opinion obtained from consultant radiologist, Dr Kam who in 2010 assessed all of the radiological evidence obtained between 2001 and 2009. Having viewed the film for the first time in June 2010, whilst his saw no inconsistency between this and the clinical findings reported by the plaintiff's treating doctors, without describing the extent to which the disease had progressed, Dr Kam nevertheless sought to exclude the plaintiff's employment with the defendant as a possible factor in the progression of degenerative disease evidenced by the last MRI study of the plaintiff's lumbar spine undertaken in June 2009. This progression, he said, could be attributed to factors, such as:
"...natural disease progression as a result of age related wear and tear, major trauma, repeated minor trauma, nutritional or genetic factors. These factors may act alone or in any combination to result in change over time."
9 In effect, the defendant argued that the pathology obtained was consistent with age-related multilevel degenerative change, that the aggravation injury had not caused significant or long-standing pathology in the plaintiff's lumbar spine and that the injury no longer materially contributed to the pain and restriction described by the plaintiff.
10 The plaintiff's credit was not directly challenged. Having read the material and heard the plaintiff's evidence I formed the view that despite some of the contradictions in the evidence given when asked he did his best to explain and describe for the Court the circumstances relating to his injury and the pain and suffering consequence he attributed to ongoing work-related impairment of his lumbar spine.
The statutory requirements
11 In accordance with the Act and case law interpreting the relevant provisions, the following considerations apply to s134AB.
12 To succeed, the plaintiff must prove a compensable injury and that the pain and suffering consequence of injury-related impairment, when judged by comparison with other cases in the range of possible impairments of the lumbar spine is more than "significant" or "marked" and at least "very considerable".
13 In summary, the plaintiff is required to establish a compensable injury after 20 October 1999 which, by definition, includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease; the nature of the injury; the consequences as at the date of hearing, in this case confined to the pain and suffering consequence, to which compensable injury materially contributes; and that this consequence is serious in the sense that it is permanent and "very considerable".
14 Any psychological or psychiatric consequences of the plaintiff's physical injury cannot be taken into account in determining this application for leave under paragraph (a) of the definition of serious injury.
15 In this case, where there is pre-existing degenerative disease of the lumbar spine, I must consider what the evidence disclosed as to the prior condition of the plaintiff's spine and determine whether any additional impairment resulting from the incident on 7 September 2001 is serious and permanent.
The evidence called and tendered
16 The plaintiff deposed to the accuracy of his affidavit and with the leave of the Court, he gave further evidence in which he described his current medication regime and confirmed that his ability to undertake the domestic, social and recreational activities described in his affidavit had not changed. Moreover, it was common ground that the plaintiff ceased employment in 2004, not 2005 as recorded in paragraph 6 of his affidavit. The plaintiff was cross-examined at length.
17 The material tendered by the plaintiff consisted of his Court Book from which a number of documents had been removed.
18 The defendant tendered its Court Book from which a number of documents had been removed and to which, with the leave of the Court, a report from the plaintiff’s treating general practitioner, Dr Baglar dated 25 May 2003 and addressed to the insurer, was added.
The plaintiff's background and treatment until his employment ceased
19 The plaintiff is 70 years of age and married with one adult son. He was born in Cyprus and at age 13 migrated to Australia with his parents. In Australia, after completing an apprenticeship, the plaintiff worked for more than 20 years as a fitter and turner, prior to obtaining an auctioneer's licence and working for a further six years as an auctioneer. However, as I have already mentioned, from 1989 he was employed by the defendant until August 2004 when he agreed that he was told by the defendant that it could no longer continue to offer him the light duties he was then performing.
20 During the course of the hearing it was agreed that prior to the incident the plaintiff worked full time, that is depending on whether he performed overtime, 40 or 48 hours per week. In paragraph 3 of his affidavit the plaintiff generally described his duties as including:
“3. …taking boxes of files to and from the employer’s warehouse in Port Melbourne. I would usually travel down to Port Melbourne in a Holden station wagon at about 10.00 am and 3.30 pm each day collecting and delivering boxes of documents. Such boxes were about 40 centimetres by 30 centimetres by 20 centimetres in size and weighed between about 5 and 25 kilograms depending upon the nature of the contents and how full they were. The warehouse was about 100 metres by 50 metres in size and had 5 rows of double sided racking with a break in the middle and racking around the walls. Boxes were stored on the floor under the racking and on various levels with the top shelf about 3 metres from the floor. To access the higher levels there was an A-frame ladder. The heaviest part of the work was removing and carrying down or passing down heavy boxes of documents from the top shelves. In the morning I would usually take about 12 boxes of documents down to the warehouse and bring back about five or six boxes and in the afternoon would not usually take any boxes but bring back about 6-7 boxes. Occasionally I went down at other times for urgent matters. I would have to carry at least half a dozen boxes weighing over 20 kilograms a day. When I returned from the warehouse I would load the boxes from the station wagon onto a flat trolley and then use the trolley to distribute the boxes around the various offices.”
21 In cross-examination of plaintiff agreed that his work as a fitter and turner when he was younger had been more physically demanding, although he rejected any suggestion that it involved heavy lifting because, as he said, a physical device such as a crane was available for this purpose.
22 According to the evidence given by the plaintiff at hearing, the doctor initially prescribed pain killing medication. He took no time off work and continued working on modified duties with restrictions on bending and lifting.
23 Despite his assertion to the contrary in his affidavit the plaintiff continued to consult Dr Sweeney, who on 17 September 2001 ordered a CT scan. This was said to demonstrate significant degeneration of the L5-S1 facet joint without revealing definite disc pathology or nerve root compression.
24 However, by late October 2001 the plaintiff commenced consulting his own general practitioner, Dr Baglar to whom he reported worsening back pain. Amongst other things, this doctor noted that the plaintiff was in pain, that there was tenderness in his lumbosacral joints, that his straight leg raising, particularly on the left side was reduced and that the plaintiff complained of pins and needles in his left leg.
25 I was told that the plaintiff was off work between 22 October 2001 and 17 December 2001 on which date he said that he resumed light duties working four hours per day, three days per week.
26 When strong analgesic medication prescribed by Dr Baglar failed to deliver lasting relief from pain the general practitioner referred the plaintiff to orthopaedic surgeon Mr Owen, on whom he attended for treatment between 12 November 2001 and 6 November 2003, although at his then solicitors' request this surgeon subsequently re-examined the plaintiff on 14 October 2004.
27 Based on his clinical findings and the radiological evidence of degenerative disease in the plaintiff's lumbar spine, Mr Owen recommended both facet joint injections and physiotherapy. However, notwithstanding some relief from injections administered on 11 January 2002 when in March 2002 the plaintiff continued to report what Mr Owen described as "discogenic pain" this surgeon arranged for a MRI scan which on 3 April 2002 was said by the radiologist to show "multi-level mild lumbar degenerative disc disease and degenerative L5-
S1 facet joint. Otherwise unremarkable."
28 When he reviewed the plaintiff on 22 April 2002, the last date on which the plaintiff attended for treatment, Mr Owen recommended referral to Consultant in Rehabilitation and Pain Medicine, Dr Thomas who following his examination on 27 May 2002 referred the plaintiff to a rehabilitation program at the Victorian Rehabilitation Centre. He did this he said to gain a better understanding of the plaintiff's functional capacity and to develop a return to work strategy.
29 From the history described it seems that the plaintiff attended and completed this program during 2003. In any event, Dr Thomas said that he did not re- examine the plaintiff.
30 Nevertheless, as is evident from the material before me, until 17 December 2001 when the plaintiff resumed light duties on limited hours there were earlier periods during which he unsuccessfully attempted to return to modified duties. However, subsequent to his return to work and despite treatment for ongoing pain the plaintiff apparently continued to perform light duties for 6 hours per day, 4 days per week until 23 August 2004. This was when the defendant indicated to the plaintiff that it had no further light duties to offer him.
31 In the period prior to termination of the plaintiff's employment, the doctors I have already mentioned either treated the plaintiff or, as in the case of Mr O'Brien, Mr Francis, and Mr Jones they conducted medicolegal examinations on behalf of the insurer.
32 Prior to the termination of his employment the plaintiff's treating doctors diagnosed asymptomatic degenerative disease in the plaintiff's lumbar spine, with the onset of mechanical back pain following the work-related incident on 7 September 2001. All of these doctors deemed the plaintiff unfit to undertake his pre-injury employment, that is he was restricted by injury-related impairment of his back to modified duties and this was an ongoing state of affairs. Indeed, based on his clinical experience, in 2002 Mr Owen thought it unlikely that the plaintiff's symptomatic degenerative condition would fully recover. Neurosurgeon Mr Brownbill's own clinical experience allowed him to express a similar view in his report addressed to the plaintiff’s solicitors following his assessment in March 2010.
33 I have already mentioned in passing Mr O'Brien's only report following his examination of the plaintiff on 13 December 2001. At that time, amongst other things, the plaintiff apparently reported ongoing back pain aggravated by activity. In addition to this he reported pain over the anterior aspect of his left knee, the latter specifically aggravated by weight bearing, which the plaintiff said caused the left-sided limp observed during examination by this surgeon.
34 Despite some improvement with conservative treatment and the CT scan result (which he interpreted as indicating discs that were "remarkably normal"), based on his clinical findings Mr O'Brien concluded that the plaintiff was suffering from discogenic pain to which his employment was a significant contributing factor.
35 Mr Francis examined the plaintiff once on 1 February 2002. He too obtained a history of severe backpain and numbness and pins and needles in the plaintiff left knee, the latter having improved by the date of the examination, although the plaintiff said that his knee pain at times forced him to limp.
36 Mr Francis thought that the plaintiff's work had materially contributed to a soft tissue injury to the plaintiff lower lumbar region which he thought would not give rise to "any permanent impairment materially contributed to by injury."
37 I note that orthopaedic surgeon, Mr Davie who in 2009 examined the plaintiff on behalf of the defendant also diagnosed a soft tissue injury, although he nevertheless considered that the injury may have included aggravation of asymptomatic pre-existing disc degeneration in the plaintiff's lumbar spine. However, in 2009 Mr Davie appears to have concluded that the plaintiff’s symptoms of low back pain and occasional pain into his right knee were probably due to the degenerative disease process rather than an aggravation injury suffered in the course of his employment with the defendant.
38 In its submissions the defendant, I think correctly in all the circumstances, did not rely on any diagnosis of soft tissue injury, although it clearly sought to establish an absence of evidence of significant pathology associated with the injury and from this the improbability of the plaintiff suffering more than mechanical low back pain with some referred leg pain. I will say more about this issue in my discussion of the radiological evidence and the more recent medical material in due course.
39 Mr Jones examined the plaintiff on three occasions between 27 June 2002 and 10 December 2003. He was of the opinion that the minor degenerative changes revealed on the MRI study were within normal limits for the plaintiff's age. Moreover, whilst Mr Jones appears to have accepted that in association with two incidents at work (as I have already noted he too obtained a history suggesting that the incident involving the video-cassette occurred on a later date) the plaintiff suffered "a degree" of "mechanical back pain of discogenic origin". He nevertheless also concluded that this was "being somewhat
exaggerated".
40 The defendant's Court Book contains a certificate of opinion submitted by a Medical Panel on 11 May 2004. This confirms that prior to the termination of his employment there was a dispute as to whether the plaintiff had the capacity to work longer hours.
41 As his reports reveal, Mr Jones always believed that the plaintiff's work capacity (albeit restricted to light duties), was greater than as certified by his general practitioner. Indeed, by December 2003 Mr Jones not only deemed the plaintiff capable of full-time light duties, he also concluded that the plaintiff's employment was no longer a significant contributing factor to the symptoms reported. Relevantly, this was not a conclusion reached by most of the other doctors who either treated or examined the plaintiff after he returned to light duties from 17 December 2001.
Treatment following the cessation of the plaintiff's employment
42 According to the plaintiff, he has continued to attend his treating general practitioner at least once a month and he is prescribed medication. Currently each day he takes two anti-inflammatory tablets, Voltaren and between six and 12 tablets of the painkilling medication, Panadeine as well as Nexium, a medication to treat side-effects caused by his other medication.
43 As far as I can tell from the evidence, including the plaintiff's responses in cross-examination, the only other active treatment received by him between August 2004 and 2009 consisted of hydrotherapy and physiotherapy which he said provided temporary relief. However, once WorkCover stopped paying, these treatments ceased in 2007 and 2008 respectively.
44 As I have already mentioned in November 2004 at the request of his then solicitors the treating surgeon, Mr Owen re-examined the plaintiff. As he noted in his final report:
“…In spite of conservative treatment and the passage of time his pain hasn’t settled and had got to the point where he was unable to work. I think that his problem is degenerative disc disease. He has a reasonable association between a particular incident and the onset of his pain. Unfortunately, there isn’t any form of intervention that would help him from a therapeutic point of view. Theoretically to get him as fit as possible would diminish his pain but he has certainly been given every opportunity to do this and has not been capable of getting his pain under control. He is likely to remain much the same and I think his prognosis for returning to work is poor. Any form of standing or sitting is usually quite uncomfortable and it is hard to see any job that he could do. I think, therefore, he isn’t fit enough to return to his previous employment. He is certainly significantly restricted in his domestic, social and recreational activities because of his chronic low back pain.
The interesting question is whether this degenerative process was hastened by his work, or at least made symptomatic by his work, at a time premature to the natural onset of his condition, and I think that it is reasonable to accept that this is the case. He is a man who, on repeated examination, has not shown any non organic features to his examination and his GP is of the same opinion. Therefore I think it reasonable to take his level of incapacity at face value and I think that he is totally and permanently disabled for employment.”
45 In this case, the plaintiff also relied on the report of orthopaedic surgeon Mr Barrett, to whom he was referred by Dr Baglar in 2009. This referral appears to have coincided with the plaintiff's general practitioner’s recommendation that he seek further advice from the firm of solicitors by whom he is currently represented in this proceeding.
46 Be that as it may, Mr Barrett examined the plaintiff on 26 May 2009 and reported to these solicitors on 19 June 2009. As I have already noted, contrary to the earlier reports of symptoms in the plaintiff’s left leg, Mr Barrett was one of a number of specialists who appear to have been told by the plaintiff that shortly after the incident he experienced pain radiating into his right thigh. For instance, in 2009 he was informed that the plaintiff’s back and right thigh pain were not improving.
47 On 12 June 2009 a repeat MRI scan of the plaintiff's lumbar spine was performed at Mr Barrett's instigation. The clinical matters to which the radiologist had regarded included a work injury in September 2001, lower back pain and right-sided sciatica and the MRI scan in April 2002 which was said to show "extensive disc abnormalities particularly at L2/3".
48 In his report, somewhat controversially as it turned out, the radiologist reported his conclusions as follows:
“1. Mild-moderate generalised lumbar disc degenerative change maximal L2/3
and L4/5.2. Mild central canal stenosis L4/L5 with completely adequate central canal elsewhere. 3. Moderate foraminal compromise left L4. Otherwise adequate neural foramina. 4. The changes described above have only progressed minimally since 2002 with respect to the spinal canal and most of the disc changes. The left foraminal compromise has definitely progressed slightly.”
49 Contrary to the radiologist's findings, having studied and compared the radiological film with the MRI film ordered by him in June 2009, amongst other things, Mr Barrett concluded that the most recent study:
"…reveal considerable deterioration in the condition of all lumbar discs, the L5-S1 disc now clearly disrupted and the other lumbar discs are narrowed with increased disc bulges particularly at the L4-5 level where the disc is pushing in deeply into the intervertebral canals, mainly on the left side. In addition there is some moderate posterior facet joint arthritic changes at the L4-5 disc level, causing some mild canal stenosis at this level."
50 In summary, Mr Barrett opined that the development of widespread disruptions of the plaintiff's lumbar discs and the deterioration in the condition of these discs were clearly related to the physical work carried out during the plaintiff's employment with the defendant over many years and, that what had been an asymptomatic condition was seriously aggravated by the incident in September 2001.
51 He also concluded that the plaintiff was "profoundly disabled" by his condition which produced lower back and discogenic pain radiating into the plaintiff's right thigh region without clear sciatica symptoms or nerve root irritation.
52 As I have already noted, neurosurgeon Mr Brownbill, examined the plaintiff on 23 March 2010. Judging from his report he appears to have also considered at least the earliest reports of Mr Owen and Mr Jones and the reports of Mr Barrett and Mr Davie.
53 Whilst it is possible that he referred to the results of the earlier radiological investigations, Mr Brownbill clearly indicated that he had reviewed the MRI scan of 12 June 2009.
54 Mr Brownbill concluded that the incident described by the plaintiff had aggravated pre-existing, asymptomatic lumbar spine degenerative changes with likely intervertebral disc derangement. However, he saw no evidence of radiculopathy. Coming from the only neurosurgeon involved in this application I have given particular weight to Mr Brownbill's opinion in this regard. In any event, I note that no other medicolegal specialist has pressed a contrary view. In these circumstances any current opinion that the symptoms reported by the plaintiff in either his right or left legs is discogenic in origin is less tenable.
55 However, in making this finding I have not excluded the likelihood that any complaint of referred leg pain is genuine and that it is related to the degenerative disease in the structures of the plaintiff's lower back, rendered symptomatic by the incident in September 2001. Orthopaedic surgeon Mr Hunt, whose report I discuss next, obviously felt that this could explain the occasional symptoms reported in the plaintiff's legs. Moreover, most of the specialists have accepted that the plaintiff’s symptoms are consistent with both the clinical findings and the radiological evidence.
56 Mr Hunt examined the plaintiff at the request of his solicitors on 7 May 2010. He diagnosed symptomatic lumbar spondylosis with mechanical lower back pain caused by aggravation of pre-existing facet joint arthritis and the development of "internal disc disruption as per the documented progression
from the 2002 to 2009 lumbar spine MRI scans."
57 General Surgeon, Mr Flanc was the last specialist to examine the plaintiff at the request of his solicitors. He did so on 18 May 2010. At the time the plaintiff reported constant but less severe lower back pain than that suffered whilst still employed and occasional pain radiating down his left thigh as far as his knee.
58 Mr Flanc who appears to have had access to the radiological material and a range of earlier reports from both sides concluded that the incident described by the plaintiff had aggravated an asymptomatic pre-existing degenerative condition. He also concluded that it was likely that the plaintiff's current pain was still significantly related to the incident of aggravation, a view he correctly noted was shared by Mr Barrett and by Mr Brownbill.
59 I have already mentioned in passing the reports of the consultant radiologist, Dr Kam, the first of which was based on his analysis of the reports of the radiologists rather than a review of the relevant film. In his first report, amongst other things, Dr Kam rejected Mr Barrett's opinion that the film evidenced considerable deterioration in the condition of all lumbar discs and that the L5-S1 disc was clearly disrupted in favour of the view expressed by radiologist in 2009 where he said that the MRI study was suggestive of only minimal disease progression.
60 In their reports, both Mr Hunt and Mr Flanc were concerned, (with good cause), by the failure of the consultant radiologist to view and compare the film before offering his opinion. However, after viewing the film in June 2010 whilst Dr Kam did not directly acknowledge the accuracy of Mr Barrett's assessment of the film he nevertheless appeared to accept that comparison of the films evidenced disease progression as well as evidencing an increased posterior disc protrusion at the L5/S1 level. In these circumstances, in so far as it relates to any comparison between and interpretation of particularly the MRI studies, I have preferred the evidence of Mr Barrett, whose opinion was strongly supported by Mr Hunt who also viewed the film.
The pain and suffering consequences alleged
61 These were generally set out in paragraphs 9 to 18 inclusive of the plaintiff's affidavit with some explanation provided through cross-examination and re- examination. For instance, in paragraphs 9, 10 and 11 as follows:
“9. I have sharp pain in my lower back all the time. It spreads across my lower back but when it is worse it seems to shoot up my back on either side. This pain occurs about twice a day and lasts for about thirty minutes. When it occurs I find it best to lie on the floor on my side. When I get this pain standing up it can take my breath away. 10. Several times a day the pain in my back seems to spread into my left buttock and also the front of my left upper leg above the knee. This happens most often when I am sitting. 11. My back pain is worse with any prolonged sitting. If I sit for more than about 15-30 minutes my back starts to become increasingly uncomfortable and I want to move around. I usually sit on the edge of the seat on my side so I can rest the right side of my back on any arm rest. At home I frequently sit on a kitchen chair and sit on it side on and rest the right side of my back against the back of the chair. This seems to be the most comfortable position for me. I use my arms to get up and down. I do not lean back as this seems to increase my discomfort.”
62 In cross-examination, the plaintiff explained that his pain eased on laying down, that it could be controlled "for a while" by medication and that some days were worse than others. Moreover, the plaintiff said that his current problems are low back pain and referred pain into his left leg, although he subsequently contradicted this evidence after he was told that following examinations on 26 May 2009 and 29 July 2009 orthopaedic surgeons, Mr Barrett and Mr Davie both recorded complaints of low back pain as well as pain radiating into the plaintiff's right leg and/or knee.
63 In summary, the plaintiff's response to this issue on cross-examination was to acknowledge that in the three to four years since the termination of his employment his symptoms had changed such that he was now getting referred pain down his right leg, not his left leg, and that, whilst this was not the case when he described his problems for these two specialists, he nonetheless maintained that his left leg was "still sore". In my discussion of medicolegal evidence I have already explained my reasons for accepting that the complaints of leg pain are probably genuine and are probably linked to the plaintiff's lumbar spine condition.
64 As to his activities the plaintiff said that he walked about 30 minutes twice every day, although he needed to take a break to ease back pain; that he was most comfortable lying on his side and when his back pain is worse he often lies on the carpet at home; that he usually takes extra Panadeine when he wakes up at night with back pain; that his back is stiff in the mornings, (although this is eased by having a shower); that he has to be careful drying himself, putting on socks and doing up his shoelaces; that he only drives about 30 minutes at a time because of increased back pain and he previously enjoyed gardening which included looking after flowerbeds, a vegetable garden, a fernery, palm trees, two fig trees, three lemon trees, two plum trees and an apricot tree as well as a grapevine for eating grapes; that he can no longer dig, prune or weed, although he does try to mow his lawn for about 15 minutes before he takes a break.
65 Socially the plaintiff said that he used to travel at least twice a year to Brisbane and sometimes to Sydney to meet and socialise with friends. In particular, the plaintiff said that he and his friends travelled to a farm in northern New South Wales where they hunted whilst he took photos, walked in the bush and had an occasional beer. According to the plaintiff, and this was not altered by any of his responses in cross-examination or re- examination, he no longer socialises and, despite further invitations to attend, he has not taken this trip because the travel would be too uncomfortable. In fact he said that he now travels to Brisbane and Sydney every couple of years by plane only when necessary, for example when he is required to attend an engagement party.
66 In amongst the activities the plaintiff said were precluded by impairment of his lower back the plaintiff mentioned swimming, playing squash, jet skiing, the latter when he was in Queensland, attending the Cypriot club in Carlton each month for a meal, live music and to party with friends and Greek dancing. Nevertheless, in cross-examination the plaintiff agreed that at the age of 57 his squash days had ended after his local squash court closed in 1997 and that he had not jet skiied in the couple of years before 2001.
67 The plaintiff also said that he is a member of his local Greek Orthodox Church, that previously he attended every Sunday and after the service stayed with his wife for coffee and often for a meal. However, because of problems with prolonged sitting he doesn't attend church every Sunday. If he attends the plaintiff said that he stands at the back of the church for only about 30 minutes and if he stays after the service this is only on special occasions for no more than about an hour.
Findings
68 In this application there is evidence of pre-existing degenerative changes in the plaintiff's lumbar spine. To the extent that this is directly addressed, or can be inferred from the reports made, the evidence of the treating and medicolegal specialists (including the general practitioner) has satisfied me that the plaintiff suffered compensable injury as a result of the incident on 7 September 2001; that is aggravation of pre-existing asymptomatic degenerative changes (spondylosis) in his lumbar spine. His employment with the defendant was a significant contributing factor to this injury and injury- related impairment continues to make a material contribution to the pain and suffering consequence I have already summarised. This consequence is serious because it is permanent (that is it is likely to last into the foreseeable future) and when judged by comparison with other cases in the range of possible impairments of the lumbar spine it is "very considerable".
Orders 69
In these circumstances, I propose to make an order granting leave to the plaintiff to commence proceedings against the defendant in respect of pain and suffering damages only. I will hear from the parties as to the making of appropriate orders.
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