Papas v Transport Accident Commission
[2011] VCC 1499
•15 November 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04690
| ANTHONY PAPAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 October 2011 |
| DATE OF JUDGMENT: | 15 November 2011 |
| CASE MAY BE CITED AS: | Papas v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1499 |
REASONS FOR JUDGMENT
---
Catchwords: TRANSPORT ACCIDENT –Transport Accident Act 1986, Section 93 – serious injury – impairment to the lumbar spine.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J Keogh SC with | Zaparas Lawyers |
| Ms A Wood | ||
| For the Defendant | Mr J Ruskin QC with | Solicitor for the Transport |
| Ms R N Annesley | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident (“the accident”) which occurred on 13 April 2009 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to (a) relied upon by the plaintiff is the spine, particularly the lumbar spine.
4 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
6 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
7 The plaintiff relied on two affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
8 The plaintiff is presently aged sixty, having been born in May 1951 in Greece. He completed Grade 6 and then migrated to Australia, where he attended Fitzroy High School and finished Year 12.
9 The plaintiff then completed a Certificate in Draftsmanship at RMIT. He worked in an architect’s office for about three or four years, during which time he decided to do a Diploma in Architecture.
10 The plaintiff left the architect’s office and obtained work with Coles Myer in its design office, designing supermarkets using a drawing board, working there for about three years.
11 The plaintiff then worked at The Royal Melbourne Hospital (“the Hospital”) in the Building and Engineering Services Department, initially drawing alteration and renovation plans. By the time he finished in that job fifteen years later, he had reached the position of Assistant Project Manager.
12 During his entire employment at the Hospital, the plaintiff had no accidents or suffered any injuries, nor did he have any problems with either his back or neck.
13 In cross-examination, the plaintiff agreed he was a qualified Draftsman and obtained that qualification at about the age of twenty. He agreed he worked for roughly four years with Morris & Partners, an architect’s office, before he moved to Coles. He carried out drawings by hand.
14 The plaintiff was very good at his job at the Hospital and reached the position of Assistant Project Manager. He enjoyed his job very much. His work involved alterations and layouts of surgeries and rooms and discussing such issues with the medical practitioners involved. He agreed that the position of Assistant Project Manager was the pinnacle and he was earning good money at that time, in the range of $50,000.
15 During the latter period of his employment at the Hospital, funding was cut and the plaintiff was doing the work of two and a half men. He was required to work very long and very stressful hours involving weekends, and sometimes his work involved spending time away from his family.
16 In about 1994, the plaintiff left Hospital and went to work for Salmat Media Force (“Salmat”). He initially worked only two to three hours a day and he later became a full time employee working as a delivery driver.
17 At Salmat, the plaintiff was required to attend the warehouse where his truck was loaded with advertising material, usually for supermarkets, and he then delivered the material to walkers who dispersed it throughout the suburbs.
18 In his second affidavit, the plaintiff gave further details as to his employment with Salmat. His job involved lifting by hand bundles of brochures which could weigh up to fifteen kilograms. He had to unload them from the truck by lifting each bundle individually from above waist height on the truck and then place them on a trolley on ground level. He had to complete about forty of these deliveries a day.
19 Twice a day the plaintiff was required to pick up leftover brochures by hand and load them onto a truck. His job also involved hoisting his body weight in and out of the truck repetitively to get in and out. He was often be required to drive long distances to complete the deliveries, sometimes as far as Sunbury and Gisborne. In order to meet his deadlines, he was unable to take many breaks to stop and stretch whilst doing deliveries. He enjoyed this job immensely and planned to continue working as a delivery driver until he reached retirement age.
20 In cross examination, the plaintiff explained that he enjoyed working at Salmat because he was not “locked up” in the office. He could work at his leisure at times. He agreed the work was very heavy. The bundles of newspapers varied from three to thirteen or fourteen kilograms in weight.
21 Prior to the said date, the plaintiff made contributions to his superannuation fund through a salary sacrificing scheme which was an allowable deduction. His taxable gross income was artificially reduced by the amount of the superannuation contribution but it nonetheless formed part of his gross income.
Earnings and Tax Figures
Earnings pre
Financial Year Turnover Superannuation Deductions
2006 $130,348 $70,810 2007 $128,021 $68,077 2008 $142,113 $85,553 2009 $104,745 $56,960
22 The plaintiff deposed that between 1994 and the said date, the only real incident he had involving his back was in early 2002, when he suffered a twinge whilst unloading bundles of advertising material.
23 The plaintiff reported this incident to his employer and consulted his doctor, Dr Davaris. The plaintiff believed he attended a physiotherapist two or three times only and did not recall any other treatment, such as medication or hydrotherapy. The back pain lasted for about a day and dissipated without the plaintiff taking any time off work and then he carried out his normal duties.
24 In cross examination, the plaintiff could not recall falling and injuring his back in November 1993 as set out in his medical file. He could not recall an ultrasound being undertaken at that stage.
25 In cross examination, the plaintiff confirmed that in 2002, whilst unloading at work, he felt a twinge in his back and went to his doctor. He felt a very sharp pain that dropped him to his knees. He agreed it was possible that this was one of the risks of a job involving heavy lifting. He might have missed one day of work after that incident. He had physiotherapy two or three times and it fixed the problem and the pain went.
26 The plaintiff deposed that from 2002 until the said date, the only other incident where he suffered injury was when he cut his arm at work. He did not take any time off or see his general practitioner. He attended hospital, where he received stitches and then continued working. Otherwise, the plaintiff was fit and healthy before the said date.
27 In cross examination, the plaintiff could not recall injuring his left shoulder in 2006 but then said he may have done so pushing a pallet but he did not remember taking any time off work.
28 On the said date, the plaintiff was carrying a full load on his truck when it was hit from behind and pushed violently onto the concrete kerb on the side of the road (“the accident”).
29 The plaintiff received a severe jolt and was thrown around quite badly in the cabin of the truck. He got out of the truck and collapsed on the embankment. He was told to lie flat on his back until an ambulance attended. At that time, he could feel a dull pain in his back and his legs felt weak.
30 The plaintiff did not go to hospital in an ambulance despite requests by ambulance officers for him to do so. The tow truck driver who attended the scene took the plaintiff back to work, where the plaintiff waited for his truck to be unloaded. At that stage, the plaintiff could feel aches and pains in his lower back going down his left leg and a feeling of numbness in his left arm.
31 By early afternoon, the pain in the plaintiff’s lower back was becoming more severe and he began to feel early signs of numbness and pain in his upper back and neck. His children called an ambulance and he was taken to The Alfred Hospital, by which time his back pain had become quite severe.
32 The plaintiff was kept in hospital for observation and a CT scan was carried out. He was given a neck brace and prescribed painkillers but the pain became more severe.
33 The plaintiff remained at home over the next couple of days and on 17 April 2009, he was sent by his employer to Dr Court, who prescribed medication and referred him for physiotherapy. In cross examination, the plaintiff said he could have seen Dr Court about ten times after the accident over some months.
34 In June 2009, Dr Court referred the plaintiff to Mr Brian Barrett, orthopaedic surgeon, who organised an MRI scan. The plaintiff saw Mr Barrett again in early July 2009.
35 In early July 2009, prior to seeing Mr Barrett, Nabenet, a vocational agency, arranged an assessment for the purpose of the plaintiff returning to work. It recommended a return to work on light duties. However, when the plaintiff returned to work, his employer did not allow him to commence work as it had received a report from Mr Barrett, who thought the plaintiff did not have a work capacity. Thus the plaintiff remained on payments.
36 In cross examination, the plaintiff said he asked Dr Court if he could see an orthopaedic surgeon for an MRI scan because of the pain in his back. The plaintiff suggested Mr Barrett from a list of local doctors on the internet.
37 In 2009, the plaintiff ceased seeing Dr Court and he returned to his general practitioner, Dr Davaris.
38 Since that time, Dr Davaris has prescribed medication and instructed the plaintiff to do physiotherapy, which is helpful even if only on a temporary basis.
39 In cross examination, the plaintiff could recall telling medico-legal examiner, Dr Bowles, that his condition had worsened when CGU cut back his physiotherapy and the plaintiff rationed out the funded treatment. Since that time, the plaintiff has attended physiotherapy weekly because he could not stand the pain any longer.
40 Dr Davaris referred the plaintiff to Epworth Rehabilitation Unit (“the Unit”) which he attended from September to December 2009. However, the plaintiff found after several visits he was suffering more pain carrying out the activities suggested by the Unit, thus Dr Davaris advised the plaintiff to cease attending the Unit.
41 In cross examination, the plaintiff explained the problems he had at the Unit. On one occasion he had difficulty lifting his leg on examination and the staff laughed at him. He also was upset when the Unit staff explained to him that the pain was really in his head. On one occasion, while he was trying to get dressed, he fell backwards, screaming in pain. It was then agreed that the plaintiff could do hydrotherapy, a request which had previously been denied. However, the plaintiff left the Unit as he thought his condition would get worse if he continued with the program.
42 As of September 2010, the plaintiff was having hydrotherapy, which he found helpful and which he paid for himself.
43 The plaintiff currently takes Tramal, 500 milligrams, and Tramadol, 100 milligrams, for his back pain; Pristiq, 50 milligrams, for depression; Coversyl, 5 milligrams for high blood pressure; and Nexium, 40 milligrams, to assist with upper gastric problems caused by the painkillers. He also takes Panadol daily.
Current Condition
44 The pain in the plaintiff’s back radiates to his left buttock and down his left leg to his toes. His leg feels numb all the time, and as if it has lost strength.
45 The plaintiff gets pins and needles to his left buttock and down through his leg into the left foot and into his toes. His left arm feels weak, although not painful, and he feels he has lost strength in his left hand when holding things.
46 The plaintiff has great difficulty walking long distances and has developed a limp on the left side and he has to cautiously climb stairs. He occasionally walks the dog but only for short distances and even that is too difficult, because the dog pulls on the lead and this aggravates the plaintiff’s back pain. The plaintiff walks short distances on a daily basis which he finds helpful in temporarily relieving his pain.
47 When the plaintiff drives, he finds he must stop after a short period of time, get out and stretch his back. He has to stop regularly when driving long distances.
48 The plaintiff’s back pain has become severe over time and he finds sitting for long periods or standing causes unbearable pain. He must constantly and regularly get up and move about, otherwise his back stiffens and he finds any movements he attempts to do thereafter severely debilitating.
49 In cross examination, the plaintiff agreed that his condition was getting worse, even though he was not working, and said maybe it was because he was getting older.
50 The plaintiff agreed that he had told doctors about having neck pain and that his neck felt stiff and was not the same on the right as on the left.
51 The plaintiff’s neck becomes extremely painful at times and he has great difficulty in moving freely or liberally from side to side or twisting. These movements aggravate his pain.
52 The plaintiff gets pain depending on what he does and therefore he is very careful when he twists or turns his back or neck and if the pain becomes too severe he has to attend physiotherapy.
53 The plaintiff agreed he had been depressed and anxious since the accident but had not been treated by a psychiatrist although he had been given Pristiq tablets for depression by Dr Davaris to help him sleep.
Activities
54 Prior to the accident, the plaintiff was passionate about fishing and went to his holiday house in Apollo Bay at least twice a month to do so. He enjoyed surf fishing and had over fifteen surf rods at home. In early 2009, he purchased three new rods which were very expensive.
55 Since the accident, the plaintiff has not been able to go fishing at all as using his strength to cast and reel in a fish would place too much strain on his back. Fishing used to be an important part of the plaintiff’s life and it depresses and upsets him that he has lost his main hobby.
56 The plaintiff now goes to Apollo Bay every few weeks to pay the gardener, a job which he did himself before the accident. For about five weeks, the plaintiff goes to Apollo Bay with his family for a Christmas holiday.
57 In cross examination, the plaintiff said that whilst he can still drive to Apollo Bay and has recently bought a new car, he cannot drive continuously for three hours and has to stop anywhere between six to eight times when the pain gets too much. He did not think he had driven to Apollo Bay stopping only two or three times on the way.
58 Before the accident, the plaintiff was very active and he also enjoyed pursuits, such as snorkelling, game hunting, scuba diving and riding his bike. He has been unable to do any of those physical activities since the accident. He has become unfit and overweight and that change in his lifestyle has made him depressed and unhappy.
59 Before the accident, the plaintiff performed all of the gardening and household maintenance for his family. Since the accident, he has tried to keep himself busy by doing some gardening but he has had to pay people to do the more strenuous tasks. Further he purchased some equipment to assist him pruning. He attempted to use that equipment once or twice but he found the moderate force required to operate it caused too much back pain for him to continue. His wife now carries out this task.
60 The plaintiff is the owner of several guns that he used to shoot before the accident, however he has not been shooting since. Prior to the accident, he went hunting three or four times a year. He continues to renew his shooting licence because he needs a valid licence in order to legally store his guns.
61 In cross examination, the plaintiff was asked about his application for a firearms licence and agreed that he stated on a licence application form that he stated he had not been treated for any psychiatric depression, stress or emotional problems. The plaintiff explained that he was given Pristiq to help him sleep.
62 It was suggested to the plaintiff that his condition was not so bad that he could not shoot as he denied on the same form having a physical disability which precluded him from obtaining a licence. The plaintiff explained that he did not want to lose his licence so he renewed it.
63 The plaintiff said he did not think he could use firearms in his current position for hunting but he thought he could shoot at a range although he had not tried. Shooting at a range did not involve walking up and down hills.
64 Prior to the accident, the plaintiff regularly went bike riding with his wife, particularly on weekends and sometimes during the week in the afternoons, riding from Camberwell to Southbank. He enjoyed that activity immensely. He also regularly swam two or three times a week.
65 Prior to the accident, the plaintiff and his wife regularly socialised, going to Greek dances and he was a member of the Greek Social Club. He was one of the founding members of the Central Pontian Association of Victoria some thirty years ago and although he is still a member, he does not attend the social functions because it is far too difficult.
Current Work Capacity
66 Due to his back injury, the plaintiff would no longer be able to perform the heavy lifting, repetitive bending or sitting for prolonged periods that his job at Salmat required.
67 The plaintiff believes he is so disabled that he cannot perform work even with light duties. His disability, together with the severity of pain and the medication he takes makes it very difficult for him to find any reasonable work he is able to do.
68 The plaintiff has not done any paid work since the accident.
69 The plaintiff denied Mr Barrett gave him any advice or suggestions about getting back to work, nor did he tell him on later examinations that he was disappointed the plaintiff had not returned to work.
70 The plaintiff agreed he was interested in getting back to work and he advised Dr Court and Mr Barrett accordingly.
71 The plaintiff denied Mr Barrett had encouraged him to return to the workforce to lighter work within a few months of the incident. Mr Barrett never said to the plaintiff in 2011 that he was surprised the plaintiff had not returned to work. Mr Barrett had asked the plaintiff if he had returned to work and the plaintiff told him that he could not. He told Mr Barrett that he was in constant pain and physically he could not do lighter type work. He could not do any work where he would need to sit down and concentrate or stand up and walk around and pick up things.
72 The plaintiff did not know whether his neck would give him trouble doing his previous heavy work because he had not tried and he was not a doctor.
73 The plaintiff would like to drive his truck but does not think he can. He is not the sort of person that if he cannot drive his truck, he is not going to do anything.
74 The plaintiff did not know whether he had renewed his heavy vehicle/bus licence before or after the accident.
75 The plaintiff agreed a number of alternative jobs had been suggested to him but he explained that his drafting experience was outdated. He would be prepared to try anything but he was in constant pain and it would be difficult to try and concentrate and do drafting work. He denied he had not tried this type of work because he lacked confidence and said he could not do it because of his pain. He does not want to go back to an office environment because he did not think he could handle it physically. He explained that draftsman’s work was not only sitting down drawing. It required attending sites, measuring and climbing up ladders, and physically it was very hard. He had not done that sort of work for sixteen years and would not know where to start again; he would not know the regulations. Retraining is not as easy as suggested, “it is nice to say it in here but [he] knows what it is like”.
76 The plaintiff was cross examined about his examination with Dr Bowles in mid 2011. He could not recall sighing when seeing Dr Bowles but he agreed he normally walked slowly.
77 The plaintiff disagreed that he did not co-operate fully with Dr Bowles on examination when asked to straight leg raise. The plaintiff denied that he was able to extend his legs as far as Dr Bowles claimed.
78 The plaintiff denied the calluses or bumps on his hands, which I viewed, resulted from recent work. The plaintiff thought they were his natural hands as far as he knew and when he was working his wife would not let him touch her and his hands been like that since the accident.
The Plaintiff’s Medical Evidence
79 The plaintiff attended The Alfred Emergency Department on 13 April 2009, at which time musculoskeletal injury to the chest and back pain was diagnosed and a CT scan was carried out.
80 In his report dated 13 June 2009, Dr Court set out that the plaintiff was referred by his employer and first seen on 17 April 2009, having had an accident the previous week. It was noted that the plaintiff had seen his general practitioner before attending Dr Court.
81 On examination, the plaintiff’s main problem was low back pain, worse on the left, with some pain in the back of the left thigh and calf, and some left knee pain, and mild pain in the left hand. The plaintiff had tenderness in the lumbar region, and limited straight leg raising. His pain was unchanged in the last two days, but his left leg tingling had improved.
82 The plaintiff was referred for physiotherapy to ProActive Physiotherapy in April 2009, and advised to trial limited clerical duties on restricted hours the following week. Dr Court noted apparently appropriate duties were not available, and the plaintiff remained off work.
83 Dr Court requested x-rays which showed some wear and tear but no evidence of an acute injury.
84 Dr Court noted the plaintiff’s symptoms fluctuated over the following weeks, but overall he had significant ongoing pain. He last saw the plaintiff on 1 June 2009, at which time the plaintiff had not returned to work.
85 At that stage, Dr Court thought if there were no clerical duties available the plaintiff may be able to trial his one delivery run with three stops, which was “lighter” than other runs.
86 Dr Court noted the plaintiff was also referred to a rehabilitation specialist.
87 In Dr Court’s view, the injury was essentially work related, and there may be a small component of exacerbation of underlying degenerative disease of the lumbar spine.
88 Dr Court diagnosed soft tissue injuries to the lower back with some evidence of degenerative disease of the lumbar spine on imaging. He then thought the plaintiff may require some ongoing analgesia and physiotherapy, and he considered the plaintiff’s prognosis was unknown.
89 Mr Brian Barrett, orthopaedic surgeon, first saw the plaintiff in June, and later July 2009 at the request of Dr Court.
90 The plaintiff told him of a pinched nerve in 2002, settling after a few days.
91 During the first examination, the plaintiff stood in slight forward flexion. His lumbar movements remained very limited, producing low back pain radiating to the left buttock. There was mild lumbar tenderness.
92 Neurological examination of the lower limbs revealed normal power, and the plaintiff could walk on his tiptoes and heels. Sensory testing revealed some mild depression of sensation in the left outer calf corresponding to the left L5 dermatome region.
93 Mr Barrett noted the CT scans of the cervical and lumbar spine taken in April 2009.
94 On examination in July 2009, the plaintiff was still experiencing considerable pain, mainly in his lumbar spinal region and radiating into his groin, left lateral thigh, and intermittently down the left ankle and foot regions.
95 Whilst the plaintiff’s neck appeared to be relatively free of serious injury, Mr Barrett thought the plaintiff’s lumbar spinal symptoms continued quite significantly, and the MRI showed changes in the lower three lumbar intervertebral discs consistent with his low back and left lower limb symptoms.
96 Mr Barrett advised the plaintiff to stay off work, and that any attempt to push him back to his heavy physical work was likely to aggravate rather than assist his ongoing symptoms.
97 At that stage, Mr Barrett expected some progress to occur with rest and conservative measures over the next few months. He diagnosed some disruption of lower intervertebral discs and aggravation of pre-existing osteoarthritic facet joint condition of the lumbar spine.
98 On 23 July 2009, Mr Barrett reported that he considered the plaintiff remained quite unfit to return to even light and limited work at that early post-injury stage, and attempts to push him back to work were likely to increase his symptoms.
99 At the request of the plaintiff’s solicitors, Mr Barrett re-examined the plaintiff in June 2011.
100 The plaintiff then continued to experience low back pain, and pain radiating to his left lower limb as far as his foot. He had intermittent left neck pain.
101 On examination, the plaintiff stood in moderate forward flexion. His lumbar movements were almost non-existent in any direction, and all appeared to cause pain in the lumbar region and towards the left buttock area. There was some moderate left buttock tenderness, and restriction of straight leg raising. Sensory testing revealed some altered sensation in the left S1 dermatome region.
102 Mr Barrett noted the up-to-date MRI of the cervical and lumbar spine carried out at Cabrini in July 2011, comparing them with those taken in July 2009. He thought in terms of the lumbar spine, the marked osteoarthritic changes in the posterior facet joints had not changed in appearance from the earlier MRI in July 2009.
103 Mr Barrett commented that he fully expected, after the earlier examinations, that with the passage of time, rest, and treatment, the plaintiff would have been able to return to some form of light physical work within a number of months of the accident.
104 However, on re-examination, he found the plaintiff had not made the expected improvement, although the plaintiff stated his neck symptoms were somewhat easier. The plaintiff appeared to retain rigid cervical and lumbar spines, allowing almost no movement of either segment of his spinal column.
105 Mr Barrett noted that was somewhat in contrast to the fact that clinically, as neurologically, the plaintiff had no clear evidence of nerve root irritation at either spinal level, and the recent MRI showed no significant alteration.
106 Diagnosis remained that of some disruption of the lower lumbar intervertebral discs to a relatively minor degree, and aggravation of a pre-existing osteoarthritic facet joint condition of the lower three lumbar levels.
107 Having noted his prognosis for improvement was relatively good in the past, Mr Barrett stated he was somewhat disappointed that the plaintiff’s spinal movements remained almost non existent in the face of not seriously disrupted cervical or lumbar discs.
108 Mr Barrett still considered the plaintiff unfit to return to full time truck driving, but was disappointed he had not managed to return to some lighter forms of work. He considered the plaintiff’s current rigidity of his spinal movements to be out of keeping with the clinical and radiological conditions applying in those areas. He did not consider any further treatment was likely to alter the current situation.
109 In a supplementary report of October 2011, Mr Barrett advised that he was sure the plaintiff would not be capable of performing delivery driver employment at that time.
110 The plaintiff was first seen at Clarinda Physiotherapy Clinic by Mr Friend on 23 April 2009, on referral from Dr Court.
111 On examination, all spinal active movements were significantly decreased in terms of range and quality of movement, and the same applied to straight leg raising.
112 Initial treatment comprised of gentle mobilising and traction which resulted in only a small improvement. Later, electrotherapy was included in the treatment regime, with the use of ultrasound using NSAIDS giving significant relief. Core stability exercises were then commenced with some benefit.
113 Mr Friend reported that by mid May 2009, the plaintiff improved to a point where he was considering a graduated return to work on an easy run. However, about that time, the plaintiff bent to pick up an object at home and felt a sharp pain in his back.
114 Mr Friend reported in September 2010 that he continued to treat the plaintiff. He then did not believe that the plaintiff would be able to return to his pre- injury duties. He believed the plaintiff would be able to do alternate duties that did not place any significant active or positional loads on his spine.
115 Mr Friend considered that the plaintiff would continue to benefit from physiotherapy as needed to relieve flare-ups, and that he would also benefit from exploring the possibility of facet joint injections or blocks, and thus attempt to break the nexus that currently existed between the plaintiff’s somatic symptoms and his psychological overlay.
116 Dr Davaris from the Burnley Street Medical Centre reported in December 2009 that the plaintiff complained of marked back pain with numbness into the thighs and left foot, and also neck pain and headache.
117 Recent examinations since the plaintiff’s rehabilitation attempt showed a stiff slow gait with restricted lumbar movement. Power was slightly reduced in the left lower limb compared to the right. His neck was slightly restricted in all movements.
118 Dr Davaris noted at that stage, the plaintiff also complained of difficulty sleeping, poor concentration, reduced libido, tearfulness, anxiety, and depression, which Dr Davaris thought were all a manifestation of the accident.
119 In October 2010, Dr Davaris reported there had been very little improvement in the plaintiff’s condition, and although he tried several different treatments there had only been very modest gains. He noted physiotherapy seemed to maintain the plaintiff at that restrictive level and that the plaintiff’s condition had several flare ups from very minimal movements.
120 At that stage, Dr Davaris thought it was obvious that the accident caused the plaintiff’s current condition, which was not stabilised to the point where he could enter into a rehabilitation program.
121 Dr Davaris was concerned, however, it was unlikely the plaintiff would ever be able to return to his previous duties. In his view, the plaintiff would need to continue with physiotherapy to cope with simple day to day living. He considered the plaintiff’s prognosis guarded, and believed he should continue with a conservative approach to treatment.
Medico-Legal Examinations
122 Professor Hadj, general surgeon, examined the plaintiff on 16 September 2009.
123 At that stage, the plaintiff complained of constant severe lower back pain, especially on the left, radiating to the ankle.
124 On examination of the back, there was tenderness present over the left side of the lumbar spine. Movements were severely restricted in all directions by pain. Movements reproduced the low back pain with radiation in the left buttock. There was no neurological defect of the lower limbs.
125 Professor Hadj thought the accident had caused aggravation of pre-existing degenerative disease in the lumbar spine. At that stage he did not think the plaintiff’s condition had stabilised, and surgery was not indicated. He considered the plaintiff unfit for his pre injury employment and unfit for alternatives. He considered conservative treatment was indicated.
126 In Professor Hadj’s view, one would have to wait a further six to nine months to ascertain how much recovery had been made.
127 Dr Nathar, psychiatrist, examined the plaintiff on 15 September 2011.
128 On examination, the plaintiff appeared to be in some physical discomfort. He was quite emotionally labile, and cried a number of times.
129 There was no particular speech abnormality. The plaintiff was mildly depressed and anxious. He had normal form and stream of thinking. He was quite obsessional in details, and tended to be over inclusive. He was not suicidal or delusional. He was preoccupied with his physical problems, a sense of having lost a lot of capabilities, and he seemed to be preoccupied with his grievance against the insurance company.
130 There were no real perceptual disorders such as hallucinations or illusions. The plaintiff was correctly orientated and had reasonable concentration, and at interview his memory function seemed to be intact. Insight was present, intelligence was within normal limits, and his judgment was unimpaired.
131 In Dr Nathar’s view, the plaintiff was suffering from a Chronic Adjustment Disorder with Anxious and Depressed Mood, and a moderate degree of Chronic Pain Syndrome where psychiatric factors were amplifying his physical problems. Dr Nathar thought there seemed no clear cut Post-Traumatic Stress Disorder, but there was an element of post-trauma anxiety type reaction at a mild degree present.
132 The plaintiff described difficulty handling his pain, and had become depressed and anxious and totally preoccupied with the pain, physical problems, and the consequences.
133 Dr Nathar noted the plaintiff seemed to be content taking Pristiq, which helped with sleep, and Dr Nathar doubted whether additional psychiatric or psychological treatment would assist. He thought the plaintiff’s prognosis was guarded, noting he had chronic stressor due to his continuing physical problems. Further, emotionally he had not been able to cope.
134 Dr Nathar believed the plaintiff was likely therefore to have long term permanent psychological deficits at around the current level, and his psychiatric injuries had stabilised.
135 Mr Charles Flanc, vascular and general surgeon, examined the plaintiff on 9 September 2011. At that time, the plaintiff’s low back pain was his most severe symptom. He felt pain over the front of his left knee which was intermittent, and also pain in his left ankle and at times over the back of his left thigh, and had constant tingling over the lateral part of the left foot. There was also neck pain which was much less severe.
136 On examination, there was no tenderness of the neck, and the plaintiff was reluctant to move it because of pain. The plaintiff was tender over the left sacroiliac joint. Flexion was severely restricted to 30 degrees by pain over that joint, and lateral flexion was restricted to 10 degrees on the right and 20 on the left.
137 Sensation to touch was slightly limited over the outer part of the left thigh and lower leg, but sensation over the left foot was normal.
138 In Mr Flanc’s view, the plaintiff sustained an aggravation of a degenerative condition of the lumbar spine as a result of the accident. The plaintiff continued to suffer severe low back pain, and his clinical examination revealed marked limitation of movement.
139 Mr Flanc thought it likely that the plaintiff’s symptoms were being influenced to some extent by non-organic factors; in others words, a Chronic Pain Syndrome. Notwithstanding that, he considered a significant component of the plaintiff’s back pain was still related to the accident aggravation.
140 Mr Flanc considered left leg symptoms suggested possible nerve root impingement, especially of the L5 nerve root. However, as Mr Brownbill also found, there was no objective neurological abnormality at the time of examination.
141 On balance, Mr Flanc thought the plaintiff had also sustained a whiplash injury of his neck. There was no evidence of any injury to his shoulders in the accident. He considered the plaintiff’s condition had stabilised.
142 In Mr Flanc’s opinion, the plaintiff would not be capable of returning to work as a truck driver, and it was most unlikely he would ever be able to resume this type of work or any heavy work involving repeated lifting or bending.
143 On the other hand, Mr Flanc thought the plaintiff should continue to be reviewed by a pain management specialist, because if his symptoms could be controlled to a greater extent, then he may have the potential to perform part time office duties, even as an architectural draftsman. Mr Flanc noted however a problem with this job would be the difficulty in drawing with his back flexed or with prolonged sitting.
144 On balance, Mr Flanc thought it more likely than not the plaintiff had no realistic work capacity, when one considered his symptoms and age.
145 Mr Brownbill examined the plaintiff on behalf of CGU on 11 May 2011. The plaintiff then told him of constant lower back pain, worse with prolonged sitting.
146 On examination, active thoracolumbar spinal movements were nil in extension and a third of full in other directions, with associated apparent apprehension, with also breath holding and grimacing. There was generalised lumbar tenderness but no guarding.
147 Testing for power showed a marked give way weakness of all muscle groups of both legs, most pronounced about the feet. Reflexes were present and symmetrical. Sensation was decreased over the outside of the left leg. During this examination there was marked apparent apprehension, with hyperventilation and breath holding.
148 Mr Brownbill commented apparent restriction of cervical and thoracolumbar spinal movements were shown on examination. There was no objective neurological abnormality in the upper or lower limbs. There were no signs of radiculopathy or myelopathy. The plaintiff’s demeanour and responses indicated likely marked emotional reaction with apprehension. Mr Brownbill noted radiological investigations had shown diffuse cervical disc degenerative changes and multiple level lumbar facet joint arthropathy changes.
149 On the information provided, Mr Brownbill considered the plaintiff suffered an aggravation of pre-existing asymptomatic cervical and lumbar spine degenerative changes in the accident, and it was also likely he had developed an emotional reaction with apprehension to that pain.
150 Mr Brownbill considered the plaintiff in future should avoid activities involving heavy lifting, forced cervical or spinal mobility, holding his neck in a fixed position, repeated bending or prolonged standing or sitting.
151 Mr Brownbill considered it reasonable for facet joint injections to be offered to the plaintiff. If after a further three months of physiotherapy and hydrotherapy the plaintiff still considered there was no benefit from that management, Mr Brownbill thought it would be appropriate for his treating doctors to consider ceasing it.
152 Mr Brownbill did not consider the plaintiff fit to return to his work of pre-injury duties and hours. From a physical neurological point of view, he thought the plaintiff had the capacity to return to alternative employment that avoided activities such as those involving heavy lifting, full cervical or spinal mobility, holding his neck in a fixed position, repeated bending or prolonged standing or sitting. He considered that the return to work should be commenced in a graded fashion and that it was reasonable for the plaintiff’s capacity for work to be reviewed in six months.
153 Dr Elder, occupational and environmental medicine physician, examined the plaintiff on behalf of CGU initially in July 2010, and re-examined him in August 2011.
154 On the initial examination, Dr Elder noted that the plaintiff’s presentation was somewhat clouded, with abnormal illness behaviour and some inconsistency in response.
155 There was a full range of pain free movement in the neck. There was no organic reason for the collapsing give way pattern of power in both upper and lower extremities, and sensation was diminished in a non anatomical distribution.
156 Dr Elder thought the plaintiff had an aggravation of lumbosacral degenerative disc disease with no clinical evidence of radiculopathy.
157 On re-examination, there was still some abnormal illness behaviour and pain behaviour but an acceptance by Dr Elder that there was an aggravation of degenerative disc disease in the lumbar spine with no clinical signs of radiculopathy.
158 Dr Elder commented that one would have expected ordinarily resolution of the symptoms in a few months after the accident, given the mechanism of injury, but that the plaintiff’s recovery appeared to have been clouded by psychological overlay.
159 Dr Elder thought the prognosis was therefore not optimistic. He considered no operative intervention was required, and a simple analgesic regime was appropriate and reasonable. He was still of the opinion that passive modality treatment was contraindicated.
160 Dr Elder considered the injuries did interfere with the plaintiff’s ability to return to his pre accident employment, and thought it likely he would never return to work. He thought the plaintiff’s injuries also interfered with his domestic and leisure activities.
161 From a physical perspective he believed the plaintiff could return to the proposed clerical duties offered in the return to work plan. Ordinarily he would have expected the plaintiff to be able to undertake the clerical duties at first on a part time role for twenty hours a week, doing a graduated transition towards full time employment.
Investigations
162 Dr Fitzgerald arranged for a CT scan of the plaintiff’s lumbar spine in April 2009. It was reported that there was no fracture or malalignment, and the sacroiliac joints were intact.
163 The CT scan of the plaintiff’s cervical spine organised by Dr Fitzgerald at that time showed no acute cervical spine pathology.
164 An MRI scan of the cervical and lumbar spine was organised by Mr Barrett in July 2009. It was reported there was mild diffuse cervical intervertebral disc degenerative change, with the most pertinent finding being at C3-4 where there was moderate left foraminal stenosis secondary to a shallow broad disc osteophyte complex.
165 It was also reported there was severe bilateral facet arthropathy from L3-4 to L5-S1, and mild diffuse lower lumbar intervertebral disc degenerative change without neural compromise.
166 Mr Barrett organised an MRI scan of the cervical and lumbar spine in July 2011. It was reported that there was no significant abnormality present in the cervical spine. There was moderate bilateral L4-5 and L5-S1 facet joint arthropathy, and no significant disc herniation or nerve root compression.
The Defendant’s Medical Evidence
167 Dr Leong from Epworth Healthcare reported to Dr Davaris in September 2009 after the plaintiff had been referred to him for consideration of a pain management program.
168 The plaintiff reported a past self-limited history of back pain in 2002 which resolved after three days.
169 Following examination of the plaintiff, Dr Leong noted that the plaintiff continued to experience significant discomfort from what would seem to have been an initial soft tissue musculoskeletal injury to his lower back and to a lesser degree his neck. As a result of this and increasing frustration with his level of function, the plaintiff’s mood similarly seemed to have been affected. He remained quite tentative and pain avoidant with the development of abnormal illness behaviour.
170 Whilst Dr Leong believed the plaintiff would benefit from a pain management program, given his current level of activity, he suspected the plaintiff would find that program challenging. He suggested to the plaintiff, should he wish to undertake the program, his participation level would first need to be assessed and possibly increased if he was to have maximal benefit from this.
171 On examination, it was noted that the plaintiff had markedly reduced active straight leg raise with only slight increasing passive leg raise because of reports of back discomfort.
172 The plaintiff attended Epworth Rehabilitation in Camberwell for three pain management sessions between 2 December and 11 December 2009.
173 On discharge, the plaintiff was observed to have a positive response to an initial demonstration of adaptive techniques and equipment for increasing independence in lower limb dressing and he was able to gain an initial insight into the persistent pain framework by attendance at a small number of education sessions. He was unable to start a gym program due to the reported high pain levels. He did some yoga and was only able to complete a walk on both days of 85 metres. He finished the program early both days and was unable to participate in any further exercise or flare-up management to help reduce his pain.
174 It was recommended that if the plaintiff wanted to be medically assessed by Dr Leong, he make an appointment for review and that he contact his general practitioner in the ongoing management of his pain condition. It was highly recommended the plaintiff have access to community based psychologists to help him with support and ongoing management of mood, sleep and adjusting to post injury life.
175 Dr Michael Bowles, occupational physician, examined the plaintiff on 23 June 2011. Dr Bowles had available to him a vocational assessment compiled by Ayres, which outlined suitable employment options of sales assistant, clerical service – enquiry clerk, call service operator, courier/ delivery driver (light short routes) and architectural draftsperson.
176 At that time, the plaintiff reported a constant pain in the low back which was five to six out of ten and built up to seven or eight out of ten. There was radiation to the left buttock, hamstring and around the left kneecap and under the foot.
177 On examination, the plaintiff presented downcast and despondent, walking slowly with a lot of sighing, oohing and ahhing. He required assistance getting his boots on. Dr Bowles noted the most striking feature was thickened skin and callusing of a significant nature on both hands. Otherwise examination was highlighted by a number of non-organic features, again with a moderate degree of pain behaviour with oohing, ahhing and sighing.
178 Back complaints were noted through the lumbar region more on the left with widespread light touch tenderness. Very little movement was undertaken at all to request in the lumbosacral spine. There was a positive response to simulated rotation but not to axial compression.
179 While on the couch, the plaintiff would not tolerate straight leg raising more than a few degrees off the bed with the left leg and about fifteen to twenty degrees with the right. However, he was able to sit up and have the legs extended to seventy degrees. He reported light touch sensory loss through the left leg which did not meet any anatomical pattern.
180 Dr Bowles thought the plaintiff’s complaints were consistent with mechanical back pain. He noted there were a number of inconsistencies in the plaintiff’s presentation and more so, mechanical skin changes of the hand and front knee would suggest significant manual activity being undertaken at present. Dr Bowles also saw a significant degree of pain behaviour.
181 Dr Bowles did not believe that the level of the plaintiff’s incapacity was as great as he was representing given the mechanical skin changes. Dr Bowles thought back complaints were likely to be due to the underlying age related processes, noting the MRI scan did not show any trauma to the back. In Dr Bowles’ opinion, employment was not then a cause of incapacity.
182 Dr Bowles thought it likely the plaintiff was undertaking some degree of manual work, possibly employment, and that mechanical skin changes would suggest a capacity for pre injury duty and hours.
183 Dr Bowles noted there could be a number of issues affecting reported return to work including treating practitioners’ certification and the plaintiff’s feeling of incapacity and disablement.
184 Dr Bowles believed the plaintiff had a physical capacity to undertake a number of options outlined in the vocational assessment. He considered that any light to moderate manual work would be suitable for a man of the plaintiff’s age as he remained active and mobile.
185 In Dr Bowles’ opinion, employment did not continue to contribute to the plaintiff’s condition and there was evidence of significant exaggeration in overlay and possible misrepresentation.
186 Dr Rose, psychiatrist, examined the plaintiff on behalf of CGU on 28 June 2011. He later provided a supplementary report, having been provided with the vocational assessment and also Dr Bowles’ report.
187 The plaintiff told Dr Rose that since the accident he had had severe pain in the low back and left leg as well as the neck. Dr Rose noted unfortunately there were associated psychological symptoms in the form of constant thoughts about the accident and bad dreams. However, despite those symptoms there had been no real avoidance symptoms.
188 The plaintiff told Dr Rose he had very poor energy levels, mostly associated with his chronic pain, and he no longer went fishing, riding his bike, swimming or snorkelling. He was mildly depressed because of this restriction in his physical activities that he used to enjoy.
189 The plaintiff told Dr Rose there was no past history of psychiatric illness or previous accidents or injuries.
190 On mental state examination, the plaintiff was warm, mildly anxious and depressed. He had some difficulties sitting due to pain. He was intelligent and responsive but he was preoccupied with pain and slightly preoccupied with his feelings of anxiety and depression.
191 Dr Rose felt there were no abnormalities in the range of affect. The structure and flow of speech and thought were normal and there were no delusions, hallucinations or flashbacks. Objectively cognition, memory, concentration and orientation were normal.
192 Because of a lack of avoidance symptoms, Dr Rose could not make a diagnosis of Post-Traumatic Stress Disorder. He thought from a psychiatric perspective, the plaintiff was suffering from a mild to moderate Adjustment Disorder with Mixed Anxiety and Depressed Mood which in itself did not prevent him from working. In the absence of avoidance symptoms, there were no reasons from a psychiatric perspective that the plaintiff could not return to truck driving.
193 From a psychiatric perspective alone, Dr Rose thought the plaintiff could return to work in pre-injury duties and hours but the plaintiff claimed he had severe pain and he could not do the duties.
194 Dr Rose thought the plaintiff had a current work capacity from a psychiatric perspective alone and could return to modified truck driving or alternative work. He considered the plaintiff would return to work when he could cope with his physical injuries and pain.
195 Dr Rose commented that it was not for a psychiatrist to determine the possible types of employment suitable for the plaintiff.
196 Dr Rose noted the plaintiff was taking Pristiq and thought he did not require any further treatment for his psychological problems. He doubted the plaintiff would be able to progress to self-management given he was still in pain and given his psychological symptoms were partly due to pain.
197 After seeing Dr Bowles’ report, Dr Rose still believed the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
198 Dr Rose considered the Adjustment Disorder was definitely related to the accident. He thought there appeared to have been an increase in pain following the accident and he believed that that increase was the reason for the plaintiff’s psychiatric condition. Dr Rose noted it was not unusual for occupational physicians and psychiatrists to disagree about the contribution of work to pain related depression and anxiety.
Return to Work Documents
199 A return to work plan was complied in July 2009 following discussions between Nabenet, the employer’s warehouse manager and the plaintiff.
200 It was proposed that the plaintiff would work four hours a day with minimal or no bending, lifting or twisting and take breaks as required. It was aimed to increase his hours by an hour per day with reassessment each day.
201 A 130-week vocational assessment report was complied by WorkSafe following an assessment on 8 June 2011. Suitable employment options were seen to be sales assistant, customer service, call centre operator, courier/delivery driver (light short routes) and architectural draftsman (following re-training in Computer Assisted Drafting - CAD) - upon confirmation of work capacity.
202 It was noted that the latest certification of capacity from Dr Davaris outlined the plaintiff was unfit for any duties from 8 May to 4 June 2011.
203 Mr Brownbill’s view that the plaintiff had a capacity for alternative employment was relied upon.
204 On assessment, the plaintiff stated he experienced constant pain which on average was six to seven out of ten, increasing with activity. He did not believe he had any current capacity for work or retraining. He indicated his current inability to return to any kind of work related to his persistent pain, physical restrictions and issues with memory and concentration.
205 The plaintiff advised should his capacity improve, his priority was to return to a self-employed delivery driver role. He noted uncertainty regarding his prognosis. He expressed a disinterest in the sedentary roles suggested, stating he did not want to be stuck in the office. He explained he previously enjoyed his driving role and noted a return to office based work would increase his stress levels and cause a return to smoking.
206 During a telephone call after the assessment, the plaintiff advised he would consider a return to drafting work in the future should his capacity improve and he would be unable to return to driving, yet he confirmed he would require retraining in CAD and he expressed the opinion he had no capacity for such retraining at that time.
Licences
207 On 10 December 2010, the plaintiff applied for a Victorian firearm licence. He answered “no” to the question whether since obtaining his current Victorian firearms licence he had been treated for psychiatric depression, stress or emotional problems. He also answered “no” as to whether he had any other medical condition which could preclude him from obtaining a firearm licence and possessing firearms.
208 The plaintiff was shown his application for a heavy vehicle licence in March 2000. He would have subsequently renewed the licence but he did not know whether he had done so before or after the accident.
Overview
209 It is not disputed that in the accident the plaintiff suffered an injury to his lower back which has been diagnosed as an aggravation of pre-existing degenerative disease. A similar diagnosis was made in relation to the cervical spine.
210 I accept the preponderance of medical evidence that the plaintiff continues to suffer from the effects of the accident aggravation of his spinal back condition.
211 Dr Bowles is alone in the view that the plaintiff’s present condition is age- related and any contribution by the accident has ceased. He provides no factual basis for this view which is inconsistent with the plaintiff’s pre accident work capacity.
212 The principles in Petkovski v Galletti do not apply in the present case. Save for an isolated incident of back pain in 2002, prior to the accident, the plaintiff was coping well with heavy work with Salmat without experiencing any problems with his spine.
213 As Maxwell P set out in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 12, the weight to be attached to the plaintiff’s account of the pain experience will of course depend upon an assessment of the plaintiff’s credibility.
214 I found the plaintiff to be truthful, credible witness who did not embellish or exaggerate his complaints.
215 Save for an inconsistency on straight leg raising noted by Dr Bowles on examination, which was denied by the plaintiff, and the findings of Dr Elder on examination, all other medical practitioners who have opined in this case have accepted the genuineness of the plaintiff’s complaints.
216 Further, there is no surveillance film of the plaintiff behaving in a manner inconsistent with his reported level of pain and restriction.
217 I accept that since the accident, the plaintiff has experienced continuing back pain radiating to his left buttock and down his left leg to his toes. His leg feels numb and weak.
218 The plaintiff has great difficulty walking long distances and has problems with prolonged sitting or standing. He must constantly and regularly get up and move about otherwise his back stiffens and he finds any movements he attempts to do thereafter severely debilitating.
219 The plaintiff continues to require medication for his spinal condition. He currently takes Tramal, 500 milligrams, and Tramadol, 100 milligrams, for his back pain; Pristiq, 50 milligrams, for depression; and Nexium, 40 milligrams, to assist with upper gastric problems caused by the painkillers. He also takes Panadol daily.
220 The plaintiff’s spinal condition has had a major impact on his working life and capacity. I accept that as a result of his spinal condition, the plaintiff has been precluded from returning to his previous work which involved a high level of earnings.
221 Prior to the accident, the plaintiff had an excellent work record. Initially trained as a draftsman, he had run his own delivery business for the years leading up to the accident, earning considerable income as supported by his tax records.
222 The plaintiff enjoyed this work where he had a level of freedom to carry out deliveries in his own time – a situation he much preferred to working in an office environment as he had done previously. I accept that whilst the delivery job was heavy, the plaintiff enjoyed it and could carry out his duties without difficulty.
223 The inability to perform these pre-accident duties is accepted by all medical practitioners who have opined in this case.
224 Further, I accept that the plaintiff would have continued to work in this lucrative position until retirement age had he not suffered injury in the accident.
225 I am not satisfied that the plaintiff could return to draftsman work even if he undertook retraining. Firstly, he does not have the requisite computer skills, having done only manual drawing in the past. Insofar as the job would involve sitting or prolonged standing, the plaintiff would have difficulty due to his back condition. Further, as the plaintiff explained, work as a draftsman is not simply drawing but involves attending sites, taking measurements and engaging in other physical tasks which he would be unable to undertake because of his back condition.
226 I am therefore satisfied that the employment consequences of the plaintiff’s spinal impairment constitute a “serious injury”.
227 In addition, other aspects of the plaintiff’s life continue to be adversely affected by his condition.
228 The plaintiff is no longer able to go fishing, hunting, bike riding or swimming. His ability to go shooting is restricted. He does not enjoy socialising and dancing as he did before the accident.
229 I am also entitled to take into account the expected emotional consequences when considering the seriousness of the plaintiff’s physical impairment – see Winneke P in Richards v Wylie.
230 As psychiatrists Dr Rose and Dr Nathar opined, the plaintiff has an accident- related Adjustment Disorder. The plaintiff’s continuing frustration and depression relating to his restrictions and pain has been confirmed by his general practitioner.
231 As there is no suggestion of any potential for improvement in the plaintiff’s condition, which has persisted for over two years, I am satisfied that the condition is long term.
232 Taking into account all the evidence, I am satisfied the plaintiff has a “serious injury”, and I grant leave to bring proceedings for damages in relation to the accident.
- - -
2
0