Perry v Victorian WorkCover Authority
[2018] VCC 95
•19 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-03016
| UNA BERNADETTE PERRY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 January 2018 | |
DATE OF JUDGMENT: | 19 February 2018 | |
CASE MAY BE CITED AS: | Perry v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 95 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the lower back – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267
Judgment: Leave granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Ryan with Ms S Gold | Robinson Gill |
| For the Defendant | Ms M Britbart QC with Ms F Spencer | Lander & Rogers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with Accenture Australia Ltd (“the employer”) on 13 June 2012 (“the said date”).
2 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
3 The body function relied upon in this application is the spine.
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] (2006) 14 VR 602
11 The plaintiff relied upon two affidavits and gave viva voce evidence. She also relied on affidavits sworn by her friends Jennie Wigginton and Craig Titchener in January 2018. In addition, the parties relied on medical reports and other material tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
12 The plaintiff is presently aged forty, having been born in the United Kingdom in May 1977. She has a daughter, Zena, who is seven, and a son, Charlie, aged four.
13 The plaintiff completed a Bachelor of Science degree in England. Thereafter, she worked for a telecommunications company and then a housing association in learning and development. Her role was in IT training and implementation.
14 In May 2007, the plaintiff came to Australia with her husband. She started full- time work with the employer in December 2008 in an IT consulting and learning and development role. She then moved into the project management office. Her job was well paid, sedentary work which she very much enjoyed.[3]
[3]Transcript (“T”) 6
15 In 2015, the plaintiff left the employer and commenced work with her husband as an executive sales assistant in two Hocking Stuart Real Estate franchises where she worked until about December 2016.
16 In about March 2017, the plaintiff commenced work with Manorwood Conveyancing as an executive assistant until being made redundant in November 2017. She is presently looking for work back in the learning and development sector.
Pre-incident health
17 In 2009, the plaintiff fractured her wrist playing rugby in Melbourne. Also that year, she had a transport accident, as a result of which she had some neck and back pain, and required time off work. She could not remember significant ongoing lower back pain following that accident.
18 The plaintiff saw physiotherapist, Sara West, a few times in 2011 for left shoulder pain.[4] Whilst Ms West noted the plaintiff had low-back pain playing rugby,[5] pain at that earlier time was in fact in her mid back, for which she received physiotherapy treatment in the United Kingdom. At that time, she took care of her back when playing rugby and whilst skydiving, and she did strengthening exercises. She did not believe she had a lower back problem until after the said date.[6]
[4]T18
[5]Note of 22 August 2011: “PHx; LBP while playing rugby”
[6]T19
19 Prior to the said date, the plaintiff had suffered depression after she lost her baby, Michael, when she was around twenty weeks’ pregnant. The plaintiff then became pregnant very quickly with Zena and after she was born, again suffered from the grief of losing Michael and had a short period of psychological treatment. She returned to full-time work in January 2011 in the same role with the employer after the birth of her daughter.[7]
[7]T6
20 The plaintiff denied that in May 2012, she was starting to struggle with work, having a young child and being pregnant, as Dr Minchin noted. The employer was very flexible and the plaintiff worked from home, which a lot of the team did.[8] Possibly she was struggling. She remembered it was a stressful period; her husband was getting more heavily into his real estate work and she was doing a lot on her own.[9]
[8]T7
[9]T8
21 “Mentally there was a lot going on” which the plaintiff discussed with Dr Minchin in May 2012. The plaintiff was not keen on taking antidepressants as she was pregnant. That year, she saw a psychologist, Vicki Palmer, either weekly or fortnightly, until Charlie was born. The plaintiff then “slightly felt the burden of everything”, having to do a lot on her own because of her husband’s health, and also she did not have the support of any family in Australia.[10]
[10]T9
22 On the said date, the plaintiff was about twenty weeks’ pregnant. Whilst at work, she was required to walk from her Collins Street office to another city location for a meeting.
23 The road at the corner of Little Collins and William Streets was then being dug up for water mains’ work. Whilst walking in an area designated for pedestrians, the plaintiff slipped off the kerb when she tripped on a string trailing on the ground from one of the cones on the work site. She took a step forward and fell onto the road onto the right side of her stomach (“the incident”).
24 Following the incident, the plaintiff had significant bruising on her stomach, and her hands and knees were grazed. One of the workmen on the site came to her assistance. An ambulance was flagged down which then took the plaintiff to the Women’s Hospital Obstetrics Unit. At that time, she was terrified for her pregnancy as she had lost Michael at twenty weeks and was worried it would all happen again.
25 Later that day, the plaintiff was discharged from the Women’s Hospital; however, she started cramping and was rushed to the Mercy, where she was monitored and given some medication.
26 About three weeks after the incident, the plaintiff attended her local general practitioner at Hoppers Crossing as she was conscious of low-back pain.[11] On that attendance, she was “absolutely” having back pain.[12]
[11]T11
[12]T14
27 After the incident, the plaintiff’s main focus, concentration and concern was the baby, and that overrode everything else. It was not until her physical injuries diminished that she realised there was an ongoing issue with her back. It was probably a couple of weeks after the incident she first experienced pain in her lower back.[13] Everything else then had started to die down. There was obviously pain there and she was expecting it to stop. There may have been pain from the beginning but again, her main focus was the baby. Her head “probably was not a hundred per cent focussed on her back; to be honest, everything hurt”.[14]
[13]T10
[14]T11
28 The plaintiff had a week off work after the incident and when she returned, she worked three days a week from home and two days in the office. At that time, there was certainly back discomfort but she was still very bruised and it took quite some time for the bruising to go down. There was low-back pain on her return to work. She was sure she had low-back pain the week after the incident. From her perspective, there had been an ongoing issue with her back since the incident.[15] She did not agree her memory of these matters was not very good.[16]
[15]T12
[16]T13
29 The plaintiff had no time off work due to back pain after the initial week off after the incident.[17]
[17]T45
30 The plaintiff’s claim was accepted. In the Claim Form signed by her on 4 July 2012, she would have described the issues with her knees, hands and her back as soft tissue damage.[18]
[18]T15
31 When it was suggested to the plaintiff she did not mention back pain in her Claim Form or to her general practitioner, she explained this was because she believed at the time she had been told, the pain was something that would go away when she gave birth. She also recalled being given similar advice by a physiotherapist. However, the plaintiff agreed she did not see a physiotherapist until 13 July 2012, after she had completed the claim form.[19]
[19]T16
32 The plaintiff denied the reason she did not mention a back injury on her Claim Form was because she was then not experiencing back pain. She believed she was, but thought it would go away with all her other injuries. All she knew was she was in pain and that did not go away after the birth of her first child in October 2012 despite having been told that with exercises and some physiotherapy, things should get better after the birth.[20]
[20]T21
33 Previously in her pregnancies, the plaintiff had had no low-back pain that she could recall and she was running 5 or 6 kilometres. After the incident, she had lower back and pelvic pain. After she was thirty weeks, she had to stop working due to her back pain. At that stage, the plaintiff was barely about to get out of bed, and was having physiotherapy and prenatal hydrotherapy.
34 The plaintiff continued physiotherapy until December 2012 when WorkCover ceased funding.[21] She did not self-fund physiotherapy thereafter because she could afford to do so.[22] During that period, she was still having daily low-back pain and she recalled having had constant pain ever since 2012.[23]
[21]T21
[22]T30
[23]T29
35 The plaintiff denied she had had a significant improvement in her back condition by January 2013. Her pain was not as severe as it was while she was pregnant but the issue was she had constant burning pain in her low back that was not going away. She has had that pain every day since 2012.[24]
[24]T22
36 The plaintiff did not have physiotherapy treatment between January and October 2013, both because she could not afford to do so, and also she relied on her physiotherapist, who told her, basically, her shoulder could not be fixed. The plaintiff was not going to constantly complain about something if she could not get it fixed and she was going to manage it as best she could.[25]
[25]T30
37 During this period, when there was no physiotherapy treatment, the plaintiff was trying to do walking and exercises her physiotherapist had given her. She did stretches and tried to get on with her life and tried to keep mobile. She agreed in January 2013, she was walking up to 3 kilometres a week. She had attempted jogging but that caused pain so she did not continue.[26]
[26]T34
38 During 2013, the plaintiff was doing yoga, which she had not done before, but it was not something she particularly enjoyed like running but it seemed to help somewhat. She paid for the yoga herself.[27]
[27]T35
39 During 2013, the plaintiff’s back pain had always been there and there were also flare ups. When these occurred was not the only time she took medication.[28]
[28]T36
40 The plaintiff confirmed she obtained a new role with the employer in May 2013 but was not sure whether it involved a substantial pay rise. Her new wage was around $105,000. When it was suggested being paid that amount, there was no financial impediment to physiotherapy treatment, the plaintiff explained her family was then living off her salary, as her husband was trying to set up his real estate business.[29]
[29]T33
41 The plaintiff recommenced physiotherapy in October 2013 which she self-funded.[30] At that time, her husband was doing well with his real estate work and they were staring to get some money in.[31]
[30]T29
[31]T33
42 The plaintiff has had continuing symptoms in her low back since the incident but as the mother of two young children, and working, she had mostly put up with these symptoms.
43 At the suggestion of a WorkCover doctor, the plaintiff had an MRI scan in April 2015. Thereafter, she saw a specialist neurosurgeon, Mr Lo, who told her there was no surgical solution to her back problem. He suggested she restrict bending and lifting, including picking up the children. However, this was very difficult for the plaintiff as the mother of young children.
44 The plaintiff could not remember Mr Lo mentioning pain management to her.[32]
[32]T39
45 As of February 2017, when she swore her first affidavit, the plaintiff was taking over-the-counter Panadeine. However, that medication made her groggy. She also took Ibuprofen and paracetamol. She took pain medication most days. However, as she needed to work full time and look after her children, it was not feasible for her to take stronger pain medication.
46 The plaintiff was then doing the exercises given to her by her physiotherapist every day for a few minutes. She also had a back roll which she used to stretch out her back. She kept a wheat bag at her work desk and next to her bed at home as heat on her lower back helped relieve the pain.
47 The plaintiff was then constantly aware of back pain. She felt the pain in the middle base of her back and at times, it went down into her right leg. She was aware of her lower back in day-to-day activity and tried to avoid aggravating it. She was frustrated she was not able to be as active as she was pre incident and she thought, over the last year or so, her lower back pain had worsened.
48 The plaintiff could only sit for limited periods until it was uncomfortable. After about half-an-hour or so, she felt a burning sensation. She relieved her pain by getting up and walking around and whilst at work, she often walked around the office. Activities like watching films could be uncomfortable and she preferred to lie down while doing so.
49 The plaintiff had issues sleeping and felt constantly in discomfort. She slept on her back with a pillow under her knees. She felt tired and groggy. Picking up the children was painful and putting them in and out of the car was awkward and difficult; however, the plaintiff still had to do it. She was constantly telling the children that things would “hurt mummy’s back”.
50 Pre incident, the plaintiff loved running. It was her stress relief. Before her pregnancy with Zena, the plaintiff had done the Run for the Kids which was over 14 kilometres, and the Great Australian Run, which was 15 kilometres. She was running while pregnant with Charlie right up until the said date.
51 Since the incident, as a result of her lower back pain, the plaintiff was no longer able to run. She tried to ease her way back into running but found it was not worth the pain.
52 The plaintiff had difficulty with long car journeys, during which she needed to get out and walk around. The rocking of the train whilst commuting to work also aggravated her pain.
53 The plaintiff no longer mowed the lawns. She previously enjoyed this activity and also loved gardening. Sometimes she pulled out weeds but preferred to sit while doing so.
54 Pre incident, the plaintiff loved playing Rugby Union in both in the United Kingdom and Australia. Her husband also played and coached her team. She stopped playing rugby when she had a wrist injury in 2009. When she was pregnant, the plaintiff had to avoid contact sports; however, she intended to go back to playing when she had finished having children.
55 Whilst in the United Kingdom, the plaintiff was a keen skydiver. There, she completed about eighty-seven jumps all up, but had not been skydiving in Australia. Once she had children, she wanted to get back into that sport and still dreamed about doing so. However, that activity put a lot of pressure on her lower back and she would no longer be able to cope with the rough landings.
56 Since the incident, psychologically it had also been difficult. The plaintiff was extremely scared throughout the remainder of her pregnancy which was a very anxious and traumatic time. She kept worrying she would lose the baby after the incident and even then, when she thought about it, she cried. Her back pain was a constant reminder of the incident which also reminded her of the pain of previously losing Michael.
57 As a mother, the plaintiff often put herself last. She still did activities that aggravated her back, particularly with the children, but paid for it later. She did not feel like she had time to rest or seek the medical treatment that she needed. Her back pain affected her life in many ways and she no longer felt as active and healthy as she used to. She was worried this situation would only continue to worsen as she got older.
58 Since swearing her first affidavit, the plaintiff has split up with her husband and she has moved into a house at Point Cook with her children, for whom she has sole responsibility.
59 As the plaintiff’s relationship difficulties were stressful, she has been seeing Helen Schulz, psychiatrist, and also a counsellor regarding these issues. The plaintiff is currently taking Pristiq.
60 The plaintiff’s back pain continues to have a major impact on her life. Her pain is constant and located in her lower back, towards the middle. It feels like a burning sensation. She tries to ignore it when she can. With prolonged sitting, the pain worsens and she often needs to get up and move around. The pain is distracting and frustrating.
61 Sometimes the plaintiff’s back has felt a little better over the past years but that was “on a scale of it being too painful” to be able to run and do all the activities she used to enjoy doing. She did not remember any periods of, say, six months when she was going pretty well.[33]
[33]T13
62 The plaintiff did not agree that she had told her physiotherapist at various times that her pain was not too bad or that she was travelling well.[34] The physiotherapist may have recorded the plaintiff was going okay but the pain was still there and she was trying to manage it and get on with things. She was not saying the pain was not there, it was.[35]
[34]T37
[35]T58
63 The plaintiff did not have the time to travel or the finances for childcare to undertake Pilates three times a week as her physiotherapist at Hoppers Crossing suggested in 2015.[36]
[36]T41
64 As at February 2017, the plaintiff was attending physiotherapy at Hoppers Crossing about once a month, where she was treated mostly for her back pain. She last attended in August 2017; however, she found the treatment only gave short-term relief and she also stopped for financial reasons. She would have liked to have gone more frequently. However, at least, once a month was better than nothing.[37]
[37]T35
65 Most mornings, before the children get up or while they are having breakfast, the plaintiff continues to do the back exercises she has been given by the physiotherapist. If she does not have time then, she does these exercises in the evening. She gets on the floor and stretches out and mobilises her back. The exercises help with stiffness rather than pain, and her symptoms worsen if she does not do them.
66 The plaintiff has not been back to see a specialist since seeing Mr Lo. She does not discuss her back condition with her general practitioner when she attends Hoppers Crossing. She has previously been told by Mr Lo surgery is not an option and understands there is nothing more to be done. There does not seem to be any point discussing her back pain further unless new treatment can be offered. Her back still causes her pain which she self-manages as best she can.
67 The plaintiff agreed she did not tell her general practitioner about ongoing back problems.[38] She repeated that Mr Lo said there was nothing that could be done. She agreed that she mentioned her low-back to her general practitioner only twice in 2015, around the time Mr Carey had suggested the MRI scan.[39] During that period, she was attending her doctors for treatment of other complaints.[40] On those visits, she was focussed on those other matters and did not mention her back, because she believed nothing more could be done for it, rather than the situation being she did not need treatment.[41]
[38]T43
[39]T26
[40]T27
[41]T31
68 The plaintiff had been seeing a psychiatrist and psychologist in 2016 for issues unrelated to her back and had not mentioned back pain to them.[42] Again, this was because she had been told there was nothing that could be done and she was getting on with it and was not one to constantly complain.[43]
[42]T46
[43]T49
69 The plaintiff had been talking primarily to psychiatrist Dr Schulz about family issues with her husband. The focus of their interactions had always been on relationship issues.[44] The plaintiff was surprised she had not mentioned her back; however, the focus of treatments was due to the “severe psychological issues” she was going through.[45]
[44]T55
[45]T56
70 The plaintiff disagreed she had not mentioned her back pain to various examiners because her pain was not at a level to interfere with activities of daily life. She disagreed it was not a condition that required other than sporadic medication and also disagreed, apart from an occasional flare up, her pain was mild and did not stop her from doing most things.[46]
[46]T53
71 The plaintiff now takes over-the-counter Panadeine Extra, with codeine; however, it makes her groggy. Because of this, she usually takes one or two tablets in the evening before bed. She avoids heavier medication because she finds she cannot function, even the next morning. She needs to get up every day and manage the housework and look after her children.
72 The plaintiff takes Panadeine, certainly two or three times a week, but is conscious of becoming dependent on it.[47] However, she has been taking Nurofen and paracetamol pretty much every day before she goes to sleep. She has progressively used more and more medication as time has gone by, probably in the last two years or so, because the pain is there and it is not going away and she is getting quite fatigued with it. She would not say the pain is getting worse. It is stable but it is always there and it is “wearing.” She did not believe in 2014 and 2015, there may have been times when she was taking medication only for flare ups.[48]
[47]T23; T24
[48]T25
73 When the plaintiff last worked, she used a heat pack most days. Her former employer purchased an ergonomic chair to assist her at work. The plaintiff also had an electronic heat pack which she attached to the back of her chair, and on lunch breaks, she tried to take walks which would help. She also used to get up and move around when she could.
74 As a single mother, the plaintiff pushes through every day as best she can. She is responsible for looking after her children and doing the housework. She cannot afford a cleaner and she has to do the housework herself, although she finds it hard to mop and clean the bathroom. She has pain with these heavier tasks but often has to put up with it; however, it catches up with her at night when she is trying to relax.
75 Looking after the children means the plaintiff has to bend and lift. Although she has been advised not to, that it is not practical for her. She is often in a rush. Her daughter has autism, which means that sometimes the plaintiff has to physically direct and lift her into the car, or catch her if she runs away. Putting the children in the car is an ongoing painful activity.
76 Once in bed and trying to get to sleep, the plaintiff feels the most pain. She sleeps on her back with a pillow under her legs. If she wakes up, her back pain makes it more difficult to get back to sleep.
77 Even though money was an issue, when moving house, the plaintiff had to hire a removalist to help her lift boxes which she was unable to do so.
78 The plaintiff still cannot run or do strenuous exercise. Running was her way of mentally coping with things but back pain stops her from being able to run long distances for exercise. This activity is what she misses most and wishes she could do.
79 As a child, the plaintiff enjoyed horse riding. She hoped to share this activity with her children when they were old enough; however, it would be very painful for her now because of the up and down motion involved. The plaintiff’s horse riding on 29 January 2016 noted by her physiotherapist was just walking around on a horse at Halls Gap. When she was younger, the plaintiff was jumping, “major hacks” and cantering.[49]
[49]T44
80 Before the incident, the plaintiff was strong, fit and active. She loved doing things for herself and did not like having to rely on other people like she now does. She feels that she has lost a lot of independence and her back pain affects her every day and limits how she can live her life.
81 After the incident, the plaintiff participated in a high intensity exercise program for a short period but was in pain afterwards.[50] While she had been power walking up to three kilometres in August 2014 to improve her fitness, there was no impact on her back with this activity. She was still in pain but needed to be able to move her body.[51]
[50]T41
[51]T42
82 The plaintiff has a spikey ball at home on which she rotates her back. She also uses heat and wheat packs as she did at work
83 The plaintiff agreed, that now, obviously, her life is busy with her children. She is actively looking for work. She is able to do the shopping and can cook.[52] As she no longer has a cleaning lady, she has to do the heavy cleaning tasks herself and she sporadically cleans.[53]
[52]T54
[53]T55
84 The plaintiff is upset that she cannot do the physical activities she previously enjoyed.[54]
[54]T46
Lay evidence
85 Jennie Wigginton swore an affidavit on 11 January 2018. She has known the plaintiff for about twelve or thirteen years, having met playing rugby together in England.
86 Ms Wigginton and her husband subsequently moved to Australia in 2009 and see the plaintiff and her husband regularly.
87 Ms Wigginton and the plaintiff played for Guilford Rugby Club for about three years in the United Kingdom and they trained regularly. The plaintiff played on the wing, which required a lot of fast running, and she was a fit and bold player. In the off season, they played mixed touch rugby and did pre-season training together. The plaintiff was playing rugby right up until she moved to Australia.
88 Before the incident, the plaintiff was an outgoing, fit and active person and fitness was very important to her. She was a dedicated runner and told Ms Wigginton she was running 5 kilometres each day while Zena was in childcare. The plaintiff continued to run while she was pregnant with Charlie but stopped after the incident. Running gave her some time to herself; however, she could no longer run or do sport after the incident.
89 The plaintiff seemed frustrated she could not live the same life as she did before the incident and she had put on weight. Ms Wigginton had encouraged her to go back into fitness training at a centre which had recently opened in Werribee where she had joined; however, the plaintiff advised she could not attend because of her back pain.
90 Craig Titchener swore an affidavit on 10 January 2018.
91 Mr Titchener met the plaintiff in about 1999 when they were both members of a skydiving club at Plymouth University in the United Kingdom. They were both qualified to do solo jumps without an instructor and also to do skydiving in formation. They went skydiving nearly every weekend for three and a half to four years. Weather permitting, multiple jumps were involved. In training, they were required to undertake simulated diving.
92 Sky-diving was a physically demanding activity involving heavy equipment and the requirement to climb in and around a plane. The level of skydiving he and the plaintiff had reached was complex and required discipline and control over the entire body.
The Plaintiff’s medical evidence
Treaters
93 Dr Rawlings, general practitioner, reported to WorkSafe on 11 December 2012.
94 Dr Rawlings described the plaintiff as suffering from a lower back soft tissue injury. She was then experiencing severe lower back pain, exacerbated by prolonged sitting and standing, which was also impacting on her sleep. Car trips were limited due to pain and the plaintiff was having difficulty standing in the kitchen to prepare meals. She was also having difficulty with breast feeding and sitting for prolonged periods. He thought the injury was consistent with her description and noted that she had no prior history of back problems.
95 Dr Gusah from Hoppers Crossing Medical Centre (“Hoppers Crossing”) reported on a number of occasions, most recently in January 2018. A number of practitioners at that clinic have treated the plaintiff since 2015.
96 Dr Gusah understood the plaintiff sustained a fall at work which resulted in constant chronic low-back pain and intermittent right lower limb symptoms without radiculopathy. Prior to the incident, she did not have any back condition.
97 In 2015, Dr Gusah noted that the plaintiff had lumbosacral pain with right buttock radiculopathy as a result of her injuries, noting the results of the MRI scan. Dr Gusah thought the plaintiff’s current condition was then materially contributed to by the said injuries.
98 Dr Gusah reported at that stage, the plaintiff found it difficult to get on and off trams due to her back pain and thus was not able to cope with working in the city. She was doing a desk job locally and was finding she was able to cope, although she needed to take frequent breaks due to the fact she was not able to sit or stand for prolonged periods and was unable to do any heavy lifting above 5 kilograms.
99 The plaintiff was then having physiotherapy monthly; however, she needed more sessions but was unable to afford it. Dr Gusah thought that treatment was essential to ensure the plaintiff could remain at work and continue activities of daily living. She referred the plaintiff to Mr Lo.
100 Dr Gusah last saw the plaintiff in February 2016 for gastroenteritis, having been her treating physician sporadically on a few occasions in 2015.
101 Dr Ghani from Hoppers Crossing reported in January 2018 that the plaintiff had been seen there by a number of general practitioners since 2015, “unfortunately not in relation to the injuries she sustained”.
102 Mr Lo, neurosurgeon, wrote to Dr Gusah in July 2015, thanking her for referring the plaintiff following the incident.
103 Mr Lo noted that ever since the fall three years ago, the plaintiff had suffered from back pain. At times, the pain would radiate down her right leg, more so than the left, but it was largely the lower back discomfort that was causing her the most concern and she was seldom without pain.
104 Mr Lo advised clinically, the plaintiff was intact and he thought the MRI scan clearly showed a disc desiccation at L5-S1. In his view, there was no neural compression and no canal compromise but this was likely to have resulted in a secondary paravertebral muscle spasm. He did not recommend surgery but suggested the plaintiff perform some self-directed hydrotherapy and seek help from a chronic pain management program if the hydrotherapy did not work. He did not schedule another appointment and advised Dr Gusah that if the plaintiff was no better and required a referral to the pain management service, then he would be more than happy to see her again.
105 Sara West, physiotherapist from Hoppers Physio, wrote to GCU in November 2012 after that insurer had decided to reject funding for further treatment.
106 Ms West advised that the plaintiff’s fall in the incident disrupted the ligaments of her lower lumbosacral spine, particularly the sacroiliac ligaments. In conjunction with the hormones that were released during pregnancy, that had led to a significant debilitating lumbo pelvic instability, which made it very difficult for the plaintiff to do activities of daily living and care for her two year old. She was recommended to cease work at about thirty weeks and she had been wearing a support belt brace constantly since July to support the lumbo pelvic area.
107 Ms West advised CGU that the plaintiff’s recovery from this injury would be greatly enhanced by the use of further treatment.
108 Ms Citroen, physiotherapist, also from Hoppers Physio, reported in February 2013 that the plaintiff had first presented for physiotherapy management of right-sided sacroiliac pain on 13 July 2012.
109 Ms Citroen thought the plaintiff’s pain and dysfunction was consistent with that of sacroiliac joint dysfunction consistent with the fall which had led to uneven distribution of forces throughout her pelvic girdle.
110 Ms Citroen advised that she had envisaged that the best ongoing course of management for the plaintiff would involve supervised core and pelvic strengthening, with progression into a gym membership involving clinical Pilates.
111 Ms Citroen noted that by the end of December 2012, the plaintiff reported being able to walk up to 3 kilometres before the onset of her right-sided sacroiliac joint pain. Whilst this was by no means up to her previous ability to run 5 to 10 kilometres, Ms Citreon thought the plaintiff’s improvements were consistent and heading in the right direction.
112 Ms Citroen also reported that the plaintiff had been seen at Hoppers Physio twice before the incident. In August 2011, she had had two treatments for management of left cervical and referred shoulder pain. She was then seen once in December 2011 after a car accident, following which she reported right-sided cervical and thoracic pain.
113 Ms Citroen noted the plaintiff attended her final physiotherapy session prior to the cessation of entitlements on 14 January 2013. The plaintiff then reported she had attempted to jog; however, in doing so, had experienced pubic symphysis joint pain.
114 Ms Citroen confirmed the plaintiff reported an inability to continue running and to attend to home duties, and she had difficulties looking after her two year old.
115 The plaintiff continued to be seen by Laura Baker, physiotherapist, at the same clinic as a private patient.
116 Ms Baker reported in July 2014 that, despite ongoing management, the plaintiff’s condition had not fully resolved. She thought the plaintiff’s best chance of success was to participate in an intensive rehabilitation program, focussing on her pelvic stabilisers. She noted, while the plaintiff’s condition had improved somewhat, she still had a number of flare ups, and that the plaintiff had adjusted her lifestyle to avoid aggravating activities.
117 Ms Mirjana Djukic from that practise reported in January 2018, noting the plaintiff had last attended on 17 August 2017 with low-back pain as a longstanding issue since the incident.
118 Ms Djukic thought objective and subjective findings indicated lumbar stiffness, back pain that was at that time worse on the left, decreased active range of motion and tight muscles in the low back and pelvic areas. She considered this was consistent with previous entries at that clinic.
119 Ms Djukic stated there were no reported aggravations from physiotherapy in August 2017 and the plaintiff reported temporary improvement in her pain and mobility; however, she also reported aggravations of her low-back pain, sometimes even from simple tasks in daily living such as walking and prolonged sitting.
120 Ms Djukic thought the plaintiff would benefit greatly from ongoing and regular physiotherapy including clinical Pilates program to manage her condition.
121 Ms Djukic noted that the plaintiff attended that clinic from July 2012 until August 2017 with lumbar spine stiffness and pain, sacroiliac joint pain, muscle tightness, and spasms consistent with the initial injury.
Medico-legal evidence
122 In February 2015, Mr Roy Carey, orthopaedic surgeon, carried out an AMA assessment on behalf of CGU.
123 The plaintiff then told Mr Carey at the time of the fall, everything hurt but she noted particularly some low-back discomfort but her principal concern was her unborn baby. She also told him she continued to use Panadol and Ibuprofen, two or three nights a week to aid sleep.
124 The plaintiff then described constant low-back pain which she indicated in the lumbosacral region, radiating more to the right than the left, constant but varying in severity. She had difficulty sleeping and had limited sitting tolerance.
125 Mr Carey noted that before her pregnancy/injury, the plaintiff was running 40 to 50 kilometres a week. Whilst pregnant, she could run 20 kilometres a week with no problem. Running was her passion. She was now unable to run anything like that distance and even 3 to 5 kilometres on grass exacerbated the pain so much it was not worth doing.
126 Mr Carey thought the plaintiff was a very direct witness to her problems with no catastrophisation. On examination, there was some lumbosacral tenderness, more to the right than the left, with some limit in flexion, markedly restricted extension and diminished left lateral flexion and rotation.
127 Mr Carey thought the plaintiff had chronic back and intermittent right lower limb symptoms in the absence of radiculopathy following the fall. He considered the prognosis was for continued discomfort and disability into the foreseeable future without a more specific management program based upon her physical diagnosis. He considered the plaintiff’s presentation was consistent with the injury and that her condition was now stable.
128 Mr Paul D’Urso, neurosurgeon, examined the plaintiff in September 2017.
129 The plaintiff then described chronic back pain at 3 out of 10, radiating into the right posterior buttock and thigh, with symptoms which could be worse at night. She was able to sit for an hour and walk comfortably but at night she could wake with symptoms.
130 Noting the 2015 MRI scan, Mr D’Urso thought it would appear the plaintiff suffered soft tissue injuries and abrasions on her hands and knees and also a soft tissue injury to the lumbar spine, and possibly a lumbosacral disc prolapse.
131 In Mr D’Urso’s view, it was likely the plaintiff would have a degree of low-grade back pain related to the lumbosacral disc prolapse. The prognosis would be satisfactory in the longer term. However, there was a possibility of an accelerated degenerative change and disc rupture with activity. In his view, this situation could be unpredictable.
132 Mr D’Urso did not think surgical intervention was then indicated.
133 Mr D’Urso noted it appeared the plaintiff was unable to perform vigorous physical activity as she once did, such as running, skydiving and rugby. He thought there appeared to be a mild effect on social, domestic and recreational spheres by her condition. In his view, the plaintiff appeared to have the capacity for her work as a conveyancing officer. He considered her condition had stabilised, although she will be prone to increased risk of acute disc rupture or accelerated disc degeneration.
134 In his supplementary report, Mr D’Urso confirmed that on the balance of probabilities, the incident injury had aggravated an underlying condition of the lumbosacral disc and exacerbated symptoms related to it. Furthermore, it may well have caused a degree of prolapse at the level of L5-S1.
Investigations
135 Dr Gusah organised an MRI scan of the plaintiff’s lumbosacral spine which was carried out in April 2015.
136 Thereafter, it was reported there was early disc desiccation at the lumbosacral junction with a very small left posterior paracentral disc protrusion and a posterior annular tear, with no evidence of thecal sac or nerve root compression. There was no additional significant disc abnormality and no evidence of bone injury. Disc height at all levels was preserved.
Claimdocumentation
137 In her Claim for Compensation signed in December 2012, the plaintiff described her injuries as “treated miscarriage soft tissue injuries, knee-hand.”
138 The plaintiff completed a Claim for Impairment Benefits in August 2014 in which she listed injuries to her back and right knee.
139 Following examination by Mr Carey, by letter dated 11 February 2015, CGU advised the plaintiff that liability had been accepted for a back injury resulting from the incident.
The Defendant’s medical evidence
140 Mr Skinner, colorectal and general surgeon saw the plaintiff in 2013 and 2014 for anal and continence issues.
141 Having noted these problems, Mr Skinner advised the plaintiff’s general practitioner that the plaintiff was reasonably fit and healthy, with no significant illness.
Medico-legal examiners
142 The plaintiff was examined by Dr David Barton, occupational physician, in December 2012.
143 The plaintiff then told him of the incident circumstances and that in view of increasing low-back pain, she saw a local doctor and was diagnosed with a sacroiliac joint problem which was subsequently confirmed by a physiotherapist.
144 Further, as of December 2012, the plaintiff had been having physiotherapy twice a week. Initially she said she could hardly move. Her symptoms gradually worsened and she was taking up to eight paracetamol a day. She gave birth to a healthy son on 31 October 2012 and had resumed physiotherapy a fortnight later.
145 On examination, the plaintiff then believed she was about ten per cent better and was only slowly improving. She described midline lower back pain extending more to the right than the left. Her symptoms were generally worsened with sitting, when she could subsequently develop a burning sensation extending into the left buttock.
146 Dr Barton reported specific examination of the plaintiff’s back showed some tenderness in the midline of the lumbosacral area. There was some limitation in lumbar movement.
147 Dr Barton noted the plaintiff also described persisting back problems that she had been advised were related to a sacroiliac joint problem as well as with “over compensating” the left leg.
148 Dr Barton thought it was difficult to see the relationship between the plaintiff’s persisting problems and the fall, noting normally such a fall would not be expected to cause such a long history of persistent difficulties. In his view, it was surprising that the plaintiff reported only a ten per cent improvement despite what he thought was clearly very comprehensive physiotherapy and previously hydrotherapy. He believed she may have developed a relatively minor soft tissue injury as a result of the fall that he would have expected to have resolved.
149 Dr Barton did not believe twice weekly physiotherapy treatment, that consisted of passive modalities, had any real role to play.
150 The plaintiff was examined by orthopaedic surgeon, Mr Michael Dooley, in June 2017.
151 The plaintiff told Mr Dooley of the fall and that thereafter, throughout her pregnancy, she noted increasing low-back pain. She was unable to work for the last ten weeks of her pregnancy and she required taping of her back and water exercises.
152 The plaintiff advised that post the birth, her low-back pain improved; however, she noted ongoing low-back pain. She had occasional leg pain but there was no true sciatica. She reported that in time, her back pain had become constant and was worse with prolonged sitting. She took Panadeine Extra for her pain. She advised of an active sporting life pre injury.
153 On examination, there was mild tenderness of the low lumbar region. Clinically, there was mild restriction of lumbar spine motion with extension causing low-back pain. There was no evidence of nerve root tension signs or of neurological deficits affecting the lower limbs.
154 Mr Dooley thought radiologically, the 2015 MRI scan had shown naturally-occurring degeneration involving the lumbosacral disc.
155 Given the described mechanism of injury, Mr Dooley considered it possible the plaintiff sustained a soft tissue injury to the lumbar spine in the fall which could have involved some aggravation of underlying degenerative disc disease. However, it would be his view that the constancy and intensity of her ongoing pain and her described disability, in time, were greater than one would expect to see for her organic condition.
156 Mr Dooley believed the plaintiff has a psychological reaction to the situation and that that had significantly influenced her ongoing symptoms, noting she had a pre-injury history of depression.
157 From an orthopaedic point of view, Mr Dooley thought no specific ongoing treatment was required and essentially, the plaintiff’s condition could be self-managed with activity, low impact exercise and sensible modification of activity.
158 Accepting a soft tissue injury was sustained to the lumbar spine, Mr Dooley thought that would have involved some aggravation of the underlying degenerative disc disease at the lumbosacral level. While the plaintiff reported constant ongoing low-back pain, he accepted some of that could be secondary to the soft tissue injury but he thought her psychological condition significantly influenced her ongoing physical symptoms.
Overview
159 While there was lengthy cross-examination as to when the plaintiff first experienced back pain and complained thereof after the incident, counsel for the defendant did not go so far as to say there was no compensable injury. However, it was submitted “on the contemporaneous material that just doesn’t seem to be so.”[55]
[55]T63
160 In any event, I accept the plaintiff suffered injury to her lumbar spine in the incident, which has been described by most practitioners as a soft tissue injury with perhaps some aggravation of underlying disc degenerative disease with treating physiotherapists of the view the plaintiff had suffered a ligament injury.
161 Mr Lo thought disc desiccation at L5-S1.was likely to have resulted in a secondary paravertebral muscle. In September 2017, noting the 2015 MRI scan, Mr D’Urso thought it would appear the plaintiff suffered a soft tissue injury to the lumbar spine, and possibly a lumbosacral disc prolapse.
162 It is clear from the contemporaneous medical evidence, that the plaintiff has complained of ongoing lower back pain since the incident.[56]
[56]T70
163 On 13 July 2012, Ms West noted that since the fall 4 weeks ago, “sig R LBP, esp w writing at desk long hours”. On 20 August 2012, Dr Rowlings at Hoppers Crossing noted that since the incident: “lower back pain ++. Pain worsening last 10/7.”[57]
[57]T71
164 Dr Barton is really the only examiner of the view that the incident no longer contributes to the plaintiff’s present condition. He did not however provide any explanation for this view following examination of the plaintiff. Since that time, in late December 2012, the plaintiff has reported ongoing back pain, been referred to a specialist, required painkilling medication and ongoing physiotherapy treatment.
165 Whilst of the view that the plaintiff’s complaints were greater than one would expect to see for her organic condition, Mr Dooley accepted following examination in late 2017 she had ongoing pain some of which could be secondary to soft tissue injuries suffered in the incident.
166 Although Mr Dooley commented on the presence of psychological factors in the plaintiff’s current presentation, it was not submitted on the defendant’s behalf that this was a case where the principles in Meadows v Lichmore[58] applied. However, it was submitted there was initially a sub-paragraph (c) application and the plaintiff had a significant pre-existing and ongoing psychological condition.[59]
[58][2013] VSCA 201
[59]T2
167 I am satisfied, taking into account all the evidence, that the plaintiff’s current lumbar condition has substantial organic basis.
168 Further, there is no evidence of any pre-incident lumbar condition and this is therefore not a case where the principles in Petkovski v Galletti apply.[60]
[60][1994] 1 VR 436
Credit
169 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[61]
“… 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. … .”
[61](2010) 31 VR 1 at paragraph [12]
170 In terms of credit, the defendant was “not saying the plaintiff was outright lying, but rather saying that she was presenting, and had presented, in particular more recently, to medico-legal examiners, an impression of things being bad from the start”. It was submitted the plaintiff “had seen the situation through a particular lens of the incident that focussed on her back in isolation to any other problem.[62] She had attributed an artificially large presence to back pain in her life which it was submitted was simply not borne out by the evidence.”[63]
[62]T60
[63]T63
171 I found the plaintiff to be a truthful, credible witness who did not overstate the extent of her pain and restrictions relating to her incident back injury. Significantly, her evidence as to the onset of incident-related back pain was corroborated by her treaters at a very early stage.
172 Further, whilst there was surveillance undertaken of the plaintiff as indicated in the index to the Defendant’ Court Book, there was no film shown of the plaintiff or any other evidence inconsistent with her reported level of pain and restriction.
Pain
173 I accept the submission by counsel for the plaintiff that a careful perusal of all the medical evidence showed someone who has very clearly been in constant lower back pain since the incident and had tried to get on with her life. She has not discussed her back problems with a number of medical practitioners because they have seen her for different health problems.[64]
[64]T77
174 From August 2012, the plaintiff complained to her general practitioners of severe low back pain, exacerbated by prolonged sitting and standing, impacting on sleep, and car trips.
175 In her report of 15 June 2015, general practitioner, Dr Gusah, described the plaintiff’s ongoing problems with daily activities. At that stage, Dr Gusah thought the plaintiff required more than monthly physiotherapy but was advised by the plaintiff she could not afford further treatment.[65]
[65]T76
176 When seen by Mr Carey in 2015, the plaintiff told him of a constant level of back pain and problems sleeping, and also how her injury affected what was previously an active, sporting life.[66]
[66]T76
177 In 2015, the plaintiff told Mr Lo that she was seldom free of pain and had pain since the incident.[67]
[67]T73
178 It was submitted on the defendant’s behalf that the consequences of which the plaintiff now complains do not loom as large as she tries to make them in her affidavit due to the lack of complaint of back pain to her general practitioners and other treaters in recent years in circumstances where she was a frequent attendee. The fact that there has been no specialist referral beyond Mr Lo in 2015 was also relied upon.[68]
[68]T60
179 It was submitted that the plaintiff’s situation was not one of unremitting pain[69] and that she would have had further treatment if her back pain was so bad. She also would have told those who treated her for unrelated issues, such as Mr Skinner, of ongoing back problems.[70]
[69]T66; as described by Dodds-Streeton J in Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267
[70]T67
180 Further, it was submitted, it should not be accepted that the plaintiff did nothing in terms of report and treatment, because she had been told nothing could be done.[71] She had private health insurance so treatment was not a financial issue. The fact was, she did not have treatment because she did not need it.[72]
[71]T67
[72]T61
181 Whilst some improvement at times was noted by the plaintiff’s treating physiotherapists,[73] I accept her back pain and restrictions have continued. There was not as counsel for the defendant submitted a situation of almost recovery in January 2013.[74]
[73]T62
[74]T70
182 As physiotherapist, Ms Djukic, reported in January this year, from 2012 to August 2017, the plaintiff presented with similar issues of lumbar spine stiffness and pain, sacroiliac joint pain, muscle tightness, and spasms which were consistent with the original injury.
183 Although treatment to date has been conservative, with attendances on her general practitioner, physiotherapy and a referral to a neurosurgeon, there has been has been no suggestion of surgery, and I accept the plaintiff has done all she has been advised to do by her treating practitioners.
184 The plaintiff’s evidence was that Mr Lo had not mentioned pain management to her and there is no evidence to the contrary.[75]
[75]T72
185 I also accept that relying on her physiotherapist’s advice, confirmed by Mr Lo, the plaintiff has not seen any point in telling treating practitioners of her back problems when seeing them for her numerous other health issues.
186 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[76] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).
[76](Supra) at paragraph [3]
187 I accept that since the incident, the plaintiff has had ongoing back pain. That pain is constant and located towards the middle of her lower back. It feels like a burning sensation. Her sleep is disturbed by back pain. With prolonged sitting, the pain worsens and the plaintiff often needs to get up and move around. Her pain is distracting and frustrating.
110 In recent times, the plaintiff has described her back pain and restrictions to Mr Dooley and Mr D’Urso in similar terms.
111 The plaintiff is now aged only forty and for the rest of her life faces ongoing back pain and restriction in her activities.[77]
[77]T79
188 In Stijepic v One Force Group Aust Pty Ltd,[78] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[78][2009] VSCA 181 at paragraph [43]
189 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
190 Counsel for the defendant submitted that I should not accept the plaintiff took medication every day, given the varying history of her intake to different doctors.[79] However, I accept the plaintiff requires ongoing medication for back pain.[80] While that medication is not to the upper end of the range of painkillers, it is still ongoing and necessary: Codeine, two or three times a week, and other over-the-counter painkillers daily.
[79]T66
[80]T78
191 Save for a nine month period in 2013, the plaintiff has undergone ongoing physiotherapy treatment since the incident until August last year.
192 The plaintiff continues to have restricted lumbar movement and pain which affects a range of activities. She has difficulty with prolonged postures.
193 As counsel for the plaintiff stated in opening, the focus in this application would be largely on the inability to participate in a very active sporting life for a young woman who since the age of thirty-five has lived with constant low-back pain.[81]
[81]T3
194 As I indicated during the hearing, it is clear the plaintiff’s interest and participation in sport pre-incident was far greater than one involving low level activities such as aerobics.[82]
[82]T64
195 I accept that pre injury, the plaintiff enjoyed vigorous, physical competitive sport of rugby and had participated in sky diving to relatively high level whilst in England. Most significantly, she was a dedicated runner, running, at times over very long distances and she was still running at the time of the incident whilst twenty weeks pregnant.
196 The plaintiff was not challenged as to her involvement in these activities before the incident nor that she did not intend to resume skydiving or rugby in the future.[83]
[83]T74
112 Running was the plaintiff’s passion and an integral part of her life which had been lost to her as a result of her back injury, as had the opportunity to get back into more vigorous sporting activities.[84]
[84]T79
197 Whilst not skydiving since in Australia, I accept that the plaintiff intended to resume skydiving given her pre-injury level of involvement and skill confirmed by Mr Titchener.
198 Further, I accept that after her children were older, the plaintiff intended to resume playing rugby having played until 2009 when she suffered an arm injury. The plaintiff’s interest and activity in this sport was confirmed by Ms Wigginton, whose evidence was not challenged.
113 Whilst it was submitted on the defendant’s behalf the plaintiff had returned to some high impact activity post incident,[85] the plaintiff had never been able to jog for the 3 kilometres, only power walk.[86] Any attempts to increase her fitness since the incident have caused pain and she has not been able to return to anywhere near her pre-incident level of physical activity.
[85]T65
[86]T75
199 Whilst the plaintiff walked around on a horse in January 2016, this activity caused her pain and was nowhere near the level of horse riding of which she had been capable of in her younger years.
114 Counsel for the defendant submitted the plaintiff was obviously living now what is a busy life, having recently been working full time, looking after two children.[87] It was submitted she can still work full time, can still do most activities of daily living and while there might be some problems with housework, that does not mean any back impairment is “serious”.[88]
[87]T64
[88]T68
115 However, whilst the plaintiff has continued to work, save for a one-week absence after the incident. She had problems with prolonged sitting at work, needing an ergonomic chair, the use of heat packs, and the ability to walk around at various times.[89] If she were to return to the workforce, these difficulties would continue.
[89]T78
200 Further, I accept that due to her back pain, the plaintiff is limited in her ability to do housework and gardening. Her sleep continues to be affected and she has difficulty with prolonged driving.
116 As counsel for the plaintiff submitted, the plaintiff manages her back pain with medication and exercise but is now only forty and has many, many active years in front of her. She has lost the ability to do the sporting activities she previously enjoyed and that, in combination with her constant pain, is “serious”.[90]
[90]T80
117 In addition to these various restrictions, as Mr D’Urso noted the plaintiff would be prone to an increased risk of acute disc rupture and accelerated disc degeneration.
201 Taking into account all of the evidence, I am satisfied the consequences to this plaintiff are “serious” within the statutory definition.
202 Further, as there has been no significant improvement in the plaintiff’s back condition despite conservative treatment for over five years, her impairment is permanent.
203 Accordingly, I grant leave to bring proceedings for damages for pain and suffering.
- - -
0
7
0