Pringle v Transport Accident Commission
[2015] VCC 492
•29 April 2015 (revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-04177
| GLENN KEITH PRINGLE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 March 2015 | |
DATE OF JUDGMENT: | 29 April 2015 (revised) | |
CASE MAY BE CITED AS: | Pringle v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 492 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Transport accident – impairment of the low back – pain and suffering
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Barlow v Hollis [2000] VSCA 26
Judgment: Leave granted to the plaintiff to bring proceedings for damages in relation to injury sustained in the transport accident on 11 January 2007.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett | Arnold Thomas & Becker |
| For the Defendant | Mr P D Elliott QC with Ms J Federico | Wisewould Mahony |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(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 which occurred on 11 January 2007 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to the definition of “serious injury” to be found in s93(17)(a) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
4 The loss of body function relied upon in this application is the impairment of the low back.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon three affidavits: two sworn by the plaintiff on 5 February and 19 March 2015, and an affidavit sworn by his wife, Paula Pringle, on 12 March 2015.
7 The plaintiff was cross-examined. I have not summarised the evidence of the plaintiff; however, I will refer to his and his wife’s evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
9 The enquiry under sub-paragraph (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. The requirements of the test are set out in the decision of Humphries & Anor v Poljak[1] where the majority of the Court of Appeal said:
“We think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s.(4)(d) when reliance is placed upon sub-s(17)(a) may be stated in the following terms: he is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[1][1992] 2 VR 129
[2] Humphries & Anor v Poljak (supra) at [140]
10 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[3]
[3] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
11 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[4]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[4][1998] 1 VR 702
12 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[5]
[5](supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29]
The issues
13 Counsel for the defendant informed the Court that this was a “range case” and that the consequences to this plaintiff do not satisfy the “very considerable” test.
Investigations
14 On 11 January 2007, an x-ray of the lumbosacral spine showed:[6]
“There is a slight curve convex to the left. Alignment normal in the lateral projection.
Disc spaces well preserved. No vertebral abnormality. Sacro-iliac joints are normal.”
[6]Plaintiff’s Court Book (“PCB”) 49
15 On 16 July 2007, a CT scan of the lumbar spine concluded:[7]
“No significant degenerative narrowing at the lumbar intervertebral disc spaces or facet joints. A moderate posterior disc bulge at L4-5 causes mild central canal narrowing but no foraminal narrowing or focal nerve root compression. Small disc bulges are also seen at L3-4 and L5-S1, however these discs do not cause direct nerve root compression.”
[7]PCB 51
16 On 14 May 2009, a CT scan of the lumbar spine concluded:[8]
“Disc degenerative change L3/4 to L5/S1 as described with broad based disc bulges and neural contact but no definitive neural compression.”
[8]PCB 52
17 Pelvis and right hip CT scan concluded:[9]
“Joint spaces of both hips are relatively well preserved with very minor superolateral loss of joint space and marginal osteophyte formation. Both hips are similarly affected with no preferential degenerative change on the right.”
[9]PCB 52
18 On 5 June 2010, an MRI scan of the lumbar spine concluded:[10]
“Minimal degenerative changes in the lumbar spine with mild bulging disc at L4-L5 level.”
[10]PCB 54
19 In February 2011, an upright multipositional MRI scan of the lumbosacral spine at L4-5 reported:[11]
[11]PCB 43
“Dynamic imaging: With extension and standing, the annular tear is more pronounced and the foraminal stenoses is exaggerated. On flexion there is little significant change.
…
CONCLUSION:
1. Mild multilevel disc bulges and annular tears.
2. Mild foraminal stenosis perhaps most marked at the level of L4-5 bilaterally, the foramina becomes crowded during extension and standing, however on these dynamic manoeuvres there is no direct nerve root contract demonstrated and no critical canal stenosis is seen.
3. Multilevel facet arthrosis, perhaps most marked the L4-5 bilaterally.”
The Plaintiff’s medical evidence
Mr Paul Ruljancic
20 In October 2014, Mr Ruljancic, urologist, confirmed that in October 2014, the plaintiff underwent a radical prostatectomy for the management of prostate cancer. He was confident that the plaintiff would not have prostate cancer recurrence.[12]
[12]PCB 47
Dr Gregory P Ward
21 Dr Ward, treating general practitioner, provided reports dated 28 February and 8 May 2008, 2 July 2009, 10 April 2014 and 10 March 2015.[13]
[13]PCB 13-28
22 Dr Ward confirmed that since 16 January 2007, he had treated the plaintiff in relation to his low back injury which he suffered when, while working as a truck driver, his truck hit a bump in the road and his seat collapsed. At the time of the accident, the plaintiff sought medical attention in Merrylands, where x-rays were taken, and he was treated with Panadeine Forte.
23 Dr Ward diagnosed a chronic back injury – mild canal stenosis and multi-level disc bulges – as a consequence of a faulty seat in the truck he was driving in January 2007. Dr Ward said the injury occurred as a consequence of jarring and jolting in the cabin which was transferred to his back as a consequence of a faulty seat. He said the plaintiff could work with restrictions in respect of correct seating, regular breaks and limited activity. It was his opinion the injury was permanent and likely to gradually deteriorate with aging and further use. He said there would be a time when the plaintiff had to cease driving on a regular basis. He thought the injury had stabilised, and doubted that there would be further improvement.
24 In May 2008, Dr Ward said the plaintiff consistently reported low back pain radiating into both buttocks and posterior/thigh hamstrings. He said in May 2008, his notes record that the plaintiff stated he was experiencing pain into his right leg. Dr Ward said the plaintiff was experiencing variable right sciatica after sitting for some time, which was likely to represent compression of the sciatic nerve roots on the right side due to the injury.
25 Dr Ward noted that the plaintiff had displayed high motivation to get better and resume driving. The time has shown that he is permanently disabled and is limited to one return trip to Brisbane per week, with frequent stops to relieve his back and leg pain. Dr Ward said the plaintiff wanted to continue driving but will have to set limits on lifting weights, loading and unloading and the amount of time he drives between breaks. He said the form of treatment would be massage and physiotherapy when his symptoms demand it.
26 In July 2009, Dr Ward reported that the plaintiff’s symptoms of low back pain and sciatica have remained. The severity of the pain depends on the extent of his driving and activity. The plaintiff manages his pain by limiting his driving, with exercises, acupuncture on an as-needed basis, and medication.
27 In April 2014, Dr Ward reported that he continues to see the plaintiff infrequently. His symptoms of low back pain and right-sided sciatica persist. He thought the plaintiff’s condition would deteriorate with age. He thought a time will come when the plaintiff can no longer drive on a regular basis.
The Medical Panel
28 On 19 September 2008, the Medical Panel, consisting of Dr David Eaton, occupational physician, and Mr Neil Cullen, orthopaedic surgeon, examined the plaintiff. The Panel concluded that the worker is currently suffering from an aggravation of lumbar spondylosis with referred symptoms to the right leg but without radiculopathy, relevant to the accepted lower back (lumbosacral spine) including any referred neurological symptoms to the right leg injury.[14]
[14]PCB 31
Mr Stanley S Schofield
29 In April 2010 and February 2015, Mr Schofield, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff reported low back pain with referred posterior right buttock pain radiating down the back of the thigh to the knee, variable symptoms from day to day. He is never free from pain and has occasional acute attacks of pain, causing him to rest. He complained of stiffness in the mornings, an inability to sit or stand for long periods and walk long distances. He reported being unable to garden. His symptoms were worse when arching his back, as well as bending forwards. He does no house maintenance or other repairs.[15]
[15]PCB 34-37
30 Mr Schofield diagnosed an L4-5 disc prolapse as a result of an injury to the lumbar spine, which occurred on 11 January 2007. He said the plaintiff’s current treatment needs included restriction in physical work, a regular exercise routine, and appropriate medication. His condition had stabilised. He thought the long-term prognosis was uncertain. The plaintiff should not engage in long-term truck driving in the future in view of the softening of the L4-5 disc on the erect functional views and the presence of a moderate bulge (equivalent to a prolapse). He said his current capacity for employment was restricted to the work he was doing at that time;[16] namely, a minimal amount of driving, mainly organisation of the trucks and no maintenance on the trucks. He said that there would be some restrictions in relation to his leisure activities.
[16]PCB 37
31 In June 2010, Mr Schofield arranged for the plaintiff to undergo an MRI scan of the lumbar spine. It was his opinion, after considering the overall investigational result and clinical signs, the level of the plaintiff’s pathology arose from the degenerate, bulging disc at L4-5. He said if symptoms increase over time, he may be a candidate to decompress and stabilise the L4-5.[17]
[17]PCB 38
32 In March 2011, Mr Schofield recommended an upright MRI scan. Based on the upright MRI scan, Mr Schofield said there was a greater degree of compression of the disc, especially affecting L4-5, which was seen to be the most severely degenerate disc on x-ray in the erect position. He said, with regard to the long term, there was a possibility that if the degenerate changes increase, even with light work, in the future, affecting mainly the L4-5, the plaintiff will be a candidate for a surgical intervention. He said he was also at risk of developing a further prolapse at L4-5, even doing light work.[18]
[18]PCB 40-41
33 In March 2015, the plaintiff was examined by Mr Schofield and complained of low back pain, and referred bilateral buttock pain, with the right leg pain being referred as far as the right knee, but the left buttock pain is not referred. He reported restrictions in bending and lifting. Aggravation occurs with coughing and sneezing. He takes between six and eight Panadol tablets per day. He is able to perform light duties.
34 It was Mr Schofield’s view that the clinical signs continued to show evidence of disc compression with limited movement and restricted straight leg raising bilaterally. Pain remains a prominent feature, requiring six to eight Panadol tablets per day. He said the plaintiff continues to have signs of lumbar disc irritation and possible prolapse.
The Defendant’s medical evidence
Dr David Barton
35 Dr Barton, consultant occupational physician, examined the plaintiff in February 2007 and December 2007, and provided reports dated 1 March, 6 December and 17 December 2007.
36 It was his opinion that the collapsed seat caused soft-tissue injury. There was no relevant pre-existing problem and the plaintiff should be encouraged to return to normal work.[19]
[19]Defendant’s Court Book (“DCB”) 3
37 In December 2007, he concluded there was no ongoing back problem related to the seat question. He believed the plaintiff had a capacity to undertake normal driving.[20]
[20]DCB 8
Mr Michael Dooley
38 In January 2014 and February 2015, Mr Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitor.[21]
[21]DCB 9-12
39 The plaintiff reported constant low back pain which varies in its intensity; he has good and bad days. He had learned to put up with the pain. At times, he had pain more in the coccyx, and noted pain in the back of his legs. He takes Panadeine Rapid for pain. Panadeine Forte led to complications. He reported difficulty sleeping because of the pain at times. He reported his attitude was “just get on with it”. He reported doing stretching and strengthening exercises.
40 Mr Dooley diagnosed a soft-tissue injury to the lumbar spine that involved aggravation of his underlying degenerative condition. He did not believe the plaintiff had any significant low back pain prior to the work episode. His ongoing symptoms are consistent with symptomatic degenerative disc disease of the lumbar spine. He said treatment should remain conservative and the plaintiff could self‑manage. Treatment would consist of a general exercise and fitness program and sensible modification of activity. It was reasonable for the plaintiff to take simple analgesia. Mr Dooley said the plaintiff did not require ongoing physical therapy and there would be no indication for surgical intervention. He did not expect the plaintiff’s orthopaedic condition to deteriorate. He described the plaintiff as a sensible and genuine historian. He did not believe there had been any excessive psychological reaction to his situation.
41 Mr Dooley said the plaintiff should avoid heavy physical work or work that involves a lot of bending, lifting and twisting. He thought the plaintiff was fit to continue in driving work. He said he had a physical capacity to carry out light physical work and clerical duties. He would not be able to carry out regular heavy physical work or work that involved a lot of bending, twisting or manoeuvring.
42 Mr Dooley did not believe the plaintiff was exaggerating his symptoms and there was no sign of abnormal illness behaviour on clinical examination.
The Plaintiff’s credit
43 There was no real challenge to the plaintiff’s credit. Counsel for the defendant was critical of the fact that the plaintiff was unable to recall matters put to him in a meeting with his former employer in August 2007; however, there was no evidence that the meeting occurred. Further, counsel for the defendant suggested the plaintiff was an argumentative witness who would not answer questions, wanted to ask questions, and could not remember disputes at work.
44 I took the view that the challenges to the plaintiff’s credit could not be made out. The plaintiff was asked about allegations. He said he had no recollection of the matters put, and there was no proof of those allegations. Accordingly, the plaintiff’s credit could not be challenged on that issue.
45 I did not find the plaintiff argumentative. He did seek to ask a question, but I did not infer that in any way detracted from his credit. He responded to all questions put to him in a clear and forthright manner. He was a man of few words. In fact, the plaintiff presented as a hardworking man who was keen to return to work. This is what he told the Court, as well as his general practitioner and Mr Dooley. He was described by Mr Dooley as a sensible and genuine historian who did not have an abnormal illness reaction. There was no psychological input. His symptoms were consistent with the diagnosis and the stated cause. Mr Dooley said there was no exaggeration shown. I formed the view the plaintiff was a credible witness.
Analysis of the evidence
46 Based on the medical evidence, I am satisfied the plaintiff suffered a compensable injury arising out of the transport accident. All of the medical witnesses accepted that the plaintiff suffered a low-back injury as a result of the transport accident.
47 The current medical evidence was explained by Mr Schofield and Mr Dooley. Mr Schofield described an L4-5 disc prolapse, based upon an upright MRI performed in June 2010. Currently, he said the plaintiff continues to have signs of disc compression with limited movement and restricted straight leg raising bilaterally. Pain remains a prominent feature of his presentation. He said the plaintiff continues to have signs of lumbar disc irritation and possible prolapse.
48 Mr Dooley diagnosed a soft-tissue injury to the lumbar spine that involved aggravation of his underlying degenerative condition. He said the plaintiff’s symptoms are consistent with symptomatic degenerative disc disease of the lumbar spine.
Pre-injury
49 The plaintiff deposed that he suffered one episode of back pain approximately ten years prior to the accident. It was relatively insignificant. He thought he was off work for a few days, but had no particular treatment and made a full recovery. Occasionally, he would have niggles in his back, but nothing of any significance. That is what he reported to the medical witnesses. I accept that prior to the transport accident the plaintiff was symptom-free.
50 Accordingly, I accept the plaintiff’s current condition is as a result of the transport accident.
51 It is necessary for me to consider the evidence as to the consequences to the plaintiff of the transport accident.
Work
52 It was not in dispute that the plaintiff had been a truck driver throughout his working life of approximately thirty five years. At the time of the transport accident, he worked as an interstate truck driver with Twentieth Super Pace Nominees Pty Ltd, which traded as ‘SCT Logistics’. His normal route was to drive three trips per fortnight from Melbourne to Brisbane and return, driving a B‑double combination. After the transport accident, he was off work until late February/early March 2007, when he returned on light duties. In late March 2007, he drove to Adelaide, and was thereafter able to continue to drive to a greater or lesser degree.
53 In February 2008, he resigned because of difficulties with his employer.
54 The plaintiff bought a truck, which he drove for a couple of months, and then employed a driver. He continued that business until 2010, when it went into liquidation. He then commenced another business operating two tipper trucks. He and his wife shared the administrative duties. He employed two drivers, and continued the business until approximately 2013. The plaintiff’s evidence was that he would fill in driving when one of the drivers was unavailable. He told the medical witnesses that he did not perform the maintenance on the trucks.
55 In 2014, the plaintiff obtained employment with Leighton Contractors. The work was local, did not involve any physical work and he did not have to drive very far. He stopped that work in late 2014 because he developed prostate cancer. Currently (for the past three weeks before trial), he is working for Leighton Contractors in a project, building a gas plant near Darwin. He works in the Northern Territory, and works a 28‑day period, working six days per week, then returns to Melbourne for one week. He works approximately ten hours per day and estimates he drives for only 25 per cent of the time. Each float requires a driver and passenger, and he works as the passenger. As the passenger, he has to “spot”; that is, get out of the cabin and assist with reversing or manoeuvring the float. That allows him to stretch and move around. The job is not permanent.
56 Counsel for the plaintiff submitted that as a result of the transport accident, the plaintiff’s capacity to find work is affected.
57 The current medical evidence as expressed by Mr Schofield and Mr Dooley is that the plaintiff can undertake light duties. Mr Dooley said he should avoid heavy physical work, or work involving a lot of bending, lifting and twisting. He said he could “continue driving”, but only had a physical capacity for light physical work, and clerical duties. He can return to driving, but with those restrictions. Mr Schofield said the plaintiff could not engage in long-term truck driving.
58 Based on the medical evidence, I accept that the plaintiff cannot return to pre‑injury truck driving.
59 The plaintiff’s evidence was that he was approached for his current job because of his good work record. He has to be careful with the work he does. He needs a good seat and there are limits on the driving he can do. He needs to be in control of those factors, which limits his employment options.
60 Whilst I accept the plaintiff is currently working and earning more than he has earned in the past, the work is in Darwin, in the Northern Territory. He is required to travel to and from Darwin and work four weeks on and one week off. The job is not permanent. The type of work he is performing enables him to get out of the cabin and assist with reversing or manoeuvring the float, which enables him to stretch and move around. I accept that the plaintiff has lost the capacity to undertake interstate driving, and is now limited to light duties with restrictions. I accept that the plaintiff’s capacity to find work is affected. These are consequences which I can take into account.
Pain
61 The plaintiff’s evidence is that he has constant low-back pain which varies in intensity. At times, he notes the pain down the back of his legs. He can have good and bad days. He has learnt to put up with the pain. This was supported by the evidence of his wife. She said her husband is not one to complain. She has noticed when he is in pain by the way he holds his hands and arms and struggles to get around. She said he struggles to get out of a chair. I observed this when the plaintiff was leaving the witness box; he was moving in a crouched position.
62 The plaintiff reported to Mr Schofield he has restrictions in bending and lifting. Aggravation occurs with coughing and sneezing, and he takes between six and eight Panadol tablets per day. The plaintiff reported to both Mr Schofield and Mr Dooley the level of pain he suffers. All doctors accepted the plaintiff suffered pain. Mr Schofield reported that pain remains “a prominent feature requiring six to eight Panadol tablets per day”. The plaintiff has reported constant ongoing low-back pain since the accident eight years ago. I accept the plaintiff has constant ongoing low-back pain which varies in intensity. He was consistent in reporting the level of pain he suffers to the medical witnesses. I accept that the experience of pain for the plaintiff over a period of eight years is a substantial consequence, and one that I can take into account.
Treatment
63 The plaintiff’s evidence is that he takes Panadol, nine tablets a day. He performs exercises, and has had to modify his activities in relation to heavy physical activity, and activity that involves bending and twisting. He has not consulted his general practitioner since 2008. However, the medical evidence is that his treatment should remain conservative and be self-managed. Mr Dooley said the mainstay of the plaintiff’s treatment is general exercise and a fitness program, and sensible modification of activity. He thought it reasonable the plaintiff take simple analgesia, and said he did not require formal physical therapy. He said there was no indication to consider surgical intervention in managing his lumbar spine. However, Mr Schofield said, in the long term, there is a possibility that if the degenerative changes increase in the future, affecting the L4‑5, the plaintiff will be a candidate for surgical intervention. He said the plaintiff was at risk of developing a further prolapse at L4‑5 even doing light work.
64 The plaintiff reported to the medical witnesses the way in which he copes with his pain and the level of medication he takes. The doctors commented upon his ability to self-manage his pain and perform his work duties. All doctors accepted that the plaintiff would suffer pain and discomfort. All medical witnesses accepted that his treatment should be conservative. No doctor suggested his treatment was inappropriate.
65 I accept the level of treatment the plaintiff has is appropriate and is the middle of the scale. This is a consequence I can take into account.
Activities around the house
66 The plaintiff’s evidence was that prior to the injury, he was active around the home. He helped his wife in the garden, mowed lawns, and performed painting or maintenance wherever required. He tries to perform activities and make light of his limitations, but is conscious of his back pain and aware of it, and must guard against the pain increasing. After the accident his wife was required to do all of the gardening and mowing the lawns. He was unable to help her. The house deteriorated because he was unable to maintain it. When they sold their home it required painting, but he was unable to do that, and could not justify employing a painter.
67 The plaintiff’s evidence was supported by the evidence of his wife. She deposed that when they sold their house, the plaintiff did little to assist with the move. She held the garage sales and lugged everything in and out by herself. She packed the house herself and did all the heavy lifting, with assistance from her youngest son. Further, she stated that one of the reasons for selling the house was because it was a double-storey home, their bedroom was upstairs, and the plaintiff struggled with the stairs. The plaintiff’s evidence was that he found it frustrating to sit and watch his wife doing things that he would like to assist her with. I accept that he is limited to activities he can perform around the house and this is a consequence which I can take into account.
Shopping
68 The plaintiff’s evidence was that his wife does the shopping. His wife’s evidence was that he assists with light shopping, but she now has to carry the heavier items. For example she carries the slabs of beer and puts them into the car. In the past, her husband would carry the heavier items. I accept that this is a consequence that I can take into account.
Sporting activities
69 The plaintiff’s evidence is that he cannot really run. He can walk for a kilometre or so, and does this to keep active. This evidence was supported by his wife. Her evidence was that the plaintiff can no longer kick a football or play cricket with their sons as he did before the accident. This was an activity that he enjoyed very much. I accept that this is a consequence which I can take into account.
Family activities
70 The evidence from the plaintiff’s wife is that the plaintiff is unable to bend over and play with their baby grandchild. He cannot pick up the baby if the baby is crying, or put the baby in the car-seat. These are activities that she must perform for him. He cannot lie on the ground to play with the baby, and is missing out on these activities. I accept that this is a consequence which I can take into account.
Sleeping
71 The plaintiff reported to medical witnesses that at times he has difficulty sleeping because of his pain. This was supported by his wife. Her evidence was that he is very restless at night and does not sleep well. It takes him longer to get comfortable and get to sleep. I accept that this is a consequence which I can take into account.
Stoicism
72 I accept that the plaintiff was stoical. He reported to Mr Dooley that he had adopted the attitude that he “just gets on with it”. Mr Dooley said the plaintiff presented “as a sensible and genuine historian”. Dr Ward noted that the plaintiff stated that he felt happier driving, even though it resulted in pain, rather than doing nothing and being bored. The plaintiff’s wife said he “was not one to complain”. It was my view that the plaintiff presented as stoical, he was not given to exaggeration and he gave his evidence in a most uncomplaining way. He was a man of few words. I took the view that he was prepared to endure a fair amount of pain as he went about his work and everyday activities. I based my impression on the way he presented in the witness box and the comments by Mr Dooley and Dr Ward. I accept the injury suffered by a stoical plaintiff is not to be viewed any less seriously merely because he manages to remain more active than might have been expected given the level of pain. I also observed the plaintiff leave the witness box. He was in a crouched position before he could stand straight.
73 I accept that the plaintiff has suffered the abovementioned consequences. Those consequences are supported by the evidence of the plaintiff, the medical evidence and the evidence of his wife. I accept that the plaintiff has had a physically active life, and to all intents and purposes, lives with his situation and gets on with it. I accept that he has continued working, but has had to modify his work activities to accommodate the constant pain.
74 The plaintiff is no longer an interstate truck driver, a job which he enjoyed and pursued for thirty-five years. He attempted to run businesses employing truck drivers. The first business went into liquidation because customers were not paying. A second business was commenced, whereby the company operated two tipper-trucks. Two drivers were employed. That business ceased in about 2013. The plaintiff then obtained work with Leighton Contractors for approximately six months in 2014 driving a float. The work was local and did not involve any physical work at all. That work ceased when he developed prostate cancer. Currently, he is employed with Leighton Contractors in a project building a gas plant near Darwin. He works in the Northern Territory over a 28‑day period, then returns to Melbourne for a week. He works long hours, approximately ten hours per day. He works as a passenger, which requires him to “spot”; that is, he has to get out of the cabin and assist with reversing or manoeuvring the float. This allows him to stretch and move around. The warm weather assists his back. However, the job is not permanent.
75 I am satisfied that the plaintiff was involved in a transport accident which, to this plaintiff, resulted in him experiencing symptoms of a physical nature. The consequences of his back injury have impacted upon his life as he knew it before the accident. He has suffered for eight years, and the medical evidence is guarded as to the future. I accept that the plaintiff’s back injury is long term.
76 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to him of his impairment can reasonably be described as being serious. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal, but rather attributed appropriate weight to each consequence in the light of the evidence.
77 I accept that the back injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as “at least ‘very considerable’” and certainly “more than ‘significant’ or ‘marked’”.[22]
[22]Humphries & Anor v Poljak (supra)
78 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for the injuries suffered in the transport accident on 11 January 2007.
79 I will hear the parties on costs.
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