Pucher v McMillan Body Repairs

[2009] VCC 93

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-08-03156

PETER PUCHER	Plaintiff
v
McMILLAN BODY REPAIRS	Firstnamed Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Secondnamed Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2009
DATE OF JUDGMENT:	16 February 2009
CASE MAY BE CITED AS:	Pucher v McMillan Body Repairs & Anor
MEDIUM NEUTRAL CITATION:	[2009] VCC 0093

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering only- whether consequences to the plaintiff are

serious

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Purcell	Ryan Carlisle Thomas
For the Defendant	Mr D Brookes SC with	Dibbs Abbott Stillman
Ms A Ryan
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant, in particular on 14 August 2003 (“the said date”).

2          The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.

3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

“(a) permanent serious impairment or loss of a body function.”

4          The impairment of body function relied upon in this case is the low back.

5          The plaintiff relied upon one affidavit and he was cross-examined. In addition, both parties relied on medical reports and other medical material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence

6          The plaintiff is currently aged fifty one, having been born on 9 March 1957. Having finished Year 10, he then completed an apprenticeship as a panel beater and he has worked in that occupation most of his working life.

7          From time to time due to the heavy nature of that work, the plaintiff has experienced some back pain, but nothing of major concern.

8          In 1994, the plaintiff attended a chiropractor, Dr Lorback, for aches and pains. In August 2002, he attended Dr Williams, chiropractor, complaining of a sore neck, right shoulder and right leg pain. He last saw Dr Williams in December 2002. These problems settled and the plaintiff could not remember having any time off work.

9          The plaintiff was involved in a transport accident in 1983 but suffered no ongoing injury.

10        The plaintiff initially worked for the first defendant between 1998 and 1999 and recommenced employment in July 2003. He worked for five years in the interim in managerial work until he got tired of that work.

11        On the said date, the plaintiff was working at the defendant’s shop in Blackburn, removing parts from a Mitsubishi Magna. Having removed the parts, he was then required to store them on the mezzanine level of the workshop. Lifting a bucket seat onto the mezzanine floor whilst standing on a ladder, the plaintiff developed pain in his low back and right leg (“the incident”).

12        By the following day, the plaintiff’s pain had increased. He was having back spasms and loss of control of his right leg. He attended a chiropractor, Dr Harby.

13        The plaintiff took only one day off work although he was continuing to have back and leg pain. The plaintiff would have reported the injury in the Injury Register at work if there had been a register available, but he did not do so after the incident because he was too ill.

14        The plaintiff first recalled having hurt his back in the incident much later than the said date because he did not know that he had suffered injury at the time.

15        On 20 October 2003, whilst working under a ute on a stand, the plaintiff developed an increase in his back and right leg pain. He saw Dr Harby that night. His condition did not improve and he ceased work on 21 October 2003.

16        The following day the plaintiff attended Maroondah Hospital with severe back and right leg pain. The records of the Hospital note approximately two months’ history of back pain which the plaintiff stated might have been precipitated by lifting car seats. Whilst there had been a recent exacerbation of his back pain, he denied such an exacerbation resulted from chiropractic treatment.

17        On 1 November 2003, the plaintiff attended the Eastfield Medical Clinic (“the Clinic”) where he saw Dr Cheung, who sent him for a CAT scan and referred him to Mr Brian Barrett, orthopaedic surgeon.

18        The plaintiff attended Mr Barrett on 11 November 2003. Mr Barrett arranged an MRI scan. He saw the plaintiff on several occasions, the last time for treatment in approximately July 2004. Mr Barrett discussed the prospect of surgery, but as the plaintiff’s symptoms had improved a little by the time of the last consultation, the plaintiff accepted Mr Barrett’s advice to continue with conservative treatment.

19        The plaintiff continued to see doctors at the Clinic until 27 November 2006. He has not received any prescription medicine since that time, nor has he attended any other general practitioner. He is no longer having any hands-on treatment as he understands there is no treatment available other than to be careful with his back and take painkillers when he needs to. He does exercises given to him by his doctor and he takes two to four Nurofen Plus tablets three times a week. There is no treatment that he has been offered that he has declined. There has been no period where he has not used medication on a regular basis.

20        In about July 2004, the plaintiff obtained employment with A1 Any Spray, a job which involved spraying small light fittings in ceilings and architectural type colour matching work. He left that job when the amount of work reduced.

21        In late 2005, the plaintiff commenced his present job at Style Rod Panels. His work involves customising prestige vehicles and also “run-of-the-mill cars” – any kind of general smash work. It is a vastly different job from his job with the defendant. It is not a “production-line mentality”. The current job takes as long as it takes. The plaintiff does just very light smash repairs. He does not do the same work as the other panel beaters who do the heavier work. He gets assistance with lifting and virtually has his own apprentice who is with him most of the time. He would not be able to cope with his pre injury duties.

22        The plaintiff is paid approximately $1,000 gross per week working 40 hours per week from 8.00 am to 4.30 pm.

23        The plaintiff’s current employer is aware of his back injury. The plaintiff copes with his current job reasonably most of the time and struggles through many other times. He is glad to see the end of the day because the pain in his back and leg increases “bit by bit” through work. When he gets home from work the plaintiff lies or sits down and he has to rest because he has “basically had enough”.

24        After getting home from work with the first defendant, the plaintiff used to be very active. He would be out and about or working on the house – dragging out a ladder or doing some painting.

25        The plaintiff has had a boarder living at his house for the last twelve months. He advertised for some help to clean his house. His boarder, Ms Li, maintains the household in exchange for rent.

26        The plaintiff was cross-examined about a number of entries in the clinical notes of his treating orthopaedic surgeon, Mr Barrett, to whom he was first referred on 11 November 2003.

27        The plaintiff agreed that by February 2004 he was making gradual progress. The pain was less and his right knee numbness had almost settled. He needed to be careful when walking down stairs and he was having occasional analgesia only. He disagreed he was sleeping well through the night. He agreed he was making gradual progress until he returned to work in July 2004, at which time he was suffering intermittent pain in his right knee and shin.

28        The plaintiff agreed that he was coping reasonably well in full-time work in March 2005. He agreed he then had some low back pain into his right thigh and knee but his previous right knee weakness had settled. He then disagreed that the weakness had settled, but said that he was only taking occasional analgesia and his sleeping was intermittently disturbed. He managed his own shopping, car driving and walking, and he was moving well without a limp.

29        The plaintiff went to Europe with his mother for four to six weeks in 2004. The plaintiff agreed he told his general practitioner, Dr Wong, on 1 July 2004 that he reported on his return from holiday “pain not severe whilst on the plane”. Whilst in July 2004 he was not pain free, his pain level was one to two out of ten.

30        In February 2005, the plaintiff reported his pain level was two to three out of ten. He agreed, as of mid 2005, he had considerably improved with prolonged conservative measures, he was managing light work and his doctors were recommending he not return to heavy work.

31        The plaintiff has never been free of back pain since ceasing work with the defendant. The back and leg pain has been at a continuous level since that time.

32        The plaintiff continues to have pain down his low back into his inner right thigh. The level of pain fluctuates. He still gets a feeling of numbness in his right leg. At times, the pain is like a burning sensation in his right leg which comes and goes depending on activity. The pain interferes with his ability to sleep. He has difficulty getting comfortable.

33        The plaintiff has increased pain if he sits or stands for too long and he finds it difficult to drive on longer trips. He has difficulty walking upstairs or on uneven ground because of leg pain and his leg feels unstable at times.

34        The plaintiff denied he is able to do most of his normal everyday activities but he just has to be a bit careful. He used to do a lot of things previously, including riding a bike, which he cannot do now. He does not go for trips to Castlemaine or Bendigo anymore. He had two bikes, including a Peugeot racing bike, which he put in the rubbish in about 2005. He last rode the bike probably in 2002 “now and then”. He has not tried to ride since then. He used to regularly go to the gym. However, since his injury he has not been able to.

35        As of the last eighteen months or so, the plaintiff does not do home maintenance anymore. He does very little, just small bits and pieces. He probably just tidies up a little bit. There are a lot of renovation jobs that need to be done. The carport roof and decking need work, and painting has to be done, but it is too demanding now for him to do.

36        The plaintiff would like to be able to assist his elderly mother more in maintenance around her home, but he is restricted because of his back pain. He does not do as much repair or maintenance work on cars outside his job as he used to.

Investigations

37        A CT scan was carried out on 3 November 2003. Dr Wong, general practitioner, noted the CT scan showed a relatively normal result inconsistent with the clinical finding of a lumbar disc lesion. Mr Barrett commented that he did not believe the report of a relatively normal scan.

38        An MRI scan carried out on 11 November 2003 showed minor disc degenerative changes at L1-2, L2-3 and L3-4, mild facet joint degenerative changes at L4-5 and L5-S1, adequate central canal throughout, and small right posterolateral and lateral disc protrusion at L3-4 compromising the right L3 foramen as clinically suspected.

39        The report of an MRI of 14 March 2008 noted that, since the previous study, the disc bulges at L2-3 and L3-4 have increased in size. However, the other findings are stable, including the appearance of the right L3-4 and left L4-5 foramina. No definite nerve root impingement was identified.

The Plaintiff’s Medical Evidence

40        The plaintiff attended Dr Lorback, chiropractor, on 11 April 1994 complaining of headaches, right shoulder and arm pain. On 28 August 1996, he again attended that clinic for evaluation and treatment of right-sided neck pain and right-sided low back pain which referred out to the right upper lateral leg.

41        Examination indicated the plaintiff was suffering from a disc injury, possibly at L4-5, or a facet joint strain. He was treated with massage, laser and spinal mobilising techniques. After two days’ treatment, it was assumed he was symptom-free. The plaintiff attended once in April 1997 complaining of a clicking sensation in the neck, right shoulder pain and low back pain referred down the back of the right leg. The low back symptoms on that occasion appeared more severe and were reported by him to be work-related. The symptoms were felt to be discogenic in nature.

42        The plaintiff last attended Dr Lorback on 29 December 1998 when he presented with acute low back pain with referral into both legs and groins.

43        The plaintiff attended Dr Williams, chiropractor, on 13 August 2002 complaining of right-sided neck and shoulder pain of some two months’ duration. He had consulted that clinic in April 2001 with a neck complaint. Dr Williams noted that the plaintiff having been subjected to recurrent episodes of lower back and neck pain; the long-term prospects of him continuing his current employment was a matter of conjecture. Dr Williams last saw the plaintiff on 21 December 2002.

44        The plaintiff presented to Dr Harby, chiropractor, at Maroondah Chiropractic on 15 August 2003 with a one-day history of acute low back pain following lifting a bucket seat out of a car at work. Treatment involved specific adjustments of the sacrum to restore sacroiliac joint function. On 22 August 2003, the plaintiff reported a 90 per cent improvement in his symptoms.

45        On examination on 20 October 2003, the plaintiff complained of developing low back pain and more significant right leg pain and an obvious limp. The plaintiff’s condition deteriorated to the point where he admitted himself to the Maroondah Hospital the following day.

46        Dr Harby continued to monitor the plaintiff’s condition and provide treatment to L4-5 as needed, such that by 16 January 2004, the plaintiff described his symptoms as being four out of ten and improving slowly. In March 2004, Dr Harby noted the plaintiff’s improvement had seen the plaintiff regain capacity to perform most tasks. Dr Harby considered the plaintiff was perhaps most suited to non-manual work with initial time restrictions.

47        The plaintiff has been a patient at the Clinic since 18 July 2003. On 1 November 2003, he presented to Dr Cheung complaining of the incident and a worsening of his condition on 20 October 2003. He was referred for a CT scan and was sent to Mr Barrett, orthopaedic surgeon. The plaintiff was treated conservatively with bed rest and Panadeine Forte.

48        Dr Cheung last reported on 19 February 2004, at which time the plaintiff reported his pain level had varied from one to two, up to three to four out of ten. The plaintiff was not working, although Dr Cheung noted that the plaintiff was able to walk and move more freely.

49        The plaintiff was conveyed by ambulance to Maroondah Hospital on 22 October 2003 with back and right sciatic pain. It was noted that he reported an approximate two-month history of back pain which might have been precipitated by lifting car seats. A recent exacerbation of pain over the previous two to three days following chiropractic treatment was noted. The plaintiff described low back pain radiating to the right buttock and anterior thigh to the level of the knee and also of an altered sensation several days before being seen.

50        The lumbosacral x-ray was unremarkable. On examination, the plaintiff was distressed by pain. Peripheral neurological examination demonstrated a mild reduction in right leg power and a reduced right knee jerk with a normal right ankle jerk.

51        Mr Barrett first saw the plaintiff on 11 November 2003. The plaintiff told him he first complained of low back pain at work some two to three months prior to that examination. Lumbar movements were significantly reduced on examination, all producing low back pain into the right buttock and groin. There was no significant spinal tenderness noted.

52        Having examined the plaintiff and seen the CT scan and the MRI scans of 2003, Mr Barrett considered the plaintiff had sustained a right L3-4 lumbar disc prolapse tightly wedged against the right L3 and L4 nerve root, causing right thigh weakness, numbness and back and right leg pain.

53        Re-examinations on 20 November and 11 December 2003 and 15 January 2004 revealed steady improvement of the plaintiff’s symptoms but continuing weakness of the right quadriceps muscle and absent right knee jerk reflex and hypesthesia involving the right L3 and L4 dermatone. By 15 January 2004, the numbness had settled but the weakness continued.

54        In Mr Barrett’s view, the plaintiff had sustained a significant and serious L3-4 lumbar disc prolapse in the course of his employment. Following a period of conservative treatment of rest and analgesics combined with avoiding bending and lifting, the plaintiff had made some moderate improvement.

55        Mr Barrett considered that if the plaintiff’s condition did not improve, the question of operative treatment needed to be considered.

56        Mr Barrett re-examined the plaintiff at the request of his solicitors on 22 March 2005. On examination, there was a reduction of lumbar movement producing some mild right low back ache.

57        The plaintiff told Mr Barrett that he was coping with his work fairly well without any loss of working time. However, he did experience some low back pain radiating into the right thigh and knee region, but his previous right knee weakness appeared to have fully settled. The plaintiff had an intermittent shooting pain down the right shin and required occasional analgesics only. Sleeping was intermittently disturbed and he managed his own shopping activities, car driving, walking, et cetera.

58        Mr Barrett considered that a lumbar disc prolapse, as indicated, would inevitably cause significant symptoms. He felt there had been a gradual reduction in the swelling of the disc prolapse and related inflamed nerve roots.

59        He did not think the plaintiff could return to heavy physical work, prolonged stooping and heavy lifting as the ruptured L3-4 lumbar disc had no power of healing or repair.

60        The plaintiff was re-examined by Mr Barrett on 4 March 2008, and a subsequent MRI was organised on 13 March 2008. The plaintiff told Mr Barrett of his current work, which was not physically heavy, and that he had managed it for two years without loss of time.

61        The plaintiff complained of low back pain radiating out to his right buttock and groin region, pain radiating into the right anterior thigh as far as the right shin associated with numbness in the same area and often accompanied by pins and needles, weakness of the right thigh muscle with muscle wasting and occasional giving way of the right knee.

62        He told Mr Barrett the symptoms were not improving and he was not able to run or walk fast, and certainly not play any active sport. He avoided heavy physical activities, could only manage gentle and slow gardening and required intermittent analgesics, not on most days.

63        On examination, there was a moderate reduction of lumbar spine movements producing low back pain radiating into the right buttock. Sensory testing revealed marked depression of sensation in the right L3 dermatome region, and slightly less in the right L4.

64        Mr Barrett noted the most recent MRI showed an increase of disc bulge at both the L3 and now the L4-5 level as well, the earlier film showing that the L4-5 and L5-S1 discs appeared to be normal in 2003.

65        He considered that the ruptured disc could produce ongoing symptoms and physical impairment in the future.

66        Mr Peter Battlay, orthopaedic surgeon, examined the plaintiff at the request of Cambridge Insurance for the purposes of an impairment assessment on 30 July 2007.

67        At that time, the plaintiff told him that there was not much pain in his back. His discomfort, when he had it, was at L2-3 level and spread to the right flank. Sometimes there was a bit of burning there. The plaintiff had no strength in his right leg and experienced shooting pain to the anterior thigh and anterolateral calf. He complained of permanent numbness at the front of the thigh. Occasionally he had pain spreading to the foot but not the toes.

68        The plaintiff complained of a problem with walking. He told Mr Barrett that he enjoyed house maintenance tasks and renovation but he had to be careful when doing it.

69        On examination, there was wasting of the right thigh muscle. There was three-quarters range of normal back movement, not particularly painful. There was sensory loss over the anterior aspect of the right thigh and absent knee jerk on the right in the presence of normal reflexes elsewhere.

70        In Mr Battlay’s view, the plaintiff did have a pre-existing back problem, albeit not of severe proportions. At the time of the incident he was performing significantly heavy work, and Mr Battlay accepted the employment was a significant contributing factor to the occurrence of a prolapse at L3-4.

71        Mr Michael Johnson, orthopaedic surgeon, examined the plaintiff on 9 May 2008. At that time, the plaintiff complained of right-sided low back pain that radiated into the inner thigh and then down the front of the shin to the big toe with associated paresthesia and numbness. The symptoms were worse with activity.

72        The plaintiff felt he was worse than two years ago. He could walk for a kilometre and could sit and drive for 60 minutes. He did his own shopping and housework although he had difficulty with gardening.

73        On examination, the range of lumbar movement was 60 per cent of normal. Mr Johnson viewed all investigations available and commented that the most recent MRI showed similar changes to the previous scan. In addition to this, the sizes of the disc bulges at L2-3 and L3-4 had increased.

74        In Mr Johnson’s view, the plaintiff’s problems related to an L3-4 disc prolapse which appeared to be related to the incident.

75        Mr Johnson noted the plaintiff described a moderate level of disability. Mr Johnson gained the impression that the continuation of work had been very dependent on the goodwill of the plaintiff’s employer and workmates. He thought the symptoms would persist for the foreseeable future and it was possible leg symptoms would deteriorate and surgical intervention may be required.

76        The defendant tendered correspondence from Mr Barrett to the plaintiff’s treating general practitioner. In his most recent correspondence of 7 April 2005, Mr Barrett noted the plaintiff had considerably improved with prolonged conservative measures and was managing light work only. In his view, the plaintiff retained some vulnerability due to his previous lumbar disc injuries. Mr Barrett recommended the plaintiff not return to heavy physical work in the future as this would certainly reproduce a recurrence of his disc lesion.

77        The plaintiff was examined by Dr Maurice Wallin for medico-legal purposes on 9 January 2004. In Dr Wallin’s view, there was no doubt the plaintiff had degenerative disc pathology at three levels of his lumbar spine, together with some lower level facet joint pathology of long standing, predating his employment. He considered the plaintiff’s symptoms related to the identified L3-4 disc protrusion comprising the right L3 nerve root and thus his reported symptoms correlated well with the demonstrable pathology and was not in any way exaggerated or embellished.

78        Dr Wallin, however, thought the period of employment with the defendant was too short to be able to be considered a significant contributing factor in the absence of a specific incident at work and with the plaintiff’s long history of back pain.

79        Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 16 August 2008. The plaintiff complained of ongoing low back pain and right lower limb pain. At times he noted a dead feeling in his right leg. He was able to walk a reasonable distance. A boarder helped him with tasks at home. Specifically, the plaintiff noted difficulty standing on a ladder.

80        Mr Dooley noted that the 2008 MRI scan showed the degeneration at L3-4 had evolved with time and he noted the presence of a right-sided disc prolapse at that level.

81        In Mr Dooley’s view, in the incident the plaintiff aggravated underlying degenerative disc disease of the lumbar spine. The plaintiff sustained a right disc prolapse at L3-4 on the background of natural occurring degenerative disc disease. Mr Dooley noted that, with time, the sensitivity of the plaintiff’s lower limb pain did improve.

82        Mr Dooley thought it appropriate for the plaintiff to continue a general low impact exercise and fitness program and continue regular walking. He considered the plaintiff was unfit for heavy physical work.

Findings

83        Whilst the question of whether there was a compensable injury on the said date was raised initially, and there was cross examination of the plaintiff in this regard, it was conceded by counsel for the defendant that the evidence about the mechanism of the injury was such that the plaintiff suffered a work-related injury in the course of his employment between the dates of the two incidents in 2003.

84        There was no real dispute that as a result of his work, the plaintiff has suffered an aggravation of pre-existing degenerative condition in the lumbar spine. There was no argument that the plaintiff’s condition was not organically based.

85        I accept that while the plaintiff had some back problems in the years leading up to the commencement of his employment with the defendant in 2003, last seeing a chiropractor for back pain in December 2002, he was engaged in full- time heavy work as a panel beater until suffering injury in the incident.

86        The issue, therefore, is whether the plaintiff’s impairment from the work injury in 2003 is serious; namely, whether the consequences to the plaintiff of the lower back injury when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than “significant” or “marked” and at least as being “very considerable” – s.134AB(38)(c).

87        The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441; see in particular Chernov JA at para 29.

88        The impairment must be permanent, in the sense that it is likely to last into the foreseeable future.

89        Counsel for the defendant relied upon observations made by Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 that it would ordinarily be difficult to conclude that the pain and suffering consequences were serious in circumstances where it is accepted that a plaintiff is physically capable of alternative employment unless there was some other evidence that showed he experienced significant pain or he otherwise suffered significantly from the injury.

90        Further, it was submitted that there was a similarity between the present case and that of Maloney v Muling, which is referred to in Humphries v Poljak. In the former case the Court of Appeal did not accept that a lumbar spine impairment was serious in circumstances where following a transport accident a young man was working full time with few limitations as a carpenter when there was no evidence that his condition was likely to deteriorate into the future such that his working capacity was likely to be interfered with.

91        Whilst I accept the submission of counsel for the plaintiff that each case must be looked at on its facts, and I agree that the observations of Chernov JA in Sumbul (supra) should not be treated as a general proposition that the ability to engage in full time work precludes a finding of serious injury, such observations should be given due weight.

92        In this case, given the nature of the duties the plaintiff is still able to perform, his ability to continue in his chosen trade as a panel beater, his history of full time work, without the need for time off, from July 2004 when he commenced spray painting through to the present, I am not satisfied that the consequences of his impairment are serious in relation to his work situation.

93        Insofar as his level of pain is concerned, the plaintiff himself conceded there had been improvements in his condition since early 2004. On various occasions he has reported any leg weakness had settled and he has rated his level of pain at as low as two out of ten.

94        When the plaintiff saw Mr Barrett for medico-legal purposes in March 2005, having last seen him for treatment in July 2004, the plaintiff was coping fairly well with work, he had some low back pain radiating into the right thigh and knee region but his previous right knee weakness appeared to have settled fully. He had intermittent shooting pain down the right shin and required occasional analgesics only. He could manage most activities without significant limitation apart from avoidance of bending and heavy lifting situations.

95        On 25 August 2005, the plaintiff reported a constant two out of ten pain level to Dr Wong. The plaintiff did not attend the Clinic again until on 27 November 2006, and he has not attended since that date.

96        The plaintiff presently complains of fluctuating pain down his low back into his inner right thigh, a feeling of numbness in his right leg and a burning sensation depending upon his level of activity. The plaintiff requires only over the counter medication in the form of Nurofen, which he takes three times a week.

97        The plaintiff has not undergone any form of medical or hands on treatment since November 2006 nor has he been prescribed any medication in relation to his back condition since before that time.

98        Whilst it is not determinative of serious injury, lack of treatment is a matter to be taken into account when assessing the consequences of an injury to the plaintiff: see Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, at paragraph 24.

99        The plaintiff is still able to engage in a wide range of activities.

100       He is able to do manual work around the house, albeit not of a heavy nature. Until a year ago he did not receive assistance with housework. I accept, with an ability to work full time as a panel beater, the plaintiff can still do many tasks around the house. He is able to drive and walk for considerable distances. He travelled overseas for six weeks in 2004 with little complaint as to plane travel.

101       Whilst the plaintiff no longer rides a bike, he in fact last rode a bike from time to time in the year before the incident. He can still do repairs on his own vehicles outside work, although not as much as he used to.

102       Taking into account the plaintiff’s present level of activity both in the workplace and domestically, and accepting that there has been recovery in the plaintiff’s condition to the extent he is not undergoing active treatment nor is he taking prescription medication , I do not accept that his impairment meets the test of seriousness.

103       In my view, this is a borderline case. Whilst I accept that the plaintiff suffers pain and disability that is not trivial and clearly causes him some problems, I do not accept that his level of pain and disability is serious.

104       I do not accept that the consequences to this plaintiff of his low back injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than significant or marked and at least being very considerable.

105       Accordingly, I dismiss the plaintiff’s application to bring proceedings for damages for pain and suffering.

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