Ramlagun v Builders Bargains Pty Ltd
[2013] VCC 1299
•27 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-12-04474
| ALAN RAMLAGUN | Plaintiff |
| v | |
| BUILDERS BARGAINS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2013 | |
DATE OF JUDGMENT: | 27 September 2013 | |
CASE MAY BE CITED AS: | Ramlagun v Builders Bargains Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1299 | |
REASONS FOR JUDGMENT
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Subject: Application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985.
Catchwords: Back injury – Pain and suffering only.
Legislation Cited: Accident Compensation Act 1985.
Cases Cited: Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 – Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12 – Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 – Hayden Engineering Pty Ltd v McKinnon [2010] VSCA 69.
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A. Mactiernan | Alessi & Kemp Solicitors |
| For the Defendant | Mr J. Batten | Minter Ellison Lawyers |
HER HONOUR:
Introduction
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 in the course of his employment with the defendant from November 2009 to about 15 June 2010.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. 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 is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
3 The impairment or body function relied upon by the plaintiff is to his back. For the plaintiff to succeed in this application, this impairment must have consequences in relation to pain and suffering which, when judged with other cases in the range of possible impairments, may be fairly described at the date of hearing as being at least very considerable and more than significant or marked.
4 The plaintiff relied upon two affidavits, dated 20 March 2012 (“the first affidavit”) and 7 May 2013 (“the second affidavit”), and was cross-examined. As is usual in these cases, the parties otherwise relied on medical reports and other relevant material in their joint court book.
Background
5 The plaintiff was born in Mauritius on 7 April 1982 and left school at the age of 14 due to impoverished circumstances. After leaving school, he worked as a printer operator, a labourer for a mechanic and helping his father and brother who were builders. The plaintiff married when he was 18 and has one son from that relationship.
6 The plaintiff and his wife arrived in Australia in May 2009. In late September 2009, the plaintiff obtained work as a packer. However, this was only for one and a half months and in late November/early December, he started working for the defendant.
7 The defendant imported container loads of goods from China, including sinks, baths, toilets, vanities and shower screens. The plaintiff’s job involved unloading the goods from the containers and delivering bathroom equipment to customers’ homes. The weight of the boxes that he had to lift varied from 35 kilograms to 80 kilograms. Most of the time, he did this job alone.
8 The plaintiff started to get pain in his low back in May 2010 and he reported this back pain to the defendant. On 15 June 2010, when he was placing a vanity basin weighing about 35 kilograms into the ute in the course of his employment, the plaintiff experienced severe pain in his back going down to his right leg. After this incident, the plaintiff went back to the warehouse and told the defendant what happened. However, he was advised to do the delivery and then come back to the warehouse. The plaintiff did not work on the following two days.
9 On 17 June 2010, the plaintiff attended the casualty section at the Northern Hospital and was given a certificate stating that he should not lift weights greater than 25 kilograms. He was informed by a doctor there that he had “just strained muscles” in his back and was given some painkillers.
10 On 18 June 2010, the plaintiff completed a claim for compensation and attempted to give the claim form and medical certificate to the defendant. The defendant refused to accept the documents and advised the plaintiff to leave the premises and told him that he did not want the plaintiff to work for him anymore.
11 In the weeks following the lodgement of the claim for compensation, the plaintiff mainly rested and did some light training at the gym. However, as the pain was not getting any better as had been expected, in July 2010, he saw Dr A.R. Desai, who organised a scan of his lumbar spine.
12 The CT Scan of the plaintiff’s lumbar spine taken on 21 July 2010 revealed a right sided L4-5 disc bulge with suspected right L4 nerve root compromise. Dr Desai advised the plaintiff of this result and prescribed Tramal, which the plaintiff took twice a day.
13 The plaintiff’s compensation claim was rejected on the basis that he was not a worker, as defined by the Act. He continued to suffer from back pain and to attend Dr Desai. As there were periods where the plaintiff’s back pain was very bad, Dr Desai prescribed Oxycontin and referred him to a physiotherapist, Mr Rodney Lincoln, at Plenty Road Physiotherapy Clinic.
14 The plaintiff attended Mr Lincoln on 31 August 2010 and again on 10 February 2011. However, as he did not have a Medicare Card or the money to pay for the physiotherapy, he had to manage as best he could.
15 In the meanwhile, the plaintiff’s solicitors had issued Magistrates’ Court proceedings. These proceedings were resolved on 24 June 2011 when consent orders were made, including a declaration that the plaintiff was a worker employed by the defendant at all relevant times.
16 Dr Desai referred the plaintiff to Mr ?? Han, a neurosurgeon whom he saw on 24 August 2011. Mr Han organised for a CT-guided transforaminal right L4/5 injection, which the plaintiff had on 31 August 2011. In mid December, the plaintiff obtained work with United Bond Fabric but due to his back pain he only lasted for two days.
17 The plaintiff currently lives with his partner, Sarah. He continues to suffer from back pain for which he takes medication prescribed by Dr Desai. He no longer has physiotherapy but attends the gym. He claims that this back injury has impacted his domestic, recreational, social and personal life.
18 On 20 October 2012, the plaintiff applied for Citizenship and for a partner’s visa. The visa was granted in November 2012 and he is now allowed to work. However, despite efforts by both himself and his partner to find him a job, he is presently unemployed.
Medical opinion
i) Report from the Northern Hospital
19 The report from the Northern Hospital, dated 21 February 2011, revealed that when the plaintiff went to the Emergency Department on 7 June 2010 he presented with;
“right-sided lumbar pain, present constantly for the previous two days, and intermittently for two to three weeks. He said he had worked lifting heavy appliances from 20–80 kilos in weight. He had worked there for six to seven months .In the previous three weeks he noticed lower back pain when lifting. He was usually fit as he did weight training. However, since lifting a heavy box the pain had been present all the time .As well as being in the lower back it shot down his right thigh and was sharp and stabbing in nature”. [1]
[1] Court Book, p. 82.
20 An examination was carried out and the diagnosis was of sprain of his lower back. He was prescribed Indomethacin and Paracetamol, together with physiotherapy, and discharged.
ii) Treating doctor
21 In his report of 9 August 2010, Dr Desai diagnosed the plaintiff as suffering from a right sided L4-5 disc prolapse with suspected right sciatica. While his opinion then was that the plaintiff was currently incapable of his pre-injury or alternative or modified duties, it was too early to determine how long his incapacity would last.[2]
[2] Court Book, p. 65.
22 On 12 May 2011, Dr Desai reported that the plaintiff still suffered from relapsing backache and that he had developed clinical depression as well. In his opinion, the plaintiff had a current work capacity for modified duties, lifting restricted to 10 kilograms with no repetitive bending, pushing, pulling. He was not capable of performing his pre-injury duties.[3]
[3] Court Book, p. 68.
23 On 14 February 2013, Dr Desai reported that the plaintiff “gets relapsing lower backache with tingling in right leg.”[4] His treatment was Tramal, 50mg twice a day as required and a self-help program which involved attending the gym and swimming. He was incapable for his pre-injury employment.
[4] Court Book, p. 69.
24 Dr Desai also described the plaintiff’s injuries as impacting on his domestic activities and said that his erectile dysfunction was “caused by anxiety from the long drawn out court case and the uncertainty over the eventual outcome regarding his health and future job prospects”.
25 The plaintiff’s prognosis was that:
“He has already recovered sufficiently to perform modified duties. Considering his young age and heavy muscular build, his chances for complete recovery are quite promising.”[5]
[5] Court Book, p. 70.
26 However, in his most recent report of 4 July 2013, Dr Desai described the plaintiff’s prognosis as being uncertain. The current condition he suffered from was “relapsing chronic backache, right leg pain and numbness (chronic sciatica) and anxiety/depression (adjustment disorder).”
27 With respect to the effect of the physical injury on the plaintiff’s domestic, recreational, social and personal activities there were:
· restrictions in daily household chores.
· restrictions in his hobbies body building and car driving.
· he could not socialise as he was isolated because of his unemployment status.
· he could not pray in bent/kneeling position because of relapsing backache.
· he could not enjoy sex, both because of backache and difficulty in erection.[6]
[6] Court Book, p. 72.
iii) Physiotherapist
28 In his report dated 12 September 2010, Mr Rodney Lincoln diagnosed the plaintiff as “having a moderate right lumbar disc derangement with resultant nerve root irritation, which had remained irritable, making any more than conservative physiotherapy inappropriate”.
29 Mr Lincoln described the plaintiff’s symptoms and pathology as being consistent with the stated cause. In his opinion, the plaintiff has had no capacity for work at this stage. The prognosis was that the plaintiff’s “symptoms would begin to settle shortly which would enable him to return to work on light duties that minimised bending, lifting and twisting activities”. He was unlikely to return to pre-injury duties for a further three months.[7]
[7] Court Book, p. 73.
30 On 11 February 2011, Mr Lincoln reported that the plaintiff represented on 10 February 2011 “complaining of a continued problem with intermittent deep ache lumbar spine and radiation into right lower limb as previous”. In his opinion, the plaintiff still had a moderate disc protrusion with nerve root irritation. This pathology continued to restrict him with regard to bending, twisting and lifting activities with subsequent inability to work on pre-injury duties. He also said, that:
“Considering it is now eight months post-injury, I believe his symptoms are unlikely to completely settle without operative intervention”.[8]
[8] Court Book, p. 75.
31 On 6 July 2011, Mr Lincoln reported on his physical examination as follows:
“Mr Ramlagun still had a moderate disc protrusion with nerve root irritation. This pathology continued to restrict Mr Ramlagun in regards to bending, twisting, and lifting activities with subsequent inability to work on pre-injury duties”.[9]
[9] Court Book, p. 77.
32 Mr Lincoln’s prognosis was that the plaintiff had ongoing problems with right facet joint impingement and nerve root irritation. He should improve with a short course of graduated physiotherapy and home exercises. However, he also said that:
“Considering the chronicity of his symptoms, I believe he requires specialist opinion with a view to operative intervention or injections”.[10]
[10] Court Book, p. 77.
iv) Treating Consultant Neurosurgeon
33 Mr Tiew Han reported to Dr Desai on 24 August 2011 that the plaintiff’s current presenting problems were:
“Low back pain which has improved since his injury, ongoing right sided leg pain radiating down the outer aspect of his right thigh into the back of his knee. He describes intermittent numbness of his right foot and the outer three toes. He reports sometimes feeling his ankle give way.”[11]
[11] Court Book, p. 79.
34 And that:
“He reports that he is unable to obtain an erection, and on questioning he feels this is pain-related rather than physiological.”[12]
[12] Court Book, p. 79.
35 Mr Han’s examination findings were that:
“On examination, he had great difficulty performing straight leg raises on the right side. He had to use his arm to lift his leg up. He didn’t appear to have any pain on forced straight leg raise. There was no specific weakness in his leg, although he was slow to mobilise when asked to perform dorsiflexion and plantarflexion for the right foot”.[13]
[13] Court Book, p. 80.
36 After viewing the CT scans of the of the lumbar spine, Mr Han diagnosed the plaintiff as having a lateral disc herniation on the right side with impingement on the L4 nerve root which was is likely to be the cause of his pain. Mr Han’s prognosis was that:
“It is difficult to predict what will happen to his pain in the future, but by and large this type of pain should settle within the next six months. Sometimes it may remain severe for several years, but this is unlikely to be more than five years. As far as work is concerned, I think he should avoid repetitive bending and twisting to his back and that he may have to look for a lighter job. At this stage he did not think he was fit enough to return to work.”[14]
[14] Court Book, p. 81.
Medico-legal reports
i) Mr Peter Battlay
37 In his report of 16 July 2010, Mr Peter Battlay diagnosed the plaintiff as having a right-sided L5‑S1 disc prolapse and radiculopathy, but no current sciatic nerve root irritation. Given the description of the plaintiff’s employment, he considered that this is a cause but also that his back problem might be related to his previous body building. The plaintiff was not fit for his pre-injury duties and needed analgesics and to perform stretching exercises with appropriate advice.[15]
[15] Court Book, p. 93.
ii) Mr Michael Shannon
38 On 30 November 2011, Mr Shannon’s diagnosis of the plaintiff’s injury was that he had a “right foraminal L4‑5 disc prolapse with radiculopathy. The prognosis was for the injury to improve, but it was unlikely to resolve”. [16]
[16] Court Book, p. 97.
39 Mr Shannon reported that the plaintiff had
· ongoing moderate restriction of movement with minor span. He had objective evidence of past radiculopathy in the form of muscle wasting.(2cm wasting of the right thigh and slight wasting of the lower leg)
· He remained unfit for work involving significant bending and lifting.
· He was unlikely to require surgical intervention.
· His condition had essentially stabilised.[17]
[17] Court Book, pp. 97-98 .
iii) Dr David Ho
40 Dr David Ho saw the plaintiff on 20 June 2012. From the history, he believed that the plaintiff had sustained a “likely intervertebral disc lesion reportedly L4-5 disc protrusion or prolapse in his lower back which was sustained from heavy lifting at work in June 2010.”
41 On examination, Dr Ho found that was no exaggeration of his clinical features by the plaintiff and he believed that the plaintiff was currently still suffering from an L4‑5 disc prolapse in his lower back, but that his symptoms had improved since the initial injury.
42 In his opinion, the plaintiff was not fit for his pre-injury duties and hours, which involved heavy lifting and manual handling. He could return to work with restrictions, including avoiding heavy lifting in excess of 10 kilograms, avoid bending and twisting, heavy pulling and pushing, working in awkward positions, regular change of posture able to return to pre-injury duties and hours.[18]
[18] Court Book, pp. 100-107.
iv) Mr Kevin King
43 In his report of 6 February 2013, Mr Kevin King accepted that the plaintiff had sustained an acute injury to his low back at work some time in May or June. The nature of the injuries was injuries to lumbar disc and associated ligamentous structured with some mild nerve root irritation.[19]
[19] Court Book, p. 113.
44 On examination of the plaintiff’s lumbosacral spine, Mr King found:
“Moderate limitation of low back movement by pain and spasm. Approximately half the normal range of all movements were present .Straight leg raising right 40 left 60.Mildly reduced ankle jerk on both sides No significant abnormality”.[20]
[20] Court Book, p. 111.
45 In the opinion section of his report, Mr King described the plaintiff as being:
“disabled to a mildly to moderately severe degree at present, should improve further with time in view of his relatively young age and the absence of significant radiculopathy, but he will always have to e careful with bending, lifting, and straining in the future.”[21]
[21] Court Book, p. 112.
46 The plaintiff was permanently unfit to go back to heavy unrestricted manual work. The prognosis was that the injury was probably stabilised, but it may improve. There was some moderate impairment of his domestic recreational, social and personal activities.
Mr Clive Jones
47 Mr Jones, an orthopaedic surgeon saw the plaintiff on two occasions. In his report of 2 March 2011, Mr Jones described his examination of the plaintiff as follows:
“He is a strongly built, well-muscled individual. He presented in a straightforward and genuine manner. He sat comfortably and walked normally. The back was mildly tender over the lower lumbar spine. The flexion range is something like 70 degrees. Leg raising on the right side 50 degrees, and 70 degrees on the left. There are no abnormal neurological signs in the legs”. [22]
[22] Court Book, p. 133.
48 With respect to the investigations, Mr Jones opinion was that the first CT scan dated 21 July 2010 showed minor swelling of the L4-5 disc on the right side. A repeat scan on 4 February 2011 suggested that the disc was still swollen but less than on the previous scan.
49 The diagnosis was that the plaintiff appeared to have a mild lumbar disc injury. His condition had not stabilised and Mr Jones expected further improvement to occur. The plaintiff could probably manage lighter work with lifting up to 15 kilograms and minimised bending.[23]
[23] Court Book, p. 134.
50 In his report of 30 July 2012, on examination Mr Jones noted that there had been substantial weight gain due to inactivity. There was a normal gait. The back was mildly tender in the lower lumbar area. He virtually full range of lumbar flexion. On the right side, the leg raising was to 70 degrees. There were no abnormal neurological signs.[24]
[24] Court Book, p. 136.
51 In Mr Jones’ opinion, “clinically the plaintiff’s back function had improved since he was last seen in February 2011. His leg pain had just about gone, and his back symptoms had improved. The diagnosis and prognosis was that the plaintiff appeared to have “mild and slowly improving discogenic back pain and further improvement would be experienced as time passes.”[25]
[25] Court Book, p. 137.
52 The plaintiff’s incapacity for work was not total. He was able to undertake lighter forms of employment where lifting was restricted to 10 kilograms. When asked for his opinion when and if the effects of the work-related injury would cease, Mr Jones’ opinion was that “the effects of the work-related injury were improving and will eventually cease”.[26]
[26] Court Book, p. 138.
Case for the defendant
53 While the defendant accepts that that in the course of his employment, the plaintiff suffered an injury to his lumbar spine their case, in essence, is that the plaintiff is a young man with a mild, slowly improving discogenic back. This injury is not permanent and, while the consequences may be described as being “marked and significant”, they do not meet the test of being “very considerable”.
54 The defendant relied on the decision of the Court of Appeal in Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, where the Bench was constituted by Ashley AJ and Beach AJA. In particular, the defendant relied on paragraph 43, where it was stated that:
“When judging pain and suffering consequences for the appellant by comparison with other cases, we consider it is relevant to look at the likely period for which those consequences will be experienced.”
55 In support of their case that the impairment consequences of the plaintiff’s lower back injury were not permanent, the defendant relied in particular on the following medical opinions:
· Mr Hans’ opinion in his report of 24 August 2011 that the plaintiff’s pain was unlikely to be for more than five years.[27]
[27] Court Book, p. 81.
· Mr Clive Jones’ diagnosis and prognosis in his report of 2 March 2011 that “the diagnosis appears to be a mild lumbar disc injury anecdotally, there has been substantial improvement both in back and leg pain levels and further improvement is likely. The workers condition has not stabilized and I would expect further improvement to occur”.[28]
[28] Court Book, p. 134.
· Mr Clive Jones’ opinion in his report of 20 July 2012 that “the effects of the work related injury were improving and would eventually cease”.[29]
[29] Court Book, p. 138.
· Mr Kevin King’s opinion in his report of 6 February 2013 that the plaintiff was “disabled to a mildly or moderately severe degree at present and should improve further with time in view of his relatively young age and absence of significant radiculopathy”.[30]
[30] Court Book, p. 112.
· The comment by Dr Ho in his report of 20 June 2012, that when asked about his progress to date Mr Ramlagun stated that he is definitely getting better.[31]
[31] Court Book, p. 102.
· That the CT scan on 4 February 2011 suggested that the disc bulge was still swollen but less than on the previous scan.[32]
· The plaintiff’s evidence in cross-examination of improvement.[33]
[32] Court Book, p. 133.
[33] Transcript, p. 39.
56 In his closing address, counsel for the defendant referred to Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12 where, at paragraph 77, Her Honour Dodds-Streeton AJ stated that:
“In addition to the consideration of the limitations imposed on a worker as a consequence of the injury, it is also relevant to consider what activities the worker is still able to engage in post injury”.
57 Counsel for the defendant also referred to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, where Ashley AJ observed:
“In assessing whether the impairment consequences of an injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to what inhibitions there are upon his activities. It is true that impairment is concerned with what has been lost, but the significance of what has been lost, which bears upon the seriousness of consequences, may be informed to an extent by what has been retained.”
58 It was submitted that, apart from the restrictions which the doctors had imposed on his work ability, the plaintiff had retained the ability to engage in similar activities in terms of consequences as prior to the injury. On a daily basis, he was highly active attending the gym, taking part in daily prayers and attending to shopping, cleaning and general activities and he could ride his Honda 1000 motorbike.
59 With respect to the plaintiff’s pain, it was submitted that on the history he gave to Dr Ho in June 2012, he took Tramal only as needed. This was every two to three days when the pain was severe.[34] It did not get to the level where he was in constant daily pain every day so that it restricted his activities.
[34] Court Book, p. 102.
Finding
60 Dealing firstly with the injury suffered by the plaintiff, I accept that on 15 June 2010 he sustained a L4-5 lateral disc protrusion in his lower back with right L4 nerve root compromise and a minor L5-S1 disc protrusion. This finding is supported by:
· the nature of the lifting work he was doing on that day (the vanity unit weighed 35 kilograms);[35]
[35] Court Book, p. 25.
· the symptoms he experienced shortly after the incident (severe pain in his back going down his right leg);[36]
[36] Court Book, p. 25.
· the CT scans of 21 July 2010 and 4 February 2011;[37] and
· the medical opinions (injury at L4-5 lumbar disc with nerve irritation Mr Lincoln ,Mr Han, Mr Shannon, Mr Ho and Mr Jones _ injury at L4-5 and L5-S1 -injury at L5/S1 Mr King and Mr Battlay (note Mr Battlay was the only medico who thought that the injury could have involved body building and I reject this as being contrary to the evidence and the majority medical opinion).
[37] Court Book, pp. 89 and 90.
Consequences of lower back injury
61 In Hayden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Maxwell P described the pain and suffering consequences of an injury as encompassing both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiffs physical capabilities (including capacity for work) and enjoyment of life.
62 I found the plaintiff to be a credible witness, as was illustrated by the fact that he told the doctors that there had been an improvement in his condition since the accident.[38] This finding as to the plaintiff’s credibility is also supported by:
[38] Court Book, pp. 41, 96 and 102.
· Mr Ho’s findings on examination that he presented his history in a straight forward manner and there was no exaggeration of his clinical features.[39]
[39] Court Book, p. 103.
· Mr King’s description of the plaintiff on examination as presenting as “a tall muscular very well built earnest rather intense but seemingly straightforward young man”[40]
[40] Court Book, p. 111.
· Mr Jones, in his report of 2 March 2011, where he described the plaintiff as being a strongly built, well muscled individual and as presenting in a straightforward and genuine manner.[41]
· The fact that there was no surveillance material relied upon by the defendant as showing a level of activity which was inconsistent with the plaintiff’s evidence as to what he could still do.
[41] Court Book, p. 133.
63 Having accepted the plaintiff as a witness of truth, I accept his evidence and the contents of his affidavits with respect to his pain and the disabling effect of the lower back pain. The plaintiff deposed that:
· his work capacity has been reduced as he is medically restricted to lifting 10 kilograms.
· while prior to his injury he enjoyed going for long drives in his car on his days off, he is now limited in his driving due to increased back pain after about 45 minutes.
· he prefers to ride his Yamaha motorbike as he finds this less painful. This is because on the motorbike he can sit upright and stretch out his arms.
· he likes cooking and does this often but finds it a problem for his back if he stands in one spot too long.
· while he helps around the house with cooking and housework, he has difficulties with vacuuming or mopping.
· he can walk up to one or two kilometres, usually about three times a week. This increases his back pain but he has been advised by his doctor to keep exercising.
· there have been occasions when he has been walking and his right ankle has given way.
· he used to enjoy running and ran about five kilometres a week. Since the accident he has tried to run on a few occasions but had to stop because he was going to fall over and running increases his pain.
· he tries to keep fit and attends the gym every day. Sometimes he attends for one hour, other days he will attend for two or three hours.
· whilst in the gym, he concentrates on his upper body doing bench presses, shoulder presses, triceps and bicep curls.[42]
[42] See also Transcript pp. 25-26.
· due to his back problems, he can no longer do squats with weights or dead lifts.[43]
[43] See also Transcript pp. 25-27.
· he notices that when he does leg extensions his right leg is weaker than his left and it sometimes feels as if it is going to give way when he is walking.
· he has become stressed and nervous because of his back pain and inability to work.
· After his injury sexual relations were difficult because of his back pain. In October 2011 he saw Dr Desai about erectile dysfunction and he was given tablets. While he is still having a problems with sex the problem, is not as bad as it was two years ago.
· Dr Desai prescribes him a box of Tramal every month for back pain. While he cannot manage the pain without them, he tries to keep his intake of Tramal to a minimum because they are addictive and he does not believe that they are good for his body. He also takes 30-40 Panadol a month and uses Rapid Gel on his back.[44]
[44] See also Transcript pp. 29, 30 and 31.
· Before the injury, he slept 6-8 hours straight at night. However, he has not had a good night’s sleep since he injured his back. He sleeps two to three hours and then wakes again in another hour or two (or at the most three hours). When he wakes with back pain, it sometimes takes him a long time to get back to sleep.
· while initially after the injury, he could not attend the mosque to pray every day as kneeling was painful, he can now manage most days but he does not bend over too much.[45]
[45] See Transcript p. 34.
64 While the defendant submitted that these consequences did not meet the test of being very considerable, I am satisfied that they do. I consider that given the plaintiff’s lack of qualifications and English skills, it is significant that the majority medical opinion is that he permanently unfit to go back to heavy manual work.[46]
[46] See in particular Mr King, Mr Ho and Mr Shannon
65 With respect to the plaintiff’s experience of pain, I accept that, although there has been an improvement in his condition, he still needs to take Panadol everyday. In addition that, while he restricts his intake of Tramal to 3-5 times a week, this is largely due to his concerns about what it is doing to his body and his fear of addiction.[47]
[47]Aff p40 T 34
66 With respect to the fact that he continues to attend the mosque to pray, I accept his evidence that he does not bend to the same extent than other people at the mosque. In addition, that when he tries to pray normally, the pain is still the same.[48]
[48]Transcript, p. 34.
67 I also consider it is a significant consequence of his injury that the plaintiff has not had a good nights sleep since the accident. In addition, given his relatively young age, I accept that although his sex life has improved, it is unsurprisingly a matter of some concern to him that there are still problems.
68 With respect to the disabling affect of his pain, I accept that the plaintiff’s gym regime had been adversely affected by his lower back injury and that he can no longer do exercises that involve his lower back such as dead lifts, sit ups and squats.
69 This is consistent with what the plaintiff told the doctors about his gym work. He told Mr Ho that he was a champion body builder but now he did body building more for fitness and he does exercises for his upper body. He has not been doing any running, squats or dead lifts.[49] The plaintiff told Mr Han that he attends the gym but was unable to do leg or abdominal exercises, focussing on some limited upper body work only.[50]
[49] Court Book, p. 101.
[50] Court Book, p. 80.
70 I accept that the plaintiff now attends the gym on a daily basis for weight control and upper body strength. In addition that part of his reason for attending the gym is that he gets depressed sitting at home and spends part of his time talking to friends there.[51]
[51] Transcript pp. 25-27.
71 However, the most significant consequence of the plaintiff’s injury has to be the affect it has had on any ambition to continue his body building career. In his first affidavit, the plaintiff stated that:
“Since I was 16 years old I completed in body building competitions. I loved body building and trained every day. I have competed in about 15 competitions. In 2008, I came second in the Mr Mauritius Body Building & Fitness Grand Prix for the 80 kilogram division. In 2009 I won Mr Republic National Body Building Championship for the 90 kilogram division and came second in the overall Mr Republic 2009 National Body Building Championship.”[52]
[52] Court Book, p. 30.
72 The plaintiff described his competition results as being great honours for him and he was obviously proud of his abilities. He said that he had planned to go on training in Australia and then complete in the Mr World event or the Mr Olympic competitions. He fears his dreams of competing in these competitions are now over.
73 This would appear to be a realistic fear given the medical restrictions on his work capacity especially heavy work and repetitive lifting.[53] In this respect, I note Mr King’s opinion that even with improvement the plaintiff would always have to be careful with bending lifting and straining in the future.[54]
[54] Court Book, p. 112.
The issue of permanency
74 For the plaintiff’s impairment to be permanent it must be likely to last into the foreseeable future. In his report in Feb 2013, Dr Desai considered that the plaintiff’s chances of a complete recovery were quite promising. However, in his most recent report, given the relapsing nature of the plaintiff’s chronic back condition, he described the plaintiff’s prognosis as uncertain.[55]
[55] Court Book, pp. 70 and 72.
75 Mr King was of the opinion that further improvement may occur but thought it more probable than not that the plaintiff was stabilised at the present level.[56] His opinion was not inconsistent with that of Mr Shannon’s whose prognosis was that the plaintiff’s injury will improve but that it was unlikely to resolve.[57]
[56] Court Book, p. 113.
[57] Court Book, pp. 95-99.
76 When Mr Shannon examined the plaintiff in November 2011, he found 2 centimetre wasting on the right thigh and slight wasting on the lower leg. This finding is consistent with the plaintiff’s evidence that he felt that his leg was “becoming skinny”. [58] In addition, with his evidence that the right leg feels weaker and sometimes he feels like his right foot is going to give way.
[58] Transcript, p. 30
77 I accept that the impairment to the plaintiff’s lower back will persist in the foreseeable future and is permanent. In making this finding, I accept the prognosis as to the future of the plaintiff’s impairment given by Mr Shannon and Mr King rather than more optimistic one, given Mr Jones (that the effects of the work related injury were improving and would eventually cease) and Mr Hans (the plaintiff’s pain was unlikely to be for more than 5 years).
78 Mr Jones stated in his reports that there were no neurological signs in the plaintiff’s legs. This comment is inconsistent with Mr Shannon’s finding of subjective signs of muscle wasting, which finding I consider to be consistent with nerve root compression. While Mr Hans’ opinion was that the plaintiff’s pain was unlikely to be for more than 5 years it was prefaced with the comment that “it is difficult to predict what will happen to his pain in the future”.
79 Accepting Mr Shannon and Mr King, I am satisfied on the balance of probabilities that the plaintiff’s impairment is permanent. I find that the plaintiff has suffered pain and suffering consequences to his lumbar spine which are, when judged by comparison with other cases in the range of possible impairments, may be fairly described as more than significant or marked and as being at least very considerable. Consequently I grant the plaintiff leave to bring proceedings at common law to recover damages for pain and suffering.
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