Ridgewell v Latrobe Regional Hospital

[2010] VCC 1963

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-09-04619

RICHARD RIDGEWELL	Plaintiff
V
LATROBE REGIONAL HOSPITAL	Defendant

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6 & 9 August 2010
DATE OF JUDGMENT:	18 August 2010
CASE MAY BE CITED AS:	Ridgewell v Latrobe Regional Hospital
MEDIUM NEUTRAL CITATION:	[2010] VCC 1963

REASONS FOR JUDGMENT

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Catchwords: Serious Injury application; pain and suffering damages only; whether ongoing symptoms result from compensable injury or intervening aggravating event; whether consequences from compensable injury meet test as sufficiently “serious”; s 134AB Accident Compensation Act 1985.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Thompson	Maurice Blackburn,
With Mr H. Roberts	Traralgon
For the Defendant	Ms K. Galpin	Hall & Wilcox
HER HONOUR:

1 Mr Richard Ridgewell was struck in the back by a patient trolley while working as a nurse in the defendant’s Emergency department on the night of 3 April 2004. He seeks leave to bring a claim for damages in respect of injury he suffered in that incident. To obtain leave he must satisfy the court that he suffered a “serious injury” within the requirements of s.134AB of the Accident Compensation Act 1985 (“the Act”).

2          His case is that he suffered an aggravation of previously asymptomatic spondylosis of his lumbar spine, or lumbar disc disease, which has resulted in serious permanent impairment of the function of his lower back[1]. His claim is limited to one for pain and suffering damages, as he has continued to work and is not currently losing earnings.

[1] Relying on sub-part (a) of the definition of “serious injury” in s 134AB (37).

3          The defendant does not dispute that on the night of 3 April 2004 there was an incident in which Mr Ridgewell was struck by a patient trolley, but it does not concede that the incident resulted in any lasting injury. The defendant argues:

(i)	that as the plaintiff took no time off work and sought no medical treatment for 2 years after the incident, it can be inferred that there was no significant or lasting injury sustained in that incident;
(ii)	that any significant symptoms in his lumbar spine from which the plaintiff now suffers result from a separate and intervening injury that occurred in about April 2006 as a result of his private activities; or
(iii)	even if all of his ongoing back symptoms and limitations result from the compensable injury, the consequences are not serious enough to satisfy the test of being fairly described as “more than significant or marked” and “at least very considerable” when compared with other possible impairments[2].

[2] S 134AB (38) (c)

The plaintiff’s background and personal circumstances

4          Mr Ridgewell is now aged 50. He was born in the United Kingdom, and his main training and career has been in nursing, in the UK and USA. He had training and experience in several specialised aspects of nursing, including orthopaedics and intensive care, and had also worked in executive positions relating to sales and education about medical products, and co-ordinating and escorting medical evacuations or transfers by airlines.

5          He migrated to Australia with his wife and two children in December 2003, under the government’s Skilled Migration Program, to take up a position with the defendant in its Emergency department as a Division 1 Registered Nurse. He commenced that employment in January 2004, working a full “EFT” being ten shifts of eight-hours per fortnight. His wife is also a trained nurse who now works at a private hospital in Traralgon.

6          Mr. Ridgewell says – and it is not disputed – that his general health before coming to Australia was excellent. He had no prior significant medical problems, and in particular no prior back problems. He says that he has always been conscious of the risk to his back in nursing duties, and has always endeavoured to avoid spinal injury by being careful in his posture in carrying out his duties. He kept fit. As well as carrying out various domestic tasks and gardening, his hobbies included rebuilding engines of boats and cars, and he engaged in a number of sports, including water-skiing, snow- skiing, sailing and riding motor bikes.

7          Mr Ridgewell presented as an honest witness, and although his affidavits contained some misleading time frames, I regard his evidence overall as reliable and not exaggerated when he describes the incident in question or its ongoing effects on him. My impression is that he is a sensible and well motivated man, who has looked after his own health and fitness, and who on moving his family to Australia has continued with his life and lifestyle and adapted sensibly to what circumstances or changes have arisen, including to the effects of his injury.

The incident

8          At about 10pm on 3 April 2004, Mr Ridgewell was in a cubicle in the Emergency department, inserting a cannula into a patient’s arm to take blood, when he was struck on the right side of his back by an empty patient trolley. The trolley, which weighed at least 80kg, was pushed through the curtained partition from the adjoining cubicle by a doctor unaware of his presence. Mr Ridgewell says, and I accept, that he was kneeling at the time, which he usually did to lower himself without exposing his back to risk by leaning unsupported or stooping from a standing position. He is a tall man and would need to lean or as he says “hang” forward from a standing position to take blood from a patient who was lying on a bed.

9          The blow from the trolley was forceful enough to push him forward a couple of feet. He describes feeling a “sideways shunt” of his lower spine[3]. He points to a position above waist height on the right side of his back as where the trolley struck him. He called this his “lumbar area” in his evidence and on the incident report form he completed at the end of the shift.

[3]             Affidavit of 12/5/09, paragraph 6

10        Notwithstanding that in his Workcover claim form, lodged more than two years later, he states that he was “sitting” when struck, and is recorded by Professor Wallin as saying that he was bending down, I am satisfied on the balance of probabilities that he was kneeling as he now describes. I am satisfied of that from his affidavit and oral evidence when tested on cross-examination, and from the fact that in the incident report form which he completed at the end of the shift he stated that he was kneeling[4]. I do not regard his credibility as undermined by these variations, nor by what I assessed to be surprise and confusion when the claim form stating “sitting” was put to him.

[4]             Exhibit C, dated 4/4/4 at 6.15am

11        Mr Ridgewell says, and I accept, that when he was struck and thrown forward he felt immediate pain in his back severe enough to cause him to cry out. This brought the doctor who had pushed the trolley into his cubicle to check what had occurred. This doctor apparently examined his back to check that he was alright. I accept that he felt considerable pain at the time, but that after a short rest it eased enough for him to feel able to resume his duties and complete his shift.

Subsequent events, treatment and consequences

12        Mr Ridgewell was rostered off for the three days following the incident and then resumed work at his full duties. I accept his evidence that his back pain from the incident had not fully resolved, but he believed it would settle with time, and having been only a few months at his job he did not want to take time off for an injury. He did not seek medical treatment or lodge a Workcover claim at that time.

13        He says, and I accept, that the back pain did not fully resolve as he had hoped. I am satisfied that he experienced ongoing pain in his back for which he took “over-the-counter” painkillers and anti-inflammatory medication when he felt he needed them, and also that he did exercises to stretch his back and relieve pain. He was knowledgeable enough from his orthopaedics training and nursing experience to adjust his activities to minimise movements that would cause increased pain.

14        A year or so later he reduced his work roster to 0.8 “EFT” or one shift fewer per week. Although the defendant argues that I should not be satisfied that this was a consequence of his back injury as he gave the employer no reason, I accept Mr Ridgewell’s evidence that he decided to reduce his shift-load because it enabled him more rest between shifts to recover from pain but in particular from tiredness due to interrupted sleep, and because the net loss of income was not significant to him.

15        It was not until late April 2006 that Mr Ridgewell sought medical treatment in respect of his back pain, and shortly afterwards he lodged a Workcover claim. I am satisfied that at that stage he was suffering from a significant exacerbation of his back injury.

16        When he presented to Dr Steer of the Breed Street clinic on 27 April 2006 he complained of sitting aggravating pain, he reported no sciatica, but resting and taking Nurofen and Voltaren for the previous 4 days, and his lumbar movement - flexion and extension- was restricted. He was prescribed Voltaren suppository and given a Workcover certificate of incapacity, and referred to a chiropractor.[5] He did not see the chiropractor, but did attend for three physiotherapy sessions.

[5]             Exhibit 2, entry for 27 April, 2006

17        On next presentation he was seen by Dr Omifolaji who describes that “he came in holding his lower back area and not sitting down during the consultation”[6]. Dr Omifolaji prescribed Panadeine forte and Voltaren tablets and suppository, and requested a CT scan of his lumbar spine, and provided Workcover certification of incapacity for work from 6 – 19 May [7].

[6]             Exhibit D – in report to defendant 26/5/06 and referral letter to Mr Wilde 14/6/06

[7]             Exhibit 2 – entry for 8 May 2006

18        The CT scan is reported as showing (relevantly) as follows. At L1-2 level, the disc shows mild broad-based bulging but no focal herniation and the central canal and exit foramena appear adequate. At L4-5 level there is a broad shallow disc bulge in the right paracentral and foraminal region, which causes narrowing of the right lateral recess and exit foramen but without definite nerve root compression and the central canal remains adequate, and there is bilateral facet joint degenerative change at this level. At L5-S1 level, there is a small cental disc protrusion, which contacts the anterior aspect of the thecal sac and both traversing S1 contacts nerve roots but the central canal remains adequate and no nerve root compression seen. Some facet joint prominence is noted at this level. The conclusion reported was “mild degenerative disc changes as described and with facet joint arthropathy bilaterally at the lower two levels. However, no likely nerve root compression detected.”

19        When next seen by Dr Omifolaji, on 19 May, Mr Ridgewell said he was improving and agreed with a return to work plan. On 31 May he told his doctor he was much better and ready to resume normal duties, and an examination found good mobility in his lumbosacral joint. I accept his evidence that it was at his request that he was certified by his doctor as fit to return to normal duties.

20        I do not have the precise dates but he had approximately a month off work, and another couple of week of modified duties, before returning to full duties at 0.8 EFT – 8 shifts per fortnight.

21        On 14 June he saw Dr Omifolaji and discussed rejection of his WorkCover claim (which I infer was as a result of Dr Davison’s opinion that his incapacity was not related to the 2004 trolley incident). They discussed seeking a second opinion, from either Mr Michael Johnson or Mr Peter Wilde in Melbourne. A referral letter to Mr Peter Wilde was made. On cross- examination Mr Ridgewell said that this had been suggested by his solicitor, but I am satisfied from the fact and content of the referral letter that the doctor also considered that the seeking of an orthopaedic specialist’s opinion was warranted from a clinical treatment perspective.

22        When seen by Mr Wilde in August 2006, his complaints were of pain in his back being the main problem, but also pain down the left leg to the calf and from time to time when the pain was very bad an aching soreness in the left calf. At that time Mr Ridgewell was doing his own exercises and using Panadeine Forte when his pain was very bad. On examination Mr Wilde found the plaintiff a genuine and reliable historian and witness to the clinical examination. Posture was normal, there was tenderness over the L4/5 motion segment, and movements restricted because of pain, but Mr Wilde could not on examination detect any neurological abnormality. He reviewed the CT scan which showed mild degenerative changes of the facet joints with bulging of the discs at L4/5 and lumbosacral area but no disc prolapse or evidence of nerve root compression. Mr Wilde considered the most likely diagnosis was discogenic back pain, but because it was difficult on the basis of the CT to be certain of the anatomical pain generator, he recommended an MRI scan.

23        Funding approval from WorkCover was delayed, but was eventually granted and an MRI performed in November 2006. It is reported as showing at L1-2 a right-sided disc protrusion extending into the foramen, but no significant appreciable nerve root compression. There was minor disc disease and facet arthropathy down to L3/4. At L4/5 there was no significant posterior disc bulging but there was minor facet arthropathy. At L5-S1 there was no significant posterior bulging of the disc, there was mild facet arthropathy. On the left there was contact without compression of the exiting L5 nerve root. The conclusion reported was that there are some degenerative changes involving discs and facets but without significant canal compromise or nerve root compression. There was contact without compression of the exiting L5 nerve root.

24        Mr Wilde did not see the plaintiff again after the MRI was conducted, and has never discussed the results with him.

25        Apart from contact with Dr Omifolaji by telephone to obtain a copy of the MRI report some months later, the plaintiff has sought no further medical treatment in respect of his back condition.

26        I accept Mr Ridgewell’s explanation of not seeking further medical treatment, namely that he finds over the counter medication, especially Nurofen and Voltaren rapid as effective as prescribed medications, and is aware from his nursing background that his condition would need to be considerably worse before surgery would be contemplated, and also that with his medical knowledge and hospital contacts he can obtain informal advice to deal with symptoms. However, I infer from the absence of further medical attendances that he has not experienced as bad an exacerbation of his symptoms as that of April/May 2006 since. He has told all recent examiners that he has not experienced any pain or numbness in his leg or calf for more than two years. He has reduced his number of shifts in his employment with the defendant, but has not needed certification for incapacity for work since June 2006.

Whether intervening aggravation

27        The defendant argues that there was an intervening aggravation of the plaintiff’s back condition, unrelated to his employment, which caused his symptoms to escalate in April and May 2006, and to reach their present level, and that the trolley incident is no longer causing his symptoms. It relies in particular on the opinion to that effect of Dr Davison, and the fact that the plaintiff did not attend for medical treatment in respect of his back condition until late April 2006 .

28        I accept that when he sought medical treatment in late April and May 2006, Mr Ridgewell was in much more pain and discomfort than he had been over the intervening two years since the incident.

29        When he attended Dr Steer on 27 April 2006 he is recorded as complaining of low back pain over the last 4 weeks, and said that 2 years ago he was struck in the back by a trolley while working at the hospital. The doctor issued a Workcover certificate, indicative of accepting the connection with the earlier work injury. When the plaintiff first saw Dr Omifalaji ten days later, the history is of chronic low back pain connected with being hit in the lower back by a trolley at work about 2 years earlier, and that doctor also accepted the connection and wrote a Workcover certificate for his then incapacity. In reports[8] Dr Omifalaji’s opinion is that the changes in his spinal joints must have been progressive over the years, and it appears that the onset of symptoms was triggered by the injury from the trolley.

[8]             Exhibit D

30        Mr Ridgewell said in his first affidavit that there was a marked increase in his lower back pain after bending doing gardening on an occasion in early May 2006. He has elsewhere described that his lower back pain became considerably worse over a period of a month or so leading to his seeking medical treatment, which according to the clinic’s records was with Dr Steer on 27 April 2006 at which time he said he had had the lower back pain for about four weeks but connected it with the trolley incident two years earlier. He is recorded as telling the physiotherapist he attended in early May 2006 that his “current history” was of 6 weeks of sustained bending working on his boat[9]. He told Dr Davison that the pain in late April 2006 had come on over about 3 months earlier as insidious onset of aching pain the lower back, mainly right lumbar region, experiencing first stiffness pulling on his socks and then that when he went sailing it helped to tie a jumper around his waist, and that it gradually worsened until he eventually attended his GP. He is recorded by Mr Dooley as saying that he had carried low grade aching pain for two years, at times waking at night with his pain, and then in 2006 he was involved in the rebuilding of a boat trailer involving a fair bit of bending and adopting awkward postures and the low back pain became worse and his back became quite stiff, leading to his attending for medical and physiotherapy treatment.

[9]             Exhibit 3

31        On cross-examination Mr Ridgewell confirmed that he had been involved in considerable bending forward on boat restoration work in the weeks leading up to his attendance for treatment in 2006.

Medical evidence

32        Mr Wilde ultimately (in a report to the plaintiff’s solicitors in 2008[10] ) gave the diagnosis of aggravation of lumbar spondylosis without radiculopathy. He considered that as the plaintiff did not suffer with symptoms prior to his injury, the injury as described with the trolley had been a significant contributing factor and although it was likely that there was a degree of asymptomatic degenerative disc disease prior to the injury, the injury caused further internal disc injury thus precipitating symptoms. He considered the prognosis guarded and expected that the plaintiff would always suffer with low grade symptoms of chronic lumbar pain and stiffness and would need to modify personal and work activities to accommodate his symptoms to avoid further deterioration.

[10]           Exhibit E

33        Mr Kevin King provided a medico-legal opinion in April 2010. Unfortunately some aspects of Mr King’s report reflect a history at variance with other material; in particular, that Mr Ridgewell was referred to Mr Peter Wilde about four months after the injury, having consulted a GP by then, that there were periodic quite severe flare-ups of low back pain, the last one occurring towards the end of 2005 and early 2006 when he was off work for six weeks, and then improved to his usual level and has continued to work since then losing odd days due to flare-ups.

34        Mr King’s opinion is that the trauma of being hit by the trolley was superimposed upon mild pre-existing but completely symptomless[11] degenerative changes in the spine – a routine finding in an adult of his age. Mr King attributed the onset of the acute low back pain at the time to the blow and the persistence of low back pain ever since entirely to the effects of injuries sustained at the time of that incident. Because of the variants in the history he had, he does not comment upon any role of the 2006 exacerbation or flare-up of symptoms and whether they were a consequence of a different injury sustained in his hobby of boat rebuilding (or gardening) in early 2006.

[11]           Accepting the plaintiff’s “very clear and definite statement that he had never had any problems with backache in the past”.

35        Associate Professor Maurice Wallin examined the plaintiff for a medico-legal report in April 2010. Notwithstanding some variations in the history he records from what I have found, these do not in my view undermine the overall reliability of his opinion. His diagnosis is of degenerative changes in the lumbar intervertebral discs and also in his facet joints, without diagnosable radiculopathy, but with some ongoing discogenic vulnerability and some facet joint vulnerability giving rise to the onset of significant pain when engaged in activities such as sustained sitting or non supported flexion of his back.[12] He considered that as Mr Ridgewell is tall and moderately thinly built, it is unlikely that he would have had other than a very mild degree of constitutional degenerative changes in his lumbar spine, and considers it “a certainty” that his lumbar spine degenerative changes were asymptomatic before he suffered the specific work injury. He considered there to be a very high likelihood that his employment remains a material contributing factor to his ongoing lumbar spine vulnerability.

[12]           Exhibit G

36        The defendant had the plaintiff examined by Professor Vernon Marshall in September 2008.[13] He diagnosed low back work strain injuries with mechanical low back pain but no radiculopathy. He considered the condition stabilized leaving the plaintiff with a partial permanent impairment, but that he was coping with activities of daily living and domestic and recreational activities.

[13]           Exhibit 6

37        Mr Michael Dooley also examined the plaintiff for the defendant, twice.[14] He diagnosed that the plaintiff suffers from degenerative disc disease of the lumbar spine, mainly at the lumbosacral level. His view was that in the trolley incident Mr Ridgewell sustained some musculo-ligamentous damage and may have aggravated underlying degenerative disc disease at the lumbo-sacral level. He had a history of ongoing pain following the episode and of a May 2006 flare up after boat trailer rebuilding activity. He considered that that represented a separate aggravation of the underlying degenerative disc disease, and that at the time of the work related episode and of the boat rebuilding aggravation, the degenerative disease of the lumbar spine was well established. He assessed there to be a mild to moderate loss of lumbar spine function from the work related episode which would persist for the foreseeable future.

[14]           Exhibit 7

38        The defendant principally relies upon successive reports of Dr Gary Davison, an occupational physician.[15] He quotes the plaintiff saying that the trolley incident “didn’t really incapacitate [him]” and that after 2 or 3 weeks he “had no problem since really”. He noted the lack of time off work or medical treatment following the trolley incident, and then a description of developing aching lower back pain, mainly in the right lumbar region, over about 3 months in early 2006, and consulting his GP for that. He took into account the CT scan of 9/5/06. His opinion was that the then current situation was not related to the trolley incident, in particular because he believed that a traumatic jolting injury such as that would not have resulted in facet joint degeneration or intravertebral disc degeneration. It was based on that opinion that the defendant denied liability for the plaintiff’s Workcover claim in May 2006. Dr Davison maintained his view that the plaintiff’s condition after May 2006 was due to whole of life “wear and tear” and a constitutional predilection, and not the trolley incident.

[15]           Exhibit 5

39        Notwithstanding that Dr Davison has examined the plaintiff on three occasions, commencing 25 May 2006 and therefore earlier than Mr Wilde or any medico-legal adviser, I am not satisfied that his opinion should be preferred to all of the others who find an ongoing connection between the plaintiff’s current (or in Mr Wilde’s case when seen in August 2006) condition and the trolley incident. I consider it too simplistic to interpret being told that the initial injury “didn’t really incapacitate me” as meaning that there was no ongoing effect or impairment, and note Professor Wallin’s description of the injury as a vulnerability in the discs and facet joints. For reasons already explained I am satisfied that Mr Ridgewell did experience ongoing back pain as a result of the initial incident, although at tolerable enough levels for him to take over the counter medication, do stretching exercises, and continue to work at his pre-incident duties. I also note that Dr Davison does not deal as the other doctors do with the issue of the underlying condition being present but asymptomatic, and rendered permanently symptomatic by the work injury.

40        I am satisfied on the balance of probabilities that when hit by a trolley at work on 3 April 2004 the plaintiff suffered a forceful jolting injury to his lumbar spine which activated symptoms from underlying spondylosis, and that probably caused some internal disc disruption such that his previously asymptomatic spinal condition was rendered permanently symptomatic. I am satisfied that that injury continues to materially and significantly contribute to the ongoing symptoms in his lumbar spine, and that the exacerbation in April and May 2006, while probably brought on by his hobby activities, was not an intervening cause but a result of the ongoing vulnerability of his spine to the effect of such activities. That is sufficient to maintain the causative relationship between the 2006 exacerbation and ongoing limitations and the compensable injury in April 2004.[16]

[16] Grech v Orica Australia Ltd [2006] VSCA 172 at paragraphs [57] and [58]

Ongoing symptoms and consequences to the plaintiff of the injury

41        According to the plaintiff, whose evidence on this I accept, he suffers from ongoing pain in the right side of his low back which is increased if he is not careful with his movements. In particular, if he bends forward unsupported he gets instant pain, sitting in a car for long periods he is in pain, and twisting/jolting movements cause pain. He takes analgesics, bought over-the- counter for the pain but says “I don’t remember the pain ever going away, even with analgesics”.[17] He still relies on Nurofen (one or two tablets most days) and Panadol and occasional Voltaren rapid, all bought “over-the- counter”.

[17]           T 37.

42        He says that his sleep is now broken in that he finds it difficult to get to sleep and is woken by pain. As a result, he finds himself tired and less able to concentrate for sustained periods at work. I am satisfied that he notices that his sleep as interrupted by pain, but it was reported as not a problem in august 2006 to Mr Wilde, and in the absence of other evidence as to the frequency of this I am not satisfied that it is an ongoing significant regular concern.

43        He works 0.4 of a roster at the hospital being four shifts of 8 hours per fortnite, of full duties in the Emergency department. He also works in the Occupational Health Department at Longford for ESSO, about doing an 8-12 hour shift once or twice a month, but he describes them as very relaxing shifts where he is on call to provide first aid, but if it is a night shift he can get five or six hours of sleep. He is present if there is a problem referred to him, but these are not constant, with time in between to rest. He also does work through a sub-contractor of ESSO on oil rigs and platforms. This involves going for three day periods to a rig or platform, for first aid drills and training of first aid staff. He is flown by helicopter, and once there he talks to the supervisor, sets up a first aid drill – in that Esso employees arrange an incident requiring emergency casualty treatment - and then he supervises how Esso staff handle the first aid. He says that although he is gone for three days from home for this work, he does about four hours of work while on the rig or platform. This work is casual, only occurs for a few months a year, and is dependent on his being called for it and on his direct employer retaining its contract with Esso.

44        His earnings have varied since the incident, but he is not currently earning any less than he would have had he continued fulltime as a nurse for the defendant. It is conceded that he cannot satisfy the test for leave to claim damages for loss of earnings, but I that does not mean that loss of employment he enjoyed, or of employment flexibility or security cannot be taken into account as relevant to pain and suffering.

45        I am satisfied on the balance of probabilities that as a result of his back condition he is not able to work fulltime in full nursing duties, and that that incapacity is likely to be permanent. I am satisfied of this from his own evidence and the opinions of Mr Michael Dooley[18], Associate Professor Wallin[19]and Mr Kevin King.[20]

[18]           Exhibit 7

[19]           Exhibit G

[20]           Exhibit F.

46        However, he has shown himself able to obtain and perform alternative work, for which he is qualified, which is less demanding on his back but currently enables him to earn more in a shorter time than the lost shifts at the hospital. I accept that he enjoyed emergency nursing, but he continues to be able to do it part-time, and with the current amount of rest between shifts is likely to be able to maintain that level. He currently makes up the difference in earnings from alternative jobs which he does not dislike. While his overall options for future employment and earning capacity have become less flexible in that he is likely to be unable to work fulltime at heavy nursing duties, I am satisfied that this is not a significant impairment to enjoyment of life and feeling of work security for him. He has shown through his obtaining the two different jobs for Esso that he still has employment flexibility, and I also have regard to his past work history which includes executive positions as well as “hands on” nursing. In his circumstances, I am satisfied that in his case the limitation on his employability is not nearly as significant as it is for many other persons injured who suffer permanent inability to work at their previous jobs fulltime.

47        So far as personal activities are concerned, I accept that he has had to adapt many activities so that he limits or excludes those movements which bring on back pain, but given his own knowledge through his nursing experience and training in orthopaedics, his intelligence and self-discipline, and his self- motivation, he is able to achieve on a daily basis a modified lifestyle without forfeiting most of the activities in which he used to engage.

48        The defendant tendered surveillance film of him taken on several dates. I did not observe him to do anything outside the scope of what he had described as his limitations, and indeed whilst not aware of being observed he embarked on stretching consistent with feeling pain or stiffness developing and dealing with it by appropriate stretches. It was already my impression that Mr Ridgewell has adapted his activities to deal with his lumbar injury and not exacerbate it. To my observation he held himself carefully in certain postures, without rapid movements. The film shows enough sustained activity, however, including forward bending, albeit mainly supported, to minimise the weight I can put on Professor Wallin’s assessment of his having only approximately 50% mobility of his back due to the onset of significant pain[21].

[21]           P5 of report – exhibit G

49        I accept that he had ridden motorbikes regularly before coming to Australia, but not daily in Australia as was suggested in his first affidavit. In fact he had not bought or used a motorbike in Australia before the incident. He says and I accept that a couple of years ago he tried riding a motorbike, which he was considering buying, but found it was too painful because of the posture of leaning forward and jolting movements. However, about ten months ago he bought a dirt bike and has taken to riding on bush tracks which run near his home and he does this with friends from work. He finds this possible as it requires sitting upright rather than leaning forward. He also rides a bicycle because he finds that supporting his weight on handle-bars minimises pain and enables him to exercise, although he cannot do it for long periods.

50        He has apparently been a water-skier since the age of seventeen. He has resumed water skiing, which he does with a group of friends from work, but says that he has modified his movements as it is too painful on his back to be start from in the water as he would need to be pulled from a rolled up position to be pulled from the water, so he now starts upright from a standing beach start. He used to go snow-skiing but has not done so since coming to Australia. Since his injury he has sold a boat which he had restored. He found he could no longer sail the boat, partly because of difficulty lifting it on and off a trailer, and also because it required sitting with his legs straight in front of him and that was too much strain on his back. He is, however, as a hobby, still restoring a jet boat.

51        He had at an early stage in his career worked in landscaping, and enjoyed doing his own gardening. He is still able to do this and to mow lawns, although I accept that in doing so he avoids leaning forwards as much, and has to pause every ten minutes or so to stretch and relieve pressure on his back, and uses a ride-on mower for larger areas.

Conclusion

52        As already explained, I am satisfied that when hit by a trolley at work on 3 April 2004 the plaintiff suffered a significant jolting injury to his lumbar spine which aggravated previously asymptomatic spondylosis and caused some further internal disc injury, permanently activating variable levels of pain. I am satisfied that symptoms from that injury did not fully resolve, causing ongoing pain but of tolerable levels to which he could adapt both work and personal and social activities. I am satisfied that that injury also left him vulnerable to further aggravations or exacerbations of his underlying spondylosis.

53        I am satisfied that his back condition was exacerbated in April 2006 causing a couple of months of quite severe symptoms of pain and limitation of movement, including inability to sit or perform a wide variety of activities, including work, and some further months of increased pain and stiffness and some symptoms in his left eg of pain and occasional numbness in the calf. The most severe of those symptoms resolved with prescribed medication, the leg symptoms have not recurred for more than two years, and overall his pain has been able to be controlled with over-the-counter analgesic and anti- inflammatory medication ever since, together with appropriate exercises and adaption of posture for various activities. I am satisfied that the injury sustained on 3 April 2004, the compensable injury, remains a material contributing factor to the plaintiff’s ongoing symptoms of low back pain.

54         I was referred to several decisions in other cases where symptoms not dissimilar to his, including in younger men, have been found insufficient to meet the test.[22] Each case must be considered on the particular circumstances of the plaintiff including subjective perceptions, but there are some relevant comparisons. In this regard it may seem that the statutory test can be unfair to a man such as Mr Ridgewell who by exercising some stoicism and sensibly adapting to the effects of his injury has managed to maintain virtually all of his pre-injury activities.

[22] Storer v Warambat Pty Ltd [2009] VSCA 210, Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sabo v George Weston Foods [ 2009] VSCA 242; Haden Engineering v McKinnon [2010] VSCA 69

55 I am satisfied that he suffers back pain of varying degrees, which limits his activities at work and in a personal and family and social environment, in that he has to adapt his movements to avoid what he knows will cause more pain, and that he needs analgesics and anti-inflammatory medicines, but not in large doses, to control such pain. I am satisfied that on a daily basis he is aware of the consequences of his back injury, and that overall these are significant to him. However, I am not satisfied that the consequences to him from his ongoing disability of pain and limitations on activities can fairly be described as “more than significant or marked” or “very considerable” when compared with other possible degrees of impairment from back injuries. For that reason I am not satisfied that the plaintiff has suffered a serious injury within the constraints of s 134AB. His application will be dismissed.

SCHEDULE OF EXHIBITS

RIDGEWELL V LATROBE REGIONAL HOSPITAL

Number and Description of Exhibit

Identifying Mark

on Exhibit

A	Affidavits of the plaintiff dated 12/5/09 & 8/6/10 (pcb17-22d)
B	Acceptance of offer of employment dated 14/1/04
C	Copy incident report form dated 4/4/2004
D	Letters from Dr Omifolagi to Workcover manager on 26/5/06, letter to Mr Wilde 14/06/06 and 31/05/10 letter to plaintiff’s solicitors(pcb 24-27b)
E	Letter dated 21/08/2006 to GP and report 14/08/2008 from Mr Wilde to Plaintiff’s solicitors (pcb 28-34)
F	Report of Mr King dated 01/04/2010 (pcb 35-41)
G	Report of Prof Wallin (pcb 42-53) including CV
H	Report of CT Scan of Lumbosacral Spine dated 09/05/2006 (pcb 23) and MRI dated 18/11/06 (pcb 72)
J	Page 2 of Plaintiffs Form A application (pcb 2)
K	Diagram of incident of 03/04/04 drawn by plaintiff in Court on 05/08/2010

Number and Description of Exhibit

Identifying Mark

on Exhibit

1                 2 dvds of surveillance of Plaintiff taken 9 July 2009, 8 Nov and 13 Nov 2009

2              Plaintiff clinical records from Breed Street Medical Clinic

3              Plaintiff’s clinical records from physiotherapy clinic of Mr Stevens

4                 Extract from Plaintiff’s tax returns for years ending 30/06/2009 and 30/06/2010

5                 4 Reports of Dr Davison dated 30/05/06, 01/06/06, 23/09/09, 06/04/2010 (dcb 1-15)

6	Report of Prof Vernon Marshall dated 22/9/08 (dcb 16-22)
7	Reports of Mr Michael Dooley dated 24/09/09 and 04/05/10 (dcb 23-29)