Robertson v Transport Accident Commission
[2013] VCC 1395
•18 October 2013
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-00637
| MATHEW ROBERTSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 August 2013 | |
DATE OF JUDGMENT: | 18 October 2013 | |
CASE MAY BE CITED AS: | Robertson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1395 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Transport Accident – injury to the low back – pain and suffering only
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Barlow v Hollis (2000) 30 MVR 441; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: The plaintiff’s application is dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr J Goldberg | Slater & Gordon |
| For the Defendant | Mr P Scanlon QC with Mr A Saunders | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 25 August 2009 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4) (d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found in s 93 (17) of the Act. There –
“serious injury means−
(a)serious long-term impairment or loss of a body function.”
4 The loss of body function relied upon in this application is the low back.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon two affidavits sworn by him on 7 January and 15 August 2013. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or his evidence in cross-examination; however, I will refer to the plaintiff’s relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93 (17) of the Act.
8 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak,[1] where the majority of the Court of Appeal said:
“We think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s. (4)(d) when reliance is placed upon sub-s (17) (a) may be stated in the following terms: he is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[1][1992] 2 VR 129
[2] Humphries & Anor v Poljak (supra) at paragraph [140]
9 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[3]
[3] Humphries & Anor v Poljak (supra)
10 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[4]
[4](supra) at paragraph 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29]
The issues
11 Counsel for the defendant informed the Court that this was a “range” case.
Investigations
12 A CT scan performed on 27 April 2005 showed a small disc herniation at L3-4. There was no abnormality at L4-5 level.
13 On 5 October 2010, an MRI scan showed a left sided L4-5 disc prolapse.
14 On 21 February 2011, an MRI scan of the lumbosacral spine reported:
“In comparison with the previous study, there has been previous surgery with a foraminotomy on the left at L4-5 and there is evidence for a small recurrent/residual disc protrusion in the left paracentral position. No change to the L3-4 degenerative disc bulge.”
15 On 9 July 2013, a lumbosacral spine x‑ray showed:
“Approximately 5mm retrolisthesis is shown at L4-5 on both flexion and extension. There also appears to be retrolisthesis of about 5mm at L5‑S1 on flexion and extension (but detail suboptimal to be certain). L4‑5 and L5-S1 disc spaces are narrowed. Reduction of posterior vertebral body height of L5 could be developmental hyperplasia. No spondylolysis or other significant abnormality detected. Sacroiliac joints have been partly included. No major abnormality is indicated.”
The Plaintiff’s medical evidence
Dr M Brighton-Knight
16 Dr Brighton-Knight, orthopaedic surgeon, treated the plaintiff on referral from his general practitioner. In November 2010, Dr Brighton‑Knight obtained a history of constant radiculopathy down his left leg for more than twelve months. A CT-guided epidural injection did not relieve the pain. Dr Brighton‑Knight recommended surgery of microdiscectomy and rhizolysis of the nerve root, which he performed in December 2010. He performed a rhizolysis of the left L5 nerve root and microdiscectomy of herniated nucleus pulpous at L4-5. He reported that the traversing L5 nerve root was identified at its origin. A large disc herniation was seen to be compressing the nerve root between itself and the facet overlying. The facet was undercut and the disc bulge was removed.
17 In December 2010, Dr Brighton-Knight said the plaintiff was making an excellent recovery. He did not expect he would be able to return to full-capacity work for at least another six weeks.
18 In February 2011, Dr Brighton-Knight said the plaintiff had increased his level of physical capacity; he was getting more symptoms in his left leg which suggested a recurrent disc herniation. A repeat MRI scan was performed. Dr Brighton‑Knight provided him with a certificate for another couple of months off work.
Dr Kaiti Williams
19 In March 2011, Dr Williams, chiropractor, reported to the Transport Accident Commission that she had treated the plaintiff on twenty-three occasions and that his symptoms had ranged from severe to moderate, and he was noting very slow improvement. She reported the sciatic condition had not resolved to the pre-accident level, where the episodes were intermittent; it has been ongoing.
Mr Stanley O’Loughlin
20 In September 2011, Mr O’Loughlin, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. Mr O’Loughlin was aware of a previous CT scan performed on 27 April 2005, which did not show any abnormality at the L4-5 disc level. The plaintiff reported no back pain between 2005 and 2009.
21 Mr O’Loughlin reviewed the MRI scan of 5 October 2010 and said the plaintiff sustained a disc prolapse at the L4-5 level, which was a result of the transport accident. This produced a left-sided sciatica, which failed to resolve with conservative treatment and required microdiscectomy and nerve root decompression. He obtained a history of significant improvement but then a flare up of worsening pain. A repeat MRI scan showed a small swelling of the disc in relation to the nerve root. Since that time, there had been a gradual improvement.
22 Mr O’Loughlin said, when examined, the plaintiff had minimal adverse symptoms. He did not believe the plaintiff’s condition was of a degenerative nature, and said the disc prolapse was caused by the transport accident, which will lead to some degenerate changes at that level, and because there are minor degenerate changes in the lumbar spine, there may be problems with back pain in the future.
Mr Stanley F Schofield
23 In July 2013, Mr Schofield, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitors.
24 The plaintiff reported constantly present back pain, although not as bad as before the surgery, and aggravation of pain when lifting objects, especially from the ground. Symptoms are worse when driving a tractor for in excess of two hours on uneven or rough ground. He has difficulty lifting above his head, which necessitates arching his back. He experienced pain in bed, which is eased by flexing his back and lying on his left side. He cannot sit for more than one hour and stand for less than one hour. He complained of left sciatica, which improved with surgery, but it has now become worse as he tries to work. The left leg pain radiates from the back of the thigh to the lateral calf and into the ankle.
25 The plaintiff told Mr Schofield that he continues to play football, but has difficulty in coping with the various manoeuvres on the ground. He reported restrictions in his recreational activities at home and took Nurofen on a regular basis. He said he had been given an exercise program from a physiotherapist.
26 On examination, Mr Schofield noted a 2-centimetre wasting of the left thigh and calf. Neurological examination was consistent with L5 radiculopathy.
27 Mr Schofield was aware that the plaintiff had back symptoms prior to the transport accident. There was a report of a disc herniation at L3-4 and only a mild bulge, without nerve compression, at L4-5. The prolapse at L3-4 resolved. The L4-5 bulge became sequestrated, with rupture of the posterior annulus, causing severe sciatica, which was as a result of the transport accident.
28 Mr Schofield reviewed an MRI scan of 2011, following the surgery, which demonstrated further sequestration of a small prolapse at L4-5 on the left.
29 After reviewing x-rays of July 2013, Mr Schofield said further degeneration had occurred, with evidence of a small recurrent/residual disc protrusion in the left paracentral position at L4-5. This was consistent with his clinical examination. He said the plaintiff’s condition has not stabilised and he requires a further MRI scan to determine the size of the prolapse and whether further surgery is required, which he thought likely.
The Defendant’s medical evidence
Mr Robert Dickens
30 In July 2013, Mr Dickens, orthopaedic surgeon, examined the plaintiff at the request of the defendant. He diagnosed a prolapsed intervertebral disc at the L5-S1 level, producing sciatic distribution of pain involving the left leg. He obtained a history of minor back problems which were not aggravated by the accident, and he did not believe had influenced the course of the current injury. Mr Dickens said the plaintiff’s injuries were consistent with the accident.
31 The plaintiff told Mr Dickens that as a result of the surgery, the leg pain improved, but then recurred worse than before. A repeat MRI scan showed a small recurrence but he was advised by the surgeon to wait, and with time, the leg pain would lessen. The leg symptoms have never completely gone; he returned to conservative treatment. Over the years, the leg pain has improved. He consults a chiropractor every four to five weeks.
32 At the time of examination, the plaintiff reported aching pain in the lumbosacral region, which was particularly bad at night and after work. He experienced intermittent pain in the left leg of a throbbing nature which radiates down the left leg, the back of the thigh and calf to the ankle. The back pain is worse than the leg pain. The severity of the pain, measured on a visual analogue scale, at its worst, is 7 out of 10, but averages 4 to 5 out of 10. He is never pain free.
33 The plaintiff reported that he is not keen to drive for more than two hours without a break. If he stands for more than one-and-a-half hours he gets increased low-back pain. His injuries have no effect on his walking ability. He gardens and mows the lawns, assists with housework and says he can do most things but must be careful. He plays local football and reported his football ability is not comparable to what it was prior to the accident.
34 The plaintiff reported that he takes no medication; his current treatment is self help and seeing a chiropractor every month. On examination, Mr Dickens found no wasting and said the plaintiff’s spine is normal, and he could walk normally. Straight leg raising on the left was reduced.
35 Mr Dickens said the plaintiff was sensible and had adjusted to his problems. He was working full time on the farm, with a significant workload, albeit with some discomfort. He expected that the plaintiff would either remain at a similar level of activity but has a potential to improve, provided he kept himself fit. Mr Dickens thought the work had not significantly impacted upon him, although the plaintiff reported he had to be cautious in doing certain activities.
Mr Geoffrey Klug
36 In March 2012, Mr Klug, neurosurgeon, examined the plaintiff at the request of the defendant. Mr Klug accepted that the plaintiff had suffered a symptomatic disc protrusion at the L4-5 level, which was responsible for back pain and sciatica. He said there was a substantial resolution of the plaintiff’s condition since surgery, and accepted the plaintiff’s complaint of minor symptoms related to his low back.
37 Mr Klug reported that an MRI scan of 21 February 2011 showed evidence of prior surgery on the left at L4-5 with what appeared to be a small recurrent/residual disc protrusion at that level with no changes in findings at the L3-4 level. It was his opinion that the plaintiff did not require any further surgery. He noted the plaintiff was not taking any medication, but recommended he undertake a regular exercise program, directed by a physiotherapist, to ensure maximum strength and mobility of the lumbar spine.
38 Mr Klug said the plaintiff had returned to his previous employment, that he undertook his required activities with minor difficulties, which was reasonable.
39 Mr Klug was aware that the plaintiff had resumed participation in football, involving training and coaching, which he thought suggested that there had been a substantial improvement in his condition. He said it would be inappropriate if the plaintiff resumed playing competitive football as this would have the chance of aggravating his condition.
Credit
40 There was no challenge to the plaintiff’s credit. He presented as a hardworking man who was keen to return to work to support his family. He was described by the doctors as straightforward in his presentation, did not embellish his symptoms, was sincere and presented an accurate history. The plaintiff answered all questions in a clear and forthright manner. I formed the view the plaintiff was a credible witness.
Analysis of the evidence
41 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of the transport accident. All of the medical witnesses accepted that the plaintiff suffered a low-back injury for which he underwent a microdiscectomy performed by Dr Brighton-Knight in December 2010 at the L4‑5 level, and rhizolysis of the left L5 nerve root.
42 The plaintiff reported sporting injuries including a left foot injury in 2004 and a right knee injury in 2007 as a result of playing football. He said he sought physiotherapy and chiropractic treatment over the years due to intermittent back pain, which resolved with treatment. Because of some back pain and referred right sciatica as a result of a football injury, in 2005 a CT scan at the L3‑4 level showed a central disc herniation with evidence of a small disc extrusion, slightly to the left. The plaintiff was treated by a chiropractor. The plaintiff reported these injuries to the medical witnesses he saw.
43 Mr Schofield and Mr Klug specifically referred to the prolapse at L3‑4 and said it resolved, as evidenced on the recent MRI scans. All accepted the L4‑5 bulge became sequestrated with rupture of the posterior annulus, causing some sciatica, in the transport accident. Mr Dickens said the pre-existing problems were not aggravated by the transport accident and were minor. I accept that the transport accident injuries were different to the injuries suffered before the transport accident and were unrelated to the previous sporting injuries. There was no medical evidence to the contrary.
44 As a result of the transport accident, the plaintiff received medical, chiropractic and physiotherapy treatment. In October 2010, a nerve injection was performed without assistance. In December 2010, a microdiscectomy was performed.
45 Initially the surgery improved the plaintiff’s back and left leg pain. At review in February 2011, Dr Brighton-Knight said as the plaintiff increased his level of activity he was experiencing more symptoms in his left leg, which suggested the plaintiff had a disc herniation. In February 2011, an MRI scan confirmed a small recurrent/residual disc protrusion at the left paracentral position at L4‑5. The plaintiff was given the option of further surgery. He was told that by waiting there could be some spontaneous improvement. The plaintiff elected to wait.
46 By September 2011, Mr O’Loughlin, orthopaedic surgeon, examined the plaintiff and reported that the plaintiff had a very good result from the surgical procedure and was only reporting minimum adverse symptoms at the time of the examination. Mr O’Loughlin was aware of the February 2011 MRI scan, and said, since that time, the plaintiff reported a gradual improvement and was currently free of discomfort.
47 In March 2012, Mr Klug said there was “a reasonably good recovery” and that the plaintiff had “some minor ongoing symptoms”. He thought the plaintiff’s prognosis was reasonable in regard to his back disorder. He said the plaintiff does not require any further operative treatment. The plaintiff was not taking medication, and it would be reasonable for the plaintiff to undergo a physio-directed exercise program to ensure maximum strength and mobility of the lumbar spine.
48 Mr Klug accepted that the plaintiff could undertake his employment with some minor difficulties. He did not expect the plaintiff’s domestic activities to be interfered with, and was aware that he had returned to some participation in football, involving training and coaching, which he thought suggested a substantial improvement in his condition. Mr Klug said a resumption of competitive football had the chance of aggravating the plaintiff’s condition.
49 In July 2013, Mr Dickens and Mr Schofield examined the plaintiff. Both noted restriction of leg raising on the left. Mr Dickens said there was no evidence of radiculopathy, whereas Mr Schofield said there was radiculopathy affecting the left leg. Mr Dickens noted no leg wasting, whereas Mr Schofield measured some wasting. Mr Klug measured some wasting of one centimetre in March 2012, but said that was not a significant difference, and he did not believe the plaintiff was suffering from radiculopathy. Mr Schofield reported that the plaintiff was taking Nurofen on a regular basis, whereas Mr Dickens reported that the plaintiff was taking no medication. That was consistent with Mr Klug’s report in 2012. Mr Dickens said the plaintiff was very sensible, had adjusted well to his injury, and was working full-time with some discomfort, which he expected would remain at a similar level but had the potential to improve provided the plaintiff kept fit. He was aware that the plaintiff was cautious in performing certain activities.
50 Mr Schofield performed x-rays which showed evidence of further degenerative changes having occurred, with narrowing in the disc spaces, which was consistent with a significant recurrent prolapse. Mr Schofield said the plaintiff required an up-to-date MRI scan to determine the size of the prolapse. He thought the plaintiff’s condition had not stabilised and it was likely that he would require further surgery.
51 Mr Schofield was alone in this view. The plaintiff’s evidence was that he would not undergo surgery because of his farming commitments and the fact that his wife was due to deliver their first child.
52 I accept the medical evidence is that the plaintiff suffered a disc prolapse at L4-5 level, which required surgery and that the plaintiff subsequently developed further pain, which was identified as a recurrent/residual disc protrusion at the L4-5 level. The medical evidence is that he can perform his work activities with some discomfort. Mr Schofield said the plaintiff was struggling with his work and was not able to enjoy his recreational activities as previously. He thought the plaintiff would ultimately require further surgery. Mr Dickens thought he had stabilised, and, with activity, may improve.
53 I accept the majority of the medical witnesses thought the plaintiff had stabilised; that is, he will remain at a similar level of acuity. Mr Dickens thought he may improve. Mr Schofield thought he might require surgery. I accept the impairment is long term.
54 The issue is whether the consequences satisfy the statutory test.
55 The plaintiff said he continues to experience continual low-back pain and discomfort which fluctuates according to activity. His symptoms are aggravated by prolonged sitting or standing. He experiences back weakness and intermittent left leg symptoms. His back pain gradually worsens, so by the end of the day he has constant back pain. After a day’s work he needs to lie or sit down to ease the pain and symptoms. He said the pain in his leg can be very uncomfortable. It aches all the time. Some days are better than other days.
56 The plaintiff reported the pain to the doctors whom he saw. The plaintiff reported to Mr Dickens that the severity of the pain on the visual analogue scale at its worst is 7 out of 10, but averages 4 to 5 out of 10. He reported to Mr Klug and Mr Dickens that he was taking no medication. He reported to Mr Dickens that at the end of the day the pain is worse, and particularly bad at night, and if he sits on his tractor for more than an hour, or sits in the car for more than two hours, or if he is doing any lifting, milking or bending. The pain is improved by resting and doing core exercises. All doctors accepted the plaintiff suffered discomfort, and in the case of Mr Schofield, said he was struggling with his work.
57 I accept the plaintiff’s evidence in relation to the description of pain in his back and leg. He was consistent in reporting the level of pain to the medical witnesses. I accept that the experience of pain for the plaintiff is a consequence I can take into account.
58 The plaintiff said his pain is made worse by the tasks he must perform at work. He agreed he had little assistance in performing his farming duties. His mother assisted when available. His father helps when two people are required for a particular task. Other than that, the plaintiff performs most tasks himself. The plaintiff has not had the need to employ staff. He said sometimes the days are long and hard.
59 The plaintiff’s evidence to the Court and to the doctors was that he manages the back pain and leg symptoms by pacing the way he goes about his work. He is able to do most of the work tasks; many of the tasks are physically demanding and difficult. He said he needs to be vigilant and cautious in the movement of his back, especially bending, flexing, twisting and turning, particularly when handling and manoeuvring moderate to heavy weights. He told the Court he adopts appropriate lifting techniques with his work. The plaintiff reported problems with driving tractors and trucks over rough and uneven ground, despite adequate suspension in those vehicles. He noticed a marked increase in pain, particularly after sitting in a truck or tractor for up to about two hours. There is also a problem with driving a car for long periods. After two hours he has a break, and walks to relieve the pain.
60 The plaintiff also encounters difficulty when manhandling mobile equipment, for example a slasher or water cart, when he has to line up the equipment to fit it onto a towbar. The plaintiff reported difficulty when lifting heavy items, and particularly when he feeds the calves. He put a technique in place; bends his knees, and keeps his back straight. I accept that these are consequences which affect his work, and which I can take into account.
61 The plaintiff said he manages the pain by obtaining chiropractic treatment. He told the Court, as at mid-August, he had attended the chiropractor on eleven occasions this year. The chiropractic treatment helps with the relief of pain and improves the mobility in his back. He also obtains massage treatment as required. He said he takes Nurofen and Panadol Osteo as required. He is reluctant to take medication, as he suffered side-effects when taking prescription medication before surgery. Currently, he is taking Nurofen once per week, when the low back flares up and swells. He said the flare-up lasts for approximately two days, and it is probably a week before it is back to normal.
62 The plaintiff reported to the medical witnesses the way in which he copes with his pain and the level of medication he takes. All doctors accepted that the plaintiff would suffer discomfort, and Mr Schofield said the plaintiff was struggling with his work. No doctor suggested his treatment was inappropriate.
63 I accept the level of treatment the plaintiff has is at the low end of the scale. All doctors commented favourably upon his ability to self-manage his pain and perform his work duties.
64 The plaintiff said he gardens and mows the lawns and helps with the housework. He can do most things, but must be careful.
65 The plaintiff agreed that as a result of a recent x‑ray performed by Mr Schofield, he was told that he may require further surgery. He said presently there was no way he could undertake surgery because of his work commitments and the imminent birth of his baby.
66 It was not in issue that the plaintiff was stoical. Mr Klug described the plaintiff as “sincere and presented an accurate history of his condition”. Mr Dickens said he was “quite straightforward in his presentation. He does not appear to embellish his symptoms in any way.” It was my view that the plaintiff presented as stoical. He was not given to exaggeration and he gave his evidence in a most uncomplaining way. I took the view that he was prepared to endure a fair amount of pain as he went about his farm work. I base my impression on the way he presented in the witness box and the comments by Mr Klug and Mr Dickens. I accept the injury suffered by a stoical plaintiff is not to be viewed any less seriously merely because he manages to remain more active than might have been expected given the level of pain.
67 The plaintiff’s evidence is that football is a big part of his life and has been for many years. Prior to the transport accident, the plaintiff played football at an elite level at Springvale, in the reserves. This was a feeder for the St Kilda football team. At the time of the transport accident, he was a playing assistant coach of a local football team at Trafalgar, being paid $400 per week. He continued playing football after the transport accident. Between 2009 and 2011, he played forty games and kicked in excess of 130 goals. The plaintiff said that after the transport accident, he continued to coach and play football in the 2010 season with the assistance of prescription medication. At page 33 of the Defendant’s Court Book I was shown two photographs of the plaintiff taken at the Grand Final in 2010. In the first photograph, the plaintiff is jumping from the ground and contesting a mark, and in the process, twisting his trunk. In the second photograph, he is fending off an opposition player.
68 After the surgery, in December 2010, the plaintiff said he resumed playing football towards the end of the 2011 season, playing three games only. In 2012, he played eleven games for Ellinbank and kicked 29 goals. In 2013, he kicked approximately 23 goals, but that was because he spent most of the season on the back line. He trains once per week, and agreed that currently, he is one of the best players in the club. Currently, he is paid $250 per week. He reported to Mr Schofield and Mr Dickens that his football ability is not comparable to what it was prior to the transport accident. The plaintiff agreed in Court that footballers do not improve their game from age thirty.
69 I accept that, apart from a period in the 2011 season following his surgery, the plaintiff has continued to coach and play football.
70 The issue was whether the consequences of the plaintiff’s injury met the test of seriousness, in that they could be considered to be “more than significant or marked, and as being at least very considerable” when compared to other cases in the range.
71 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[5]
“... many disturbances are considerable, in the sense that they are important or substantial, without being very considerable.”
[5][1998] 1 VR 702
72 Section 93 of the Act was intended to restrict the availability of common law damages to impairments which are of “very considerable” magnitude. Although the plaintiff’s back injury has had a notable effect on his life, he retains the capacity to participate in many activities, including football, and to undertake full-time work of the kind he was performing prior to the transport accident, albeit with some difficulty.
73 In Stijepic v One Force Group Aust Pty Ltd,[6] Ashley JA and Beach AJA said:
“The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other.”
[6] ibid
74 In assessing the consequences:
“[T]he significance of what has been lost ... may be informed, to an extent, by what is retained.”
75 It is accepted that the plaintiff has residual symptoms with his back, including pain most days and, when the bank pain is severe, he gets left leg pain which affects his working and home life. The plaintiff has the capacity to perform physical work consistent with the work he was engaged in prior to the transport accident, but must be careful about how he goes about his work. He needs to be vigilant and cautious in the movement of his back, especially when bending, flexing, twisting and turning, particularly when handling and manoeuvring moderate/heavy weights. The level of treatment he has is at the low end of the scale.
76 The plaintiff has retained the ability to coach and play competitive football. He is regarded as one of the top ten players in his team. The plaintiff was an active man, and, to his credit, he has maintained an active lifestyle. He drives his motor vehicle, even though after two hours he is aware of the pain and has a break. He gardens, mows the lawns and helps with the housework. He can do most things but he must be careful.
77 Taking all of the evidence into account, including the plaintiff’s age of thirty, and his stoical presentation, I am not persuaded, on the balance of probabilities, and in the light of the evidence as a whole, that the consequences to the plaintiff satisfy the test. I accept the plaintiff suffered an injury in the transport accident. I accept that the injury has had pain and suffering consequences to him, which are both “marked” and “severe” but I am not satisfied that, when judged by comparison with other cases in the range of possible impairments, the injury can fairly be described as being “more than significant or marked, and as being at least very considerable”.
78 Accordingly, I dismiss the application.
- - -
0
2
0