Srhoj v TAC

[2012] VCC 641

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT MELBOURNE

CIVIL DIVISION

SERIOUS INJURY

Case No.  CI-09-00900

GREG SRHOJ	Plaintiff
V
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	27 & 28 February 2012
DATE OF JUDGMENT:	13 April 2012
CASE MAY BE CITED AS:	Srhoj v TAC
MEDIUM NEUTRAL CITATION:	[2012] VCC 641

REASONS FOR JUDGMENT

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Catchwords: TRANSPORT ACCIDENT –Transport Accident Act 1986, Section 93 – serious injury – impairment to the lumbar spine.
Cases: Humphries v Poljak [1992] 2 VR 129, Richards v Wylie (2000) 1 VR 79, Petkovski v Galetti (1994) 1 VR 436, Dressing v Porter (2006) VSCA 215, De Agostino v Leatch (2011)VSCA 249, Spence v Gomez (2006)VSCA 48
Judgment: Leave granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P F O’Dwyer SC with Mr A J Saunders	Slater & Gordon
For the Defendant	Mr R P Gorton QC with Mr S A Smith	Solicitor to the TAC

HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(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 (“the accident”) which occurred on 22 December 2002 (“the said date”).

2 Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3       

The definition of “serious injury” relied upon by the plaintiff is under

s.93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to (a) relied upon by the plaintiff is the spine, particularly the lumbar spine. An application in relation to the right knee was withdrawn during closing addresses.

4       The enquiry under subparagraph (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.

5       The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.

6       In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?:  see Humphries v Poljak [1992] 2 VR 129, at 140-1.

7       The plaintiff relied on two affidavits and gave viva voce evidence.  He was cross examined.  Mr Peter Wilde, orthopaedic surgeon, was required for cross examination.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material. 

The Plaintiff’s Evidence

8       The plaintiff is presently aged forty having been born in May 1971. 

9       On the said date, he was involved in a collision with a vehicle which failed to give way whilst executing a right hand turn (‘the accident”).

10      In examination in chief, the plaintiff confirmed it was a very heavy collision, with the front right of his vehicle hitting the front left side of the other vehicle.  The plaintiff identified a number of photographs, which showed extensive damage to his vehicle.

11      Police and ambulance attended the accident scene and the plaintiff was transported to the Austin Hospital (“the Austin”).  The plaintiff was in heavy shock at the Austin.  Initially he was suffering “pretty sharp” pain in his right leg.

12      X-rays showed a fracture to the right patella and the plaintiff was fitted with a Zimmer splint.  He was discharged home from the Austin with pain relief medication and he wore the splint for six weeks.  He was referred to outpatients where he last attended in March 2003 at which time an x-ray revealed the fracture had healed.

13      The plaintiff deposed that as a result of the accident, he sustained severe aggravation to pre existing asymptomatic degenerative change in the lumbosacral spine, soft tissue injury to the neck, undisplaced avulsion fracture of the tip/lower pole of the right patella, soft tissue injury to the right knee, bruising to his chest and right forearm and chronic adjustment disorder with anxiety and depressed mood.

14      The plaintiff was laid up in bed for a while after the accident and it was not until January the following year when he became more mobile, that he started to feel back pain.

Pre-accident Condition

15      Prior to the said date, the plaintiff injured his lower back whilst working as a stonemason at Rickson’s Stonemasons on 24 August 2000 (“the work injury”).

16      The plaintiff deposed he initially had a week off work following the work injury.  However, after returning to work for a short time he resigned.  He did not lodge a WorkCover claim.

17      In examination in chief, the plaintiff confirmed the time off after the work injury.  He then at some stage ceased work, perhaps a month or two later.  He relocated to the Yarra Valley, worked as a sole trader, and did some stonemasonry building a house.  Around that time, he went on Social Security for about nine months. 

18      Following the work injury, the plaintiff attended his general practitioner, Dr Emerson, and also had treatment from a chiropractor and an osteopath.  A CT scan of the plaintiff’s lumbar spine was carried out in June 2001.  Through 2001, the plaintiff developed some left leg pain.   

19      On 13 December 2001, the plaintiff was referred to Mr Tange, neurosurgeon, at the Royal Melbourne Hospital.  An MRI was carried out in March 2002.  Before the accident, the plaintiff last saw Mr Tange and Dr Emerson in April 2002.

20      In early 2002, the plaintiff returned to work as a stonemason for Cathedral Stone as a sub contractor and was able to cope with his duties.  He confirmed he had a contract with this company between 9 April and 30 June 2002.  He worked mainly as a walling mason, building walls out of stone, the size of which could vary from one to thirteen kilos in weight.  It was fairly heavy work.  At times, he had to move and reshape the stones and lay them onto a wall with cement.  The stones were delivered to the work site by truck and the plaintiff then had to transport them by trolley or barrow to wherever he was working.

21      The plaintiff recalled Mr Tange telling him he should consider changing his job and undertake lighter sort of work with less stress on his body.

22      After receiving that advice, the plaintiff however, continued working with Cathedral Stone and he was able to manage that work.  He thought he might have had a “few little glitches along the way” but his back was pretty good.

23      The plaintiff thought “there was a bit of recognition” that he should look at alternative work.  At that time though, he was quite passionate about stonemasonry, so he did not really want to give it up.

24      In about July 2002, the plaintiff commenced working for Shade Factor Pty Ltd as a sub contractor erecting external shade systems and blinds.  He deposed the work was quite heavy and physically demanding.  In examination in chief, the plaintiff described the job as being generally fairly light but there was some lifting involved and quite heavy duties when installing the systems.  The work involved erecting a scaffold and generally working therefrom with another person putting the blinds, which were sometimes three metres long, on the outside of a building.

25      Prior to the said date, the plaintiff did not have any problems doing his work and he did not seek any treatment whilst working at Shade Factor.

26      The plaintiff’s back was stable in the six months before the said date.  As far as he could remember, he was free of pain and medication and was unrestricted in employment, social and recreational activities.  The left sided sciatica following the work injury had definitely resolved prior to the said date. 

27      The plaintiff continued to play sport such as cricket and tennis and went canoeing, which was a favourite pastime.

28      In cross examination, the plaintiff confirmed he had seen a chiropractor in Heidelberg and also Dr Emerson for the work injury and he had also seen Dr Emerson.  Dr Watts in Warburton organised a CT scan in June 2001 after the plaintiff moved to the Yarra Valley.

29      As of June 2001, the plaintiff was suffering from pain into his left leg, as set out in the note to the CT scan.  That investigation also revealed an old L1 wedge fracture dating back to childhood.

30      In August 2001, Dr Strekfuss, osteopath, organised some further investigations in relation to the plaintiff’s lower back problems and particularly because of his left sciatica. 

31      In cross examination, the plaintiff recalled having stiffness and a bit of discomfort but not back pain at that time.  During 2001, he had periods of time that he was free of pain but then the pain would return. 

32      The plaintiff would have to say “yes and no” that his work as a stonemason in 2001 aggravated his symptoms.  Sometimes the work improved them.  His symptoms always fluctuated. 

33      The plaintiff agreed he had had a break in treatment with Dr Emerson from May 2000 until the end of 2001.

34      The plaintiff agreed that when he returned to see Dr Emerson, he reported low back pain due to the work injury.  He also complained about pain in the sciatic nerve area.

35      The plaintiff agreed he continued seeing Dr Emerson in February and April 2002 and he had scans on his back around that time.

36      The plaintiff was “definitely not seriously considering” having an operation at that time.  It was suggested an operation could be used for his condition but there was no need for it.  In cross examination, the plaintiff confirmed this was the position, having been told of Dr Emerson’s letter to Dr Tange in April 2002 suggesting the plaintiff “probably wanted Dr Tange’s expert micro discectomy.”

37      The plaintiff could not recall having a conversation with Dr Emerson regarding any back surgery but Dr Emerson may have suggested it.  The plaintiff did not think his pain would have been severe in about April 2002. 

38      The plaintiff confirmed that when he saw Mr Tange in April 2002, he told him that he had eighteen months of back pain since the work injury.  It began initially with stiffness but then for five months he had had a problem with left sided sciatica.  The symptoms fluctuated with pain radiating into the buttock and calf, but it was possible the symptoms had been getting better over the last month or so.

39      The plaintiff agreed that shade work was a much lighter job which he managed without difficulties and he was almost symptom free.  He did that job together with some stonemasonry work as a sole trader in November 2002.

40      The plaintiff agreed that it took quite significant physical problems to make him recognise he should give up stonemasonry.  The plaintiff agreed that was definitely part of it, but that decision was also career orientated.

Treatment After the Accident

41      Following the accident, the plaintiff first attended Dr Emerson’s clinic on 6 January 2003 where he saw Dr McGovern, complaining of worsening back and left leg pain.  She referred the plaintiff to Mr Tange.

42      The plaintiff attended his general practitioner the following day and was referred for acupuncture and osteopathic treatment.  On 13 January 2003, the plaintiff commenced physiotherapy with David Pitcher. 

43      The plaintiff had physiotherapy treatment from Mr Pitcher from April 2003 until November 2006, and thereafter he had massage and saw an osteopath.

44      In June 2003, the plaintiff was referred to Mr Robin, orthopaedic surgeon, whom he first saw in July mainly regarding his right knee.  An x-ray and MRI scan of the right knee took place later that month.

45      The plaintiff last saw Mr Robin on 12 August 2003.  Mr Robin then recommended ongoing physiotherapy to increase the strength and range of knee movement as the plaintiff was experiencing instability and pain when using stairs and when getting up after sitting for a long time.

46      In cross examination, the plaintiff said he could recall asking Mr Robin if he could comment on his back but  he was told by him that he was just being seen in relation to his knee. 

47      The plaintiff could not recall the last time he received treatment for his knee but it would not have been later than 2006 when he last had physiotherapy.

48      Dr Emerson also referred the plaintiff to Mr Wilde, orthopaedic surgeon, whom he first saw on 13 August 2003 regarding his back.

49      In cross examination, the plaintiff confirmed after the accident he developed symptoms in his low back and had further left sided sciatica.  He continued to have these problems when he saw Mr Wilde in August 2003.

50      There was an MRI scan of the plaintiff’s lumbar spine on 16 September 2003 and later that month he underwent a CT guided epidural injection of local anaesthetic and steroids into his spine at L4/5 as suggested by Mr Wilde.  However, that procedure resulted only in temporary relief of the plaintiff’s symptoms into his left leg and a worsening of his lower back pain.

51      In about September 2004, the plaintiff began experiencing reflux and abdominal discomfort and he was referred for a gastroscopy, which was essentially normal.  As the plaintiff was advised that problem may have resulted from the intake of anti-inflammatory medication, he ceased taking it, only taking pain relief when experiencing an acute exacerbation of lower back pain.

52      The plaintiff confirmed he completed a disability questionnaire for Mr Pitcher on 15 November 2004 but could not remember if that was typical of how he was for a lot of the time.  His condition fluctuated so much he could not be definitive on how it was generally.

53      In cross examination, the plaintiff confirmed he first saw Dr Hemley in February 2005.  The following month Dr Hemley referred him to Mr Wilde following a recent exacerbation of pain, especially into the left leg which lasted four or five weeks then completely subsided.

54      In cross examination, the plaintiff agreed with Dr Hemley’s description of his condition at that time, saying his pain would flare up and then it would go away but it did not completely resolve.  The plaintiff denied that he just had an exacerbation in February 2005 and then a further one eight months later.  The exacerbations happened more frequently and some were worse than others.  His condition was variable and it was hard to define.  He did not go to a doctor all the time when he had a flare up and sometimes he just put up with the pain.  Sometimes he took time off, sometimes he did not, depending on how bad the flare up was.

55      When the plaintiff swore his affidavit in September 2009, he was having monthly massages at his own expense to remain mobile.  He attended osteopath, Mr Buultjens, approximately once a month and regularly attended Dr Hemley. 

56      Despite extensive conservative management, the plaintiff then continued to experience pain, stiffness and restriction of movement in his lower back and referred pain to his left buttock and leg extending into his calf.  The pain in his lower back was present every day.

57      The plaintiff also experienced referred pain into his right buttock and intermittent numbness over the front of his right thigh.

58      The pain in the plaintiff’s left leg into his calf worsened as the day progressed.  He tried to avoid lifting, twisting, bending and reaching forwards and sitting for longer than thirty minutes.  Prolonged standing increased the level of lower back and left sciatic pain.

59      Driving for long periods increased the level of the plaintiff’s pain in his lower back and left leg and therefore he took regular breaks to stretch.  His sleep was disturbed by pain and he preferred to sleep on his side.  Coughing was also provocative of pain in the lower back.

60      The plaintiff continued to experience discomfort and pain in and around the right patella and stiffness, intermittent instability and a clicking/grinding sensation in his right knee.  His pain was also exacerbated when squatting, kneeling, twisting and walking up and down hills and stairs.  His right knee pain was exacerbated by cold weather.  He restricted his activities as a result of his knee injury and was hesitant about going bushwalking and running.

61      The plaintiff continued to experience increased anxiety when travelling, particularly as a passenger.  He had reduced tolerance for inconsiderate drivers on the road.  He was irritable and frustrated by his physical restrictions and that had a negative impact on his relationship.

Work After the Accident

62      Following the accident, the plaintiff returned to work at Shade Factor in about February 2004 initially on light duties then progressing to the installation of small blinds.  He required assistance on larger jobs.  However, he was experiencing increased pain in his back and left leg and was therefore unable to continue in that role.  He was required to take a number of days off work due to acute exacerbations of lower back pain.

63      The plaintiff then took on office based work providing quotes for clients and some light factory work.  He resigned in about March 2005. 

64      In examination in chief, the plaintiff confirmed he returned to graduated light duties and then started to do a little bit of fabricating type work but never got back to his pre accident duties.  Basically, he could not do the lifting.  The heavy work was not advisable because it would have aggravated his back and he decided to give it away because he could not see himself continuing to do physical work given his back problems.

65      In cross examination, the plaintiff confirmed he returned to work on light duties with no on site installation, just working in the factory.  He denied he just returned to the work he was doing before the accident.  He required further help with lifting the systems.

66      After a period of time, the plaintiff started to do the site installation but still fairly on the light side of things with less erecting of scaffolds and other duties than prior to the accident.  The work was not as heavy however, it did aggravate the plaintiff’s back problem and “it did not feel right for him to be doing it.”

67      The plaintiff deposed that as a result of his injuries, he was unable to return to work as a stonemason or engage in other heavy physical work, like that required in the installation of external shading systems.

68      Therefore, in about mid 2005, the plaintiff completed a course to become a registered builder and obtain his builder’s licence.  He also completed an estimator’s course. 

69      In about June 2005, the plaintiff started working for Cathedral Stone as a project manager.  His first job was overseeing the restoration of St Paul’s Cathedral in Melbourne and later he worked at Queen’s College at the University of Melbourne.

70      In his job at Cathedral Stone, the plaintiff did not have to climb scaffolds or stairs but he was still able to be involved in stonemasonry – an area in which he had worked before he migrated to Australia from New Zealand when aged twenty one.

71      Whilst the plaintiff continued to be involved in stonemasonry, he was frustrated by the fairly sedentary job as he enjoyed being more active.  He then continued to experience acute flare ups of lower back pain and pain extending into his lower left leg and had to take days off work to recover.

72      In cross-examination, the plaintiff agreed that his pain was often provoked by physical activity but not work at that stage because he was pretty much office bound.

73      Sometimes when the plaintiff was working he took medication but he tried to avoid it as much as he could and he agreed that most of the time he was not taking medication.

Sporting and Domestic Activities

74      The plaintiff deposed that the aggravation of the pre existing asymptomatic lower back condition had significant impact upon social and recreational activities.  He gained weight due to his inability to exercise.

75      In the eight months before the accident, the plaintiff was sure he was doing a bit of camping and spent time outdoors.  He was probably doing a bit of cycling and walking.

76      The plaintiff had been unable to resume canoeing since the accident and was hesitant to return to that activity as paddling required constant twisting of his back.  He had difficulty riding a bike, fishing, playing tennis, cricket and football.

77      In 2006 after treatment for his knee, the plaintiff resumed playing pub cricket being very careful not to aggravate his back.  In about December 2007, he snapped his Achilles tendon whilst playing cricket.  He had repair surgery and has not played cricket since.  That injury did not cause any ongoing restriction.  His ankle is just a little bit stiff.

78      In 2006, the plaintiff played tennis half a dozen times.  His back was more of a problem when playing than his knee.  The plaintiff also started dancing classes around that time.

79      In 2006, the plaintiff was riding his bike fairly regularly to work.  At some stage after the Achilles tendon repair the plaintiff could ride a bike.  The plaintiff has not really tried riding a bike since his back surgery.

80      The plaintiff last went canoeing a while ago, sometime after the accident but he could not recall when.

81      In re examination, the plaintiff said that he could not play cricket in his present condition.  He would like to try playing tennis but he did not think he could.  He still goes fishing from time to time but his back is aggravated on the boat and he has problems fishing on the shore.  He tried swimming a couple of weeks before the hearing but it aggravated his back a little bit.  He had not actually tried to run.  He has someone mow the lawns each month because of his back pain

82      The plaintiff deposed that he experienced difficulty performing household chores and gardening and could only manage light gardening.  He experienced pain in his lower back and left leg when bending or extending his back when, for example, hanging out the washing, washing the dishes, stooping and reaching for things or cleaning his car.

Current Work

83      In about 2008, the plaintiff commenced his current employment with Contract Management Systems as a project manager.  That job involves him attending various building sites and also performing office based work – half on site and half in the office.  He does not perform any work that requires him to be on the tools.

84      In cross examination, the plaintiff disagreed that he got better wages in his current job as a project manager than he would have received as a stonemason “because nowadays tradies make quite a lot of money.”  He agreed the most he earned in one year pre accident was $24,000 and he is now earning $127,000.  He lost income in the time he was off work.  He could make more money if he had his own company but he did agree he was now earning more than he did as a shade cloth installer. 

Progress of Back Pain

85      In about late 2009 early 2010, the plaintiff’s back pain was becoming progressively worse and his right leg pain was getting worse.  He had a further flare up in March 2010 and was sent for more investigations and also for  physiotherapy with Mr Lincoln.

86      In cross examination, the plaintiff confirmed in March 2010 his back symptoms started to get quite bad.  One day, the usual niggle did not go away.  Dr Hemley was the first doctor he saw regarding this problem.  The plaintiff agreed he had surgery because of the symptoms in his right leg.  He did not attend Mr Wilde asking for surgery, but to seek help to resolve the severe pain in his right leg.  The plaintiff would have hoped, had he not had that pain, he would have gone on with his life.

87      The plaintiff was sure he had reported right leg pain to a doctor before he told Dr Hemley in May 2010.  The plaintiff told every specialist he had seen.  He told them his pain was predominantly on the left and intermittently he had a problem on the right.  Before May 2010, he had reported pain in the buttocks from time to time.

88      In re examination, the plaintiff confirmed he did not believe he had right sided problems before the accident but he was sure he had mentioned such problems over a long period since the accident. 

89      After the onset of right sided pain, the plaintiff was not improving and he was referred back to Mr Wilde, whom he saw in August 2010.  By that stage, the pain had been very bad for about three months.  The plaintiff was sent for an MRI scan and told he was required to have surgery.  A request was made to the defendant for funding in that regard.

90      The plaintiff was unable to cope during this period because of the pain and he was not working.  Mr Wilde arranged for him to have an epidural injection in his lumbosacral spine and he was placed on Norspan patches and prescribed Diazepam, Celebrex, Stilnox and Oxycontin for the pain.

91      As the defendant declined to pay for surgery, Mr Wilde arranged for the plaintiff to be placed on the public waiting list at the Austin Hospital.  The plaintiff eventually underwent surgery in May 2011 (“the surgery”), after which he was an inpatient for four days. 

92      After a period, the plaintiff commenced outpatient rehabilitation at the Austin, a six week course which he completed in about four weeks before returning to work.

93      The plaintiff’s current employer has been sympathetic about his back injury and enabled him to take two months off work and employed others to work in his position whilst he was absent for the surgery.  As the plaintiff was not in receipt of any income, he was keen to get back to work.

94      The plaintiff’s back and leg symptoms improved following the surgery.  However, he was trying to reduce his medication and was having withdrawal difficulties.  He had been using narcotic based Norspan patches.

95      The plaintiff returned to work gradually over a period of time and was able to increase to full time hours.  He had been able to cope with his work as he does not have to be on the tools and he can rest if he needs to.

96      The plaintiff continues to consult Dr Hemley once a month and he has massage about once a week, which he finds helpful.  He also sees an osteopath every two months or so and pays for the treatment himself.

97      Since the surgery, the plaintiff’s symptoms have improved greatly compared to what they were before.  He continues to experience symptoms in his back which feel more like an ache.  He has back pain when he wakes up in the morning but as he moves around, his pain improves throughout the day.  He continues to experience flare ups of back pain and from time to time, he attends mainly Dr Hemley. 

98      The plaintiff finds sitting or standing for long periods can aggravate his back.  He occasionally feels right leg pain but he is generally able to work through it.  He takes Panadeine Forte if the pain is really bad but he tries to avoid taking it as much as possible.

99      The plaintiff was shown exercises following the surgery which he tries and does most days.  He also walks for up to an hour whenever he can.

100     The plaintiff is restricted in a lot of activities on a day to day basis.  He has difficulty bending and avoids doing so whenever possible.  He is unable to work on the tools or do any stonemasonry because it is heavy manual work.  The plaintiff is able to clean his own house but he has to be careful to avoid activities which aggravate his injury.

101     In addition, the plaintiff continues to experience problems with his right knee.  It clicks at times and he experiences pain at times when walking.  He finds going upstairs and placing weight on it can be painful. 

102     The plaintiff is not having any specific treatment for his right knee given that he has been focusing on his back following the surgery but his right knee continues to give him trouble.

103     In examination in chief, the plaintiff confirmed that to the best of his recollection there has not been a time after the accident that he has not had treatment for his back.  His condition has never gone away.  There are good periods, bad periods and flare ups.

104     In cross examination, the plaintiff agreed the situation was that he would have bouts of severe exacerbation of pain in the left leg which impacted on his life for a relatively short period and then subsided again.  He agreed this was the situation until 2010 when his condition suddenly changed.

Lay Evidence

105     Mr Peter Kusack, the Director of Contract Management Systems, swore an affidavit on 12 December 2011.

106     Mr Kusack has known the plaintiff since 2005 when they met working on St Paul’s Cathedral restoration project and also at Newman College.

107     Towards the end of 2008, the plaintiff approached him advising that he was looking for alternative work as there was a shortage of projects with Cathedral Stone.  Mr Kusack then offered him a position with Contract Management Systems as a project manager.

108     Mr Kusack deposed the plaintiff was a valuable employee with a particular and unique skill set.

109     Mr Kusack was aware the plaintiff was involved in an accident but did not know about the work injury.

110     Mr Kusack confirmed that in his current role the plaintiff spends half his time on site and half his time in the office.  Mr Kusack is directly involved with the plaintiff at work on a daily basis.

111     During that time, Mr Kusack has regularly observed the plaintiff with exceptional discomfort due to his back injury.  The plaintiff experiences significant difficulty sitting for prolonged periods of time and he rarely seems comfortable.  This problem is noticeable either in meetings or whilst the plaintiff is in the office or sitting in the car.

112     Mr Kusack is aware the plaintiff has been on strong painkilling medication to help alleviate his back symptoms and whilst taking that medication, his concentration levels tend to diminish and his ability to converse, write and behave is adversely affected.  The plaintiff had spent a lot of time at home, taking time off work due to his back condition.

113     Prior to the surgery, the plaintiff’s back symptoms were impacting significantly on his ability to work.  He was rarely in attendance at work and when he was, he was very non productive due to his physical condition.  As a result, another worker had to be employed to cover the plaintiff’s projects, which was very stressful for the plaintiff.

114     Following the surgery, the plaintiff has been able to slowly build up his working hours.  However, he continues to have ongoing observable issues at work due to his back symptoms.

115     Mr Frankel swore an affidavit on 13 February 2012.  He is a close friend of the plaintiff, having known him for about twelve years, and they frequently see each other.

116     To the best of Mr Frankel’s knowledge, the plaintiff’s predominant injury since the accident has been severe ongoing back pain.  He was aware the plaintiff had hurt his back at work.  However, Mr Frankel had not observed any significant physical change or considerable symptoms of back pain prior to the accident.

117     Since the accident the plaintiff is observably less mobile.  His posture is contorted at times and he has laboured movements.  Mr Frankel can see the plaintiff grimacing often due to his back pain and at times he needs to lie down and rest to deal with his pain.

118     Mr Frankel and the plaintiff attempt to go fishing several times a year.  The plaintiff is becoming increasingly less mobile due to his back pain and he experiences significant difficulty climbing in and out of a boat. 

119     Mr Frankel believes there is a stark difference to the way the plaintiff was before the accident when he had been an active person.

120     Over time, the plaintiff’s ongoing back problem has also affected him emotionally making him observably worn down and taxing him a great deal.  The plaintiff has become increasingly upset about his back problem to the point where Mr Frankel believes that it has changed him as a person.

Plaintiff’s Medical Evidence

121     In March 2001, prior to the said date, the plaintiff was referred by his general practitioner to neurosurgery outpatients at the Royal Melbourne Hospital for an assessment of his low back pain and left sided sciatica.

122     It was reported the plaintiff had had back pain for one and a half years since an injury at work.  He had also experienced left leg pain which was worse over the month prior.  On examination there was no back tenderness.  Power, reflexes and sensation were normal.

123     The recommendation from outpatients was for the plaintiff to undergo an MRI scan.  The plaintiff did not attend follow up appointments in May, July, September 2002.

124     On 23 April 2002 Mr Tange wrote to Dr Emerson. 

125     Having seen the plaintiff that day, Mr Tange advised he was given a history by him of having eighteen months of back problems which initially just began with stiffness, particularly from working in awkward positions.  However, in the last five months the plaintiff had had problems with left sided sciatica.  These symptoms had fluctuated but had actually been getting better over the last month or so.  The plaintiff had been working for the last three weeks with some symptoms, but not too bad.

126     Mr Tange advised his interpretation of the MRI was that the plaintiff had degenerative discs at L4-5 and L5-S1 and mild bulges at those levels.  He had worsening left sided symptoms at L4-5 consistent with the MRI.

127     Mr Tange advised he had discussed this situation with the plaintiff and gone through with him the syndrome of lumbar disc prolapse.  Mr Tange explained that with the plaintiff’s symptoms improving and being able to work, surgery would not be suggested.  He thought they should wait and see if the plaintiff continued to improve symptomatically. 

128     Mr Tange advised he had gone through with the plaintiff some of the life decisions he may need to make given the fact he had two degenerate discs and that working as a stonemason was likely to produce deterioration in those discs.

Post accident

129     The plaintiff attended the Emergency Department at the Austin Hospital on the said date with right knee pain and pain in the right wrist.  A fracture of the inferior pole of the patella was revealed and the plaintiff was placed in a knee splint.

130     The plaintiff was reviewed in outpatients on 30 December 2002.  He reported lower back pain and a history of sciatica which had been managed conservatively in the past. 

131     A further review on 30 January 2003 showed the fracture was healed and the plaintiff was advised to continue wearing the splint.

132     An initial physiotherapy assessment was undertaken in January 2003.  The plaintiff then reported intermittent lower back pain with occasional lower left leg pins and needles.

133     There was a further orthopaedic review in February 2003 when the plaintiff was reportedly doing well with minimal quadriceps lag.  The plaintiff did not attend the next appointment planned in May 2003.

134     The plaintiff’s general practitioner Dr Emerson reported on 15 July 2003 that prior to the accident the plaintiff had degenerative intervertebral disc disease at L4-5 and L5-S1 with the L4-5 disc most likely resulting in irritation of the L5 nerve root causing clinical pain and numbness radiating down the left lateral leg.  The cause of pain was said to be the plaintiff’s previous manual work in 1999. 

135     Dr Emerson reported there had been an exacerbation of this injury in the accident with an initial exacerbation in pain on the left lumbar paraspinal region and radiating down the left lateral aspect of the leg.  He reported, however, the plaintiff had also been experiencing increasing lumbar pain across the right lumbar paraspinal region.  He noted he had referred the plaintiff to Mr Robin for review of both his knee and back pain. 

136     Medication then included intermittent Voltaren and Panamax and treatment involved regular daily stretches with intermittent physiotherapy and hydrotherapy.  Dr Emerson then thought the plaintiff was not fit for his pre accident employment. 

137     Dr Emerson wrote to Mr Robin on 25 June 2003 thanking him for seeing the plaintiff for management and an opinion in relation to ongoing right knee pain following the accident.  Dr Emerson also wrote to Mr Wilde on 7 July 2003 thanking him for seeing the plaintiff in relation to his back pain. 

138     Mr Wilde wrote to Mr Pitcher on 8 December 2003 following the plaintiff’s epidural injection.  He noted the plaintiff did not demonstrate a restricted straight leg raising test and there were no other neurological findings.  In examination in chief, Mr Wilde confirmed there was in fact restricted left leg raising recorded in his notes of that examination.

139     Mr Wilde noted the sciatic component of the plaintiff’s pain was resolving as predicted.  He did not make any routine follow up appointment.

140     Mr Wilde wrote to Dr Hemley in March 2005, having re examined the plaintiff.  The plaintiff had reported recently experiencing a significant exacerbation of pain especially in the left leg which lasted four or five weeks but had now completely subsided.  He had minimal pain at that time which seemed to refer into the left leg only.  Overall, the plaintiff was coping quite well as a shade cloth fitter although he felt he was putting too much pressure on his back.

141     Mr Wilde noted for that reason the plaintiff had applied for an administrative job which Mr Wilde thought was very sensible.  No follow up appointment was made.

142     The plaintiff returned to see Mr Wilde on 10 August 2010, on referral from Dr Hemley.  The plaintiff then complained of increasing back and right leg pain, the latter which had been very bad for three months. 

143     On examination, right straight leg raising was very severely restricted.  There was pain and sensory change in either L4 or L5 on the right side.  There was perhaps some sensory change on the dorsum of the right foot and the L5 nerve root.

144     Mr Wilde sent the plaintiff for a new MRI to exclude disc prolapse on the right at L4-5.

145     The MRI showed quite severe changes at L4-5 and the lumbosacral level.  There was a large prolapse on the right at L5-S1.  Mr Wilde recommended the plaintiff undergo a two level decompression and fusion surgery and requested funding from the defendant.  He also recommended the plaintiff undergo a lumbosacral epidural injection.

146     On review on 5 October 2010, the plaintiff was pencilled in for surgery on 1 November 2010 and Mr Wilde suggested he use Norspan 20 patches.

147     There was further review on 3 November 2010.  As the defendant had refused to pay for surgery, Mr Wilde arranged for the plaintiff to be put on the public waiting list and he prescribed Tramadol in addition to Norspan 20. 

148     Mr Wilde concluded the diagnosis was lumbar canal stenosis secondary to congenital pre existing canal narrowing and an acquired moderate central L4-5 disc prolapse.  As the plaintiff did not suffer with symptoms prior to the work injury, Mr Wilde felt that the injury as described had been a contributing factor.  In his view, it was likely there was a degree of asymptomatic degenerative disc disease prior to that injury.  However, the injury produced a central L4-5 disc prolapse thus precipitating symptoms.  The accident produced significant further aggravation. 

149     Mr Wilde advised at that time the prognosis without surgery was poor.

150     Mr Wilde noted the plaintiff’s lumbar spine demonstrated pre existing pathology prior to the accident.  However, the plaintiff told him that thereafter lumbar pain levels were more significant and he had not been free of pain since that time.  Mr Wilde considered the accident did not cause the pathological changes in the discs and facet joint of the lower lumbar spine but had been a significant contributing factor by aggravating pre existing change.

151     Mr Wilde suspected that the pre existing disc prolapse which had resolved, was extended following the accident.  He thought the fact that the accident occurred nine years ago was immaterial as the plaintiff quite clearly stated he had experienced chronic unrelenting symptoms since that time, whereas prior thereto lower back pain was intermittent, the sciatica had completely resolved and overall his symptoms were quite manageable. 

152     In his viva voce evidence, Mr Wilde explained the plaintiff was born with congenital stenosis - a narrowing of the spinal canal, which put him at a greater risk of neurological compression as a consequence of disc prolapse or facet joint degeneration.

153     The plaintiff had injured discs “on the way” at L4-5 and L5-S1 with central prolapse of L4-5 the most significant finding.  At various times he had complained of left and right leg pain after varying incidents.  Over the period of time he treated the plaintiff from 2003, Mr Wilde had observed a deterioration of symptoms and things just got to the point where the plaintiff could no longer manage and he ended up having surgery.

154     Mr Wilde performed a lumbar decompression laminectomy where the space of the nerve was opened and screws put in to stabilise the motion segments.  The principal pathology seen at operation was at L4-5.

155     In cross examination Mr Wilde confirmed he gave the plaintiff a lumbar epidural injection in 2003 to treat the disc prolapse at L4-5.

156     Having not seen both the 2002 and 2003 MRI films, Mr Wilde could not agree with the proposition that they were virtually identical.  He never relied on a radiologist’s report.  He based treatment decisions more on clinical science and symptoms, and the MRI was confirmation of his clinical diagnosis.

157     When the plaintiff first saw Mr Wilde in 2003, the plaintiff was complaining fundamentally of left sciatica.  He had reported right leg pain after the accident, but the left had been the predominant problem.

158     The plaintiff’s complaints at the time of the first attendance were mostly relating to the left leg, and he was not complaining of the right at that time.

159     Initially, Mr Wilde made a diagnosis of an L4-5 prolapse which was central, catching the nerve roots as they emerged under the facet joints on both sides.  One side was more symptomatic than the other.  Mr Wilde thought that  prolapse could have caused some symptoms in the right buttock or right leg.  There was no right sided neurology.

160     After the epidural injection, when the plaintiff was examined in December 2003, he felt fifty per cent better, but still had back pain.  He felt he was maybe good enough to try to find a new job, and was looking for work as a blind installer. 

161     The plaintiff returned to Mr Wilde in 2005, having had a relapse of pain.  The plaintiff complained of back pain only.  He reported the recent exacerbation lasted about four or five weeks, and now had completely subsided.

162     The plaintiff was next seen in August 2010, at which time he told Mr Wilde he had been pretty well over time, and that he had had episodes of back pain, with treatment on a regular basis.  However, when he saw him he had increasing symptoms of back pain and pain to his right ankle over the last three months. 

163     Mr Wilde agreed that the right sciatica was of such a severity that he immediately considered the plaintiff a potential candidate for operation, before which he sent him for an MRI scan.

164     Mr Wilde confirmed the earlier MRIs had shown a prolapse at L5-S1.  He agreed that something changed in that disc three months or so before the plaintiff came back to see him.

165     Mr Wilde explained most disc prolapses arise as a consequence of an annular disc tear, which often predates the prolapse by days, weeks, or years.  Presumably the first event in the chain was injury to the annulus, which does not heal very well.  Sometimes a minor sequence of events leads to a prolapse.

166     In Mr Wilde’s view, the 2002 MRI scan showed the L5-S1 disc had an annular tear, and the disc was abnormal before the accident.  He agreed that disc, without the accident, could suddenly progress to protrusion and cause right sciatica.

167     When asked whether the plaintiff could have got to this stage without the accident, Mr Wilde would rely on what the patient told him in relation to symptoms, as they were the most helpful.  It was hard to draw conclusions on the basis of radiological examinations.

168     Mr Wilde noted that the injured L5-S1 disc had been there all the way through, as had the congenital stenosis, and it had not changed dramatically until 2010 when the plaintiff was just unable to manage anymore.

169     Mr Wilde confirmed that since 2000, the history had been one of relapsing pain for many years.

170     Mr Wilde’s interpretation of the plaintiff was that he has had a two level abnormality all along, and it had “flip-flopped” between the L4-5 disc, causing left leg pain.  Since the accident, the plaintiff had reported right buttock and leg pain intermittently, and then in 2010, the right leg pain was the plaintiff’s more significant complaint.  In the end, when Mr Wilde treated the plaintiff surgically, he treated both levels and both sides.

171     Mr Wilde disagreed that the presence of right back and buttock pain did not depend on the prolapse at L5-S1.  He thought it depended on annular fissure.  Mr Wilde confirmed sciatica is not buttock pain and it has to go down to the foot.  The plaintiff’s occasional buttock and hip or thigh pain was explicable by the presence of an annular fissure.

172     In Mr Wilde’s view, if a patient said he did not have a pain before an accident, and then did so afterwards, Mr Wilde would have to accept that the pain was accident related.  He noted that if a patient had continuous pain ever since an event, and then suddenly the pain got worse, he would think the trigger event was the significant contributing factor.  On the other hand, if the patient had a period of a number of years, or a period of time between an accident, and was well, and had a normal life without pain, and then got pain, then he would attribute the onset of the pain to some other new event, even though the event may not be able to be identified.  So in that setting, what Mr Wilde thought would be critical to help him decide this issue was whether the plaintiff related continuous pain since the accident.

173     When it was put to him that he operated because of the severe right sided sciatica, Mr Wilde said he operated for both the plaintiff’s back and leg pain.  Because the plaintiff had pain on both sides, there was decompression surgery on both sides.

174     As surgery approached, Mr Wilde could not remember on what side the plaintiff’s pain was located.  The decision was taken to operate as the plaintiff could no longer cope with his relapsing pain and recurrent episodes off work.

175     If there had not been a car accident, Mr Wilde thought it highly likely the plaintiff would have had some other event or incident that would have triggered increasing pain in his right leg and got him ultimately where he required two level surgery, but the plaintiff told him that the trigger was the  accident, so Mr Wilde accepted that was the case.

176     Mr Wilde agreed without the accident, progressing in ordinary activities or daily living, the plaintiff could have got to the same situation at much the same time.

177     In re examination, Mr Wilde confirmed there were numerous complaints by the plaintiff after the accident of right sided symptoms.  Because the right sided symptoms initially settled a lot more quickly than the left, that suggested to Mr Wilde there was not a significant nerve root compression at that level.

178     Shown a photo of the damage to the plaintiff’s car in the accident, Mr Wilde confirmed there had been a significant energy or high velocity injury, but that the photo did not help at all in answering the question of causation other than to know there had been a significant jolt to the plaintiff’s back in the accident.

179     Dr Hemley reported in January 2010 that the plaintiff had been attending him since 8 February 2005.

180     On initial presentation, the plaintiff said he was in significant pain and discomfort having experienced a relatively sudden onset of pain from the previous day.  The plaintiff was then prescribed Endone and referred for physiotherapy. 

181     On 10 March 2005, Dr Hemley reported that the plaintiff’s symptoms had completely resolved and there was a full range of movement.  The plaintiff then attended in October 2005 with the recurrence of accident related back pain.

182     Dr Hemley reported the plaintiff continued to present over the ensuing years for treatment of his condition with varying degrees of exacerbation of pain and discomfort, presenting on ten separate occasions up until December 2009.

183     Dr Hemley concluded, given no prior history of a lumbar back injury, the plaintiff was suffering from lumbar disc disease at L4-5 and L5-S1 levels which had arisen directly as a result of the injuries in the accident.  He thought in the future, the plaintiff would endure greater restriction in his role of performing physically stressful work and he would continue to experience ongoing pain requiring intermittent treatment in the form of physiotherapy and medication.  He thought surgery may be necessary as time proceeded.

184     Dr Hemley most recently reported in January 2012.  He noted the plaintiff presented with a severe exacerbation of lumbar back pain with associated right sided sciatica on 6 May 2010 after which he was referred to Mr Wilde.

185     Dr Hemley reported during the following months, the plaintiff regularly presented for pain management and was unable to concentrate due to pain as his pain progressed.  Dr Hemley noted Mr Wilde recommended surgery in August 2010.

186     At that time, the plaintiff was becoming habituated to Oxycodone and Norspan patches that were prescribed.  He then found it necessary to cease work altogether.

187     In October 2010, the plaintiff elected to have surgery but had to wait on the public waiting list until 19 June 2011.

188     Dr Hemley noted after the surgery the plaintiff made an initial remarkable recovery.  However, he did suffer exacerbations of lumbar back pain as a result of extended physical exertion.

189     Dr Hemley encouraged the plaintiff to take a self directed hydrotherapy program.  He noted the plaintiff had problems with narcotic withdrawal.

190     Dr Hemley reported the plaintiff was last seen on 7 November 2011 having suffered an exacerbation several days earlier.

191     Given the nature of the plaintiff’s work, Dr Hemley thought his back condition would limit his capacity to perform physical work indefinitely but should not impact on his organisational, management role.

192     Mr Buultjens, osteopath, treated the plaintiff on eight occasions between 10 September 2008 and 3 June 2009.  Mr Buultjens had no knowledge of the accident.

193     Mr Buultjens recently reported that he last saw the plaintiff in February 2012, having first seen him in March 2007.  The plaintiff initially presented with complaints of pain from the right side of his lower back, through his buttock, and down his right leg.  He also complained of left calf pain.  Pain varied depending on activity and daily activities were a struggle.  The main focus of treatment was on acupressure.

194     Robert Venn, shiatsu therapist, reported on 14 February 2012 recommending ongoing treatment.  He initially treated the plaintiff nine times in 2007.  He then treated him regularly having seen him sixty times until February 2012.

195     The plaintiff was seen by physiotherapist, Matthew Radford, during 2007.

196     The plaintiff told him since the accident he had different pain compared to his pre accident symptoms.  On the left side, the pain radiated to his foot and to the right side, to his buttock and thigh.  Mr Radford’s assessment was of a sub acute disc derangement syndrome.  He gave the plaintiff neural self mobilising exercises to do at home.

197     Mr Pitcher, physiotherapist, commenced treating the plaintiff in January 2003, at which time the plaintiff stated he had suffered back and left leg pain since the accident. 

198     Mr Pitcher thought the plaintiff’s pain was of discal origin noting a disc prolapse at L4-5 could cause a broad band of pain to both the right and left lumbar areas.  He noted the plaintiff’s right knee improved significantly but his activities were restricted by his back condition.

199     Mr Pitcher reported the plaintiff had no problems with left leg sciatica or back pain in the three months before the accident and that the accident aggravated the L4-5 disc.  He also noted the plaintiff had recovered well from his right knee injury.

200     The plaintiff last attended Mr Pitcher in November 2006 at which time his back injury had improved but was far from resolved. 

201     A number of disability questionnaires, completed by the plaintiff at Mr Pitcher’s request were relied upon by the parties .

202     Mr Lincoln, physiotherapist from Plenty Road Physiotherapy Clinic, first saw the plaintiff in April 2009 on referral from Dr Hemley.  He reported the plaintiff had a long history of ongoing deep lumbar spine/ left lower limb symptoms following a motor vehicle accident.  There had been an acute exacerbation in early May 2009.

203     Mr Lincoln thought the plaintiff’s employment would need to be aware of aggravating factors i.e.  bending, twisting, sitting for more than thirty minutes and lifting more than ten kilograms.

204     The diagnosis was disc desiccation with resultant nerve root irritation.  Considering the chronicity of the symptoms and continued acute on chronic exacerbations, Mr Lincoln thought the plaintiff’s symptoms were unlikely to ever settle. 

205     The plaintiff saw myotherapist, Ms Baggallay, from October 2010 until March 2011.  The plaintiff presented with complaints of constant pain throughout most of his body, in particular, sharp, shooting pain and intermittent numbness from the right side of his lower back, through his buttock, and down his right leg.  He also complained of left calf pain. 

206     Daily activities were a struggle and the plaintiff occasionally had to take a day off or work from home when his pain was too intense.  On examination, the plaintiff’s muscles were in severe spasm.  Ms Baggallay provided treatment in the form of massage and stretching which was temporarily able to help alleviate the accompanying muscle spasm and associated pain

207     In November 2010, the plaintiff was referred to the Austin by Mr Wilde for an L4-S1 decompression and fusion.  It was reported disc prolapses had been seen on MRI and the plaintiff had severe sciatica.

208     On examination on 25 November, the plaintiff reported a long history of lower back pain that had been aggravated by the accident with steady deterioration since and he was placed on a waiting list for an operation.

209     In April 2011 the plaintiff’s general practitioner referred him again for orthopaedic review as his pain levels had increased.

210     The plaintiff was admitted into the Orthopaedic Unit on 19 May 2011 for an L4-5 and L5-S1 decompression fusion.  He was discharged home on 24 May and he attended outpatient physiotherapy regularly over the following months.

211     The plaintiff was seen in the orthopaedic clinic on 13 October when he was still having physiotherapy.  It was noted that he was able to work with some limitations secondary to pain.  The plaintiff was discharged though a further review was suggested in six months if he had ongoing pain.  The plaintiff continued to attend physiotherapy until December 2011, by which time he had improved and returned to work with minimal pain.

Medico-Legal

212     Dr Sedal, neurologist, examined the plaintiff on 13 September 2006.  The plaintiff told him his right knee was fine.  Back pain was in the centre but it could go down the left buttock and down the left leg.  Over the last two months, pain had also been going down the plaintiff’s right leg and buttock.

213     On examination, there was some weakness of dorsi flexion of the right big toe and ankle and also of eversion of the right foot to a level of 4/5.  Plantar flexes were down going and there was no sensory loss in the legs.

214     Dr Sedal thought the plaintiff had an aggravation of a pre existing back injury in the accident and understood from the background material that he had a lumbar canal stenosis and an L4-5 disc bulge.  The plaintiff had weakness in a predominantly L5 distribution suggesting he had radiculopathy at that level.  From a neurological point of view, Dr Sedal thought the plaintiff’s condition had stabilised.

215     Mr Kevin King, orthopaedic surgeon, first examined the plaintiff in January 2007.

216     The plaintiff told him of the work injury and that back pain apparently settled over about twelve to eighteen months, as did left sided sciatica, apart from occasional mild discomfort in both regions.

217     After the accident when he began to mobilise, the plaintiff became conscious of low back pain and left sided sciatica, and those symptoms had persisted.  He was also conscious of neck pain which largely settled over the next year, the continuing problem being backache radiating into the right sacroiliac joint.

218     On examination, the plaintiff’s main worry was the persistent nagging ache in the low back region radiating to the sacro iliac joint, always present and fluctuating in intensity.  There was an intermittent ache in the left thigh and calf present one or two days a week and occasional mild ache in the right buttock and upper thigh. 

219     Mr King did not have available the 2002 MRI but he was provided with the 2003 study.  He thought it would be a reasonable clinical compromise, given the plaintiff’s history, to attribute two thirds of his current impairment in the low back to the effects of the accident, and another third to the work injury.

220     Mr King re examined the plaintiff in March 2009.  The plaintiff told him he continued to be troubled by backache with some radiation to the left lower limb with fluctuating symptoms and severe acute flare ups.  His main problem then continued to be persistent lower lumbosacral back pain, an intermittent ache in the left thigh and calf which was usually mild, and similar mild symptoms in the right buttock and thigh.

221     Mr King thought the plaintiff seemed well motivated and he could manage his current light supervisory duties without difficulty.  Mr King did not expect any significant deterioration to occur in the future if the plaintiff confined himself to his present relatively sedentary occupation. 

222     Mr King’s view as to the apportionment of the plaintiff’s impairment was unchanged.

223     Mr Schofield, orthopaedic surgeon, first examined the plaintiff in June 2009.  The plaintiff then continued to complain of low back pain which was felt in the mid line.  He also had referred left leg pain.  There was no problem with his right leg, although he did have occasional pain in the right buttock.

224     Mr Schofield concluded the plaintiff sustained injury to the L4-5 disc as a result of the work injury.  Mr Schofield noted the presence of the congenitally narrow canal and the acquired disc bulge caused significant pain and limitation of movement. 

225     Mr Schofield noted that eventually the plaintiff resumed work and went to a lighter job.  However, it could not be stated the disc or discs had totally healed at the time of the accident.  The MRI showed the major area was arising from the lumbosacral disc.

226     Mr Schofield felt the severe impact of the accident caused an aggravation of degenerative change of the lower two lumbar levels, with the major current prolapse being at L4-5.  He suggested a further MRI.  On balance he thought that in the long term, the plaintiff would require surgery to decompress and stabilise the two lower lumbar levels.

227     Mr Schofield re examined the plaintiff in October 2011.

228     On examination, Mr Schofield found reduced sensation over the right outer thigh and calf.  There was a slight loss of normal lumbar lordosis, reduced extension and two centimetres wasting of the left thigh.

229     Mr Schofield noted that following surgery, the plaintiff continued to have a much reduced degree of back pain which he said was more of an ache.  He had an occasional right leg ache which was much less than previously.  X‑rays were arranged which did not show any evidence of incorporation of bone grafts in either of the areas. 

230     Mr Schofield thought the plaintiff’s condition following the surgery had not stabilised with the prognosis being uncertain with no evidence of bone grafting incorporation.  He thought there was current evidence of radiculopathy with wasting of the left buttock and sensory change in the right buttock, otherwise neurological examination was normal.

231     Mr Schofield agreed with Mr Wilde that it was quite clear the plaintiff did have a disc prolapse caused by an injury at work.  Although his leg pain settled with time, the plaintiff was left with some minor discomfort and evidence of degenerative changes affecting the lower two lumbar limbs.  The accident was therefore an aggravation causing significant increase in the plaintiff’s pain and inability to resume any work or a protracted period followed by much less physical work from then on. 

232     Mr Schofield thought stabilisation from the major surgery might take two or three years to settle depending on the rapidity of the bone graft incorporation.

233     Associate Professor Stark, neurologist, examined the plaintiff in April 2011, just prior to the surgery.

234     At that time, there was pain in the right lower back radiating to the right buttock similar to previous flare ups but the flare ups had almost universally involved the left leg.

235     Professor Stark noted a further flare up in early 2010 associated for the first time with right sided sciatica and also that the current MRI showed a large right postero lateral disc prolapse at L5-S1 which was not present in 2003.

236     Professor Stark thought the basis for the plaintiff’s low back problems was complex.  In his view, there seemed to be no doubt that the accident had contributed but it was difficult to quantify how much of the plaintiff’s current symptoms related directly to it.

Investigations

237     Dr Watts organised a CT scan of the plaintiff’s lumbosacral spine on 26 June 2001.  It was reported that it was an unremarkable study apart from mild asymmetrical right paracentral bulging of the L5-S1 disc without any significant posterior component. 

238     Dr Streckfuss organised an x-ray of the lumbosacral spine on 24 August 2001.  It was reported there was a mild curve present convex to the left.  The alignment on the lateral was satisfactory.  The disc space heights and vertical bodies appeared normal.  The lower facet joints were not clearly demonstrated but there was no obvious abnormality. 

239     Professor Kaye organised an MRI of the lumbosacral spine on 26 March 2002.  It was reported that the L5-S1 intervertebral disc was degenerate with broad based disc bulging and a more focal central protrusion seen in association with an annular fissure.  That indented the thecal sac anteriorly but only just contacted the right budding S1 nerve root.  Laterally it did not appear to result in significant exit foraminal stenosis and only just contacted the L5 nerve root beyond the neural exit foraminae. 

240     Significant L4-5 disc bulge was also seen with a more focal central protrusion.  This resulted in a moderate central canal narrowing with significant narrowing of the lateral recesses and likely impingement upon the L5 nerve roots, at that point, as they bud from the thecal sac and into the lateral recesses.  Those changes were superimposed on a congenitally narrow canal.  The other levels were otherwise unremarkable.

241     It was concluded there were degenerative intervertebral discs at L4-5 and L5-S1 with the L4-5 disc most likely resulting in irritation of the L5 nerve roots as they bud from the thecal sac.

242     Mr Wilde organised an MRI of the lumbar spine on 16 September 2003.  It was reported there was two level – L4-5 and L5-S1 disc degeneration with congenital small canal at L4-5 exacerbated by central disc protrusion.  That resulted in mass effect of the theca and both L5 nerves, more on the left than the right.

243     Dr Hemley organised a CT scan of the plaintiff’s lumbosacral spine on 2 April 2009.

244     It was reported there was posterior L4-5 and L5-S1 disc bulging presumably from early disc degeneration.  The L4-5 disc bulge was producing a mild to moderate acquired central canal stenosis.  No disc protrusion was noted.

245     Mr Wilde organised an MRI of the lumbar spine on 11 August 2010.  It was reported there was moderate to marked postero lateral disc protrusion at L5-S1 compressing the right S1 nerve root.  There were less marked degenerative changes at L4-5, at which level moderate broad based disc bulge caused mild to moderate asymmetric canal stenosis worse to the left and also a central annular fissure was also confirmed.  The exiting L4 nerve roots were not compressed.  Overall, there was moderate canal stenosis slightly worse to the left.

Defendant’s Medical Evidence

246     Dr Emerson wrote to Mr Tange on 6 April 2002 thanking him for seeing the plaintiff who had a history of back pain, particularly with his left side L4-5 dermatome affected.

247     Dr Emerson advised the plaintiff’s MRI demonstrated significant disc bulging and nerve root impingement and he felt he probably warranted expert micro discectomy so he could return to work as soon as possible.  He noted even though the plaintiff was not insured privately, he was prepared to pay to have surgery, as there was nothing he wanted more than to return to work as soon as possible.

248     Mr Robin, orthopaedic surgeon, reported in March 2004 noting that he had first seen the plaintiff on 1 July 2003 following referral by Dr Emerson for assessment of his right knee injury and back problems.

249     Mr Robin’s report dealt predominantly with the plaintiff’s knee injury but he noted when he saw the plaintiff, the plaintiff was not complaining of significant lumbar symptoms nor were there any signs of significant lumbar disc pathology.  Mr Robin noted the pre existing L4-5 lumbar disc injury appeared to have been aggravated temporarily during the accident.

Medico-Legal

250     Mr Shannon, orthopaedic surgeon, provided a number of reports, having first  examined the plaintiff in July 2005.

251     The plaintiff told him he first noticed a back problem about two weeks after the accident.  His pain was in the right side of the low back and he had no sciatica at that stage.  About one or two months later, he started to get pain in the left leg, predominantly in the buttock and thigh, but occasionally some soreness on the lateral aspect of the lower leg.

252     The plaintiff’s right knee was settling reasonably well but his back was intermittently sore and he lost odd days from work.  He felt his back was aggravated by work and he eventually resigned in February 2005 and had recently got an administrative job.

253     The plaintiff advised his back ached on and off, mainly on the right side of the lower back.  He had had no recent sciatica although his back had been stiff in the last week.  His knee got a little sore at times and he had a problem with stairs.

254     The plaintiff told Mr Shannon six months prior to the accident his back was relatively pain free and he had no sciatica.  The plaintiff told him of the work injury, chiropractic attendances, x-rays, time of work and an MRI scan.

255     Mr Shannon noted an MRI of the lumbar spine in 2002 and one in September 2003 were remarkably similar with the latter showing disc degeneration at L4-5 and L5-S1 with slightly larger central disc bulge at L4-5 and mild generalised bulging at the lumbar disc.  He diagnosed a fractured right patella and possible aggravation of pre existing lumbar disc degeneration. 

256     In terms of the plaintiff’s pre accident condition, Mr Shannon noted the description of his MRI scan confirmed significant degenerative change and disc bulging.  He did not think it could be argued that the plaintiff’s back condition had completely resolved and, indeed, his back would be regarded as vulnerable to further injury.  Whilst he had no difficulty in accepting the plaintiff’s back condition was aggravated by the accident, Mr Shannon was unable to establish the accident had resulted in any permanent damage in the back condition, a position supported by the MRI scans before and after the accident. 

257     Mr Shannon thought the plaintiff’s labouring days were already limited prior to the accident and it was now appropriate for him to do administrative work.

258     Mr Shannon re examined the plaintiff in January 2007.  The plaintiff then told him that his knee was in fairly good condition, getting sore in the cold weather and there was some aching in the patella.  His knee tended to give way on occasion.  The plaintiff had mild restriction of thoracolumbar flexion and extension.  Straight leg raising was to eighty degrees.  No new investigations were available.

259     Mr Shannon noted there had been little change in the plaintiff’s knee condition since the previous examination.  In regard to his back, the plaintiff had ongoing symptoms and signs consistent with degenerative disc disease which pre existed the accident.  As he previously indicated, Mr Shannon thought it likely the accident had aggravated the underlying degenerative change but he doubted it resulted in an alteration in the plaintiff’s level of impairment.  He mentioned the fact that the plaintiff had been out of work for a year before the work injury but stated the fact the plaintiff claimed he was pain free in the six months before the accident was significant.

260     Mr Shannon was provided with Dr Emerson’s letter of April 2002 which he thought contrasted with the plaintiff’s history of being pretty much okay prior to the accident.  Mr Shannon thought Dr Emerson’s notes tended to support the proposition that the plaintiff had an ongoing significant back problem.

261     Mr Shannon was asked to comment on proposed 2010 surgery.  He noted MRIs before and after the accident showed significant degenerative change at both levels with some disc bulging.  He noted the general consensus was that the L4-5 disc prolapse was more significant, although he noted the original MRI scan prior to the accident showed a small right sided disc protrusion at L5-S1. 

262     Mr Shannon was not able to assess an impairment attributable to the accident because he could not establish there had been a significant change in the plaintiff’s impairment as a result thereof.

263     Taking into account the plaintiff was off work for a year before the work injury, Mr Shannon thought the predominant contributing factor to the plaintiff’s condition was that injury.  Also, it appeared the significant contributing factor to the plaintiff’s symptoms at that time was an L4-5 disc prolapse with left sided sciatica.

264     Mr Shannon noted the present MRI appeared to be showing very little change from the previous at L4-5 but there was now a moderate to severe right postero lateral disc protrusion at L5-S1 compressing the right S1 nerve root.  The significant disc prolapse at L5-S1 appeared to have occurred recently whilst Mr Schofield acknowledged that disc was certainly degenerate previously and there had been a right sided bulge.  Mr Shannon noted there was no history whatsoever to indicate what had happened in the past three years or whether it had been a purely spontaneous disc prolapse.

265     Mr Shannon noted the description of the present MRI would suggest the plaintiff had significant pathology at both levels.  He thought it appeared the plaintiff had significant right sciatica and he had no reason to doubt Mr Wilde’s opinion that the plaintiff had a very large disc prolapse causing high grade S1 radiculopathy, noting the two level pathology including significant pathology at L4-5. 

266     Mr Shannon agreed with Mr Wilde that a simple laminectomy would not be expected to produce a satisfactory outcome.  Therefore, on the information available, Mr Shannon thought two level decompression and stabilisation with pedicle screw fixation was appropriate.

267     Mr Shannon confirmed it had never been his opinion that the plaintiff’s back condition was significantly related to the accident, although he accepted there had been some aggravation.  He noted the situation was further complicated by the fact the plaintiff had now developed a major right sided disc prolapse which was quite different from the sciatic symptoms when earlier examined. 

268     Mr Shannon thought the requested surgery was reasonable and the immediate factor which led to the request for surgery was substantial right sided prolapse not caused by the accident.

269     Mr Shannon concluded it was impossible to predict whether the plaintiff would have developed a major disc prolapse in the absence of the accident, noting it was certainly true that he had significant disc degeneration and a small disc protrusion on the right side prior thereto.

270     Having been provided with Mr Wilde’s report and also a report from Dr Hemley, Mr Shannon concluded clearly the development of S1 nerve root radiculopathy on the right side was a new condition.  He noted review of Dr Hemley’s file indicated no significant history of right lower limb symptoms, although previous scans had shown some bulging at L5-S1 present prior to the accident.

271     Mr Shannon noted therefore the situation would appear to be the plaintiff had developed a substantial right sided lumbosacral disc prolapse in 2010 and that that had been on the basis of recurrent episodes of back pain which were being aggravated by his employment.

272     Mr Shannon thought that the large disc prolapse described was not significantly related to the accident on the basis that the development of right sided symptoms had occurred some eight years thereafter, as had the development of the large right sided lumbosacral disc prolapse.  He nevertheless agreed that surgery was appropriate.

273     Mr Shannon re examined the plaintiff in February 2012.

274     The plaintiff confirmed he had a major flare up of pain in 2010 which came on for no specific reason.  It started as a niggle but gradually got worse and did not settle.  The plaintiff developed right sciatica affecting predominantly the lateral aspect of the thigh and lower leg and dorsum of the foot.

275     The plaintiff told Mr Shannon the surgery had helped him considerably and he had been able to stop most medication.  He was coping with his work reasonably well.  He had central low backache extending to both sides of the back but not into the leg, with a vague ache in the right leg.

276     On examination, thoracolumbar movements were limited by about a third and straight leg raising was to sixty degrees and the plaintiff had a diminished left ankle reflex with two centimetres of wasting of the left lower leg which Mr Shannon thought probably related to his Achilles tendon rupture.  Mr Shannon saw the April 2009 CT scan, the quality of which was not good, noting there was apparently some disc bulging at L4-5 and L5-S1 and spinal canal stenosis at L4-5.

277     Mr Shannon thought of more significance was the MRI in August 2010 which was after the development of right sciatica, and that showed two level disc degeneration with moderate disc bulging at L4-5 as previously noted and a significant right postero lateral disc protrusion at L5-S1 compressing the nerve root.

278     Mr Shannon confirmed the findings on the 2002 and 2003 MRIs were virtually identical.

279     Mr Shannon again referred to the work injury.  He noted the plaintiff’s statement that he returned to work in early 2002 as a stonemason and was able to cope with that work was at odds with the referral to Mr Tange in April 2002 and Dr Emerson’s letter to Mr Tange at that time setting out that the plaintiff was then unable to work and was keen to pursue back surgery.

280     Mr Shannon noted it would appear between 2003 and 2009, the plaintiff’s back was tolerable although he did see Mr Wilde in 2005 who, at that time, was primarily concerned with the central L4-5 disc prolapse which he directly attributed to the work injury and the subsequent aggravation by the accident.

281     Mr Shannon noted it appeared the plaintiff then did not consult Mr Wilde until 2010 when he developed right sciatica as opposed to previous left sided symptoms and, in Mr Shannon’s view, that was clearly the result of a large right sided lumbosacral disc prolapse.

282     Mr Shannon noted although there had been some previous disc bulging at that level, it had not been previously considered to be at the symptomatic level.  In his view, it was not clear, if anything, what precipitated the prolapse because the plaintiff was doing essentially administrative work.

283     Mr Shannon also noted, after the plaintiff saw Mr Wilde in 2005, that he had become quite active and he had ruptured his Achilles tendon playing cricket.

284     Mr Shannon noted the plaintiff was operated on at two levels - entirely appropriate treatment, not only for his recent disc prolapse, but also for pre existing degenerative change at both levels present prior to the accident.

285     Mr Shannon therefore remained of the view that the accident was probably aggravating the underlying degenerative change in the lumbar spine and did not produce new pathology.  He thought that the significant disc prolapse which occurred some eight years after the accident could not be reasonably attributed to that accident, particularly as the major pathology was in a different disc and the sciatica was on a different side.

Other Evidence

286     The defendant relied upon a summary of the plaintiff’s individual tax returns.

287     Prior to the accident the plaintiff’s highest earnings per annum were $24,000.  Thereafter, particularly in more recent times, his earnings exceeded $80,000, with the 2011 assessment setting out earnings of $127,384.

Overview

288     I am satisfied that the plaintiff suffered an injury, namely aggravation of degenerative changes at L4-5 and L5-S1, as a result of the accident.

Pre-existing

289     In this matter where the plaintiff had a back problem prior to the accident, I must consider what the evidence discloses as to that prior condition and decide whether the additional impairment resulting from the accident is serious and long term.

290     In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.  …”

291     Clearly the plaintiff had a work injury in 2000 after which he had a period of time off work.  Following the work injury, the plaintiff’s symptoms were left sided only.  He received chiropractic treatment and attended his general practitioner, who referred him to orthopaedic specialist Mr Tange.

292     The plaintiff last saw Mr Tange in April 2002, at which time he thought the plaintiff’s condition was improving and he did not recommend surgery.  Following that date, until the end of that year, the plaintiff did not take any medication or have any further treatment for his back.  He did not attend outpatient examinations at the Royal Melbourne Hospital which were arranged later that year.

293     Whilst a career change from stonemasonry was recommended by Mr Tange, the plaintiff continued in that role until July 2002 when he obtained employment with Shade Curtains as a blind installer. 

294     That job involved physical work, but not as heavy as stonemasonry work.  The plaintiff was required to erect scaffolding and work therefrom putting up blinds, a job he usually did with another worker.  There was also an amount of lifting involved.

295     Whilst in that role, the plaintiff did not require treatment or medication and he was able to perform his duties without difficulty. 

296     Further, at the end of 2002, just before the accident, the plaintiff was doing some stonemasonry work on a private home.  Again he had no difficulty doing that work.

297     This was not however, the history upon which Mr Shannon based his opinion. 

298     Prior to the accident the plaintiff was leading a normal social and domestic life and enjoyed outdoor activities, although not playing any particular competitive sport.

299     In the absence of the need for treatment and the plaintiff’s ability to cope with his work and other activities generally, I accept that he did not have a back problem of any significance at the time of the accident, although there was some discal abnormality shown in the 2002 MRI at L4-5 and L5-S1.

300     Applying the test in Petkovksi v Galetti supra, I must compare the plaintiff’s pre and post accident condition in deciding whether the accident related impairment in itself is serious.  It is not a matter of considering the medicine alone, particularly the presence of the discal abnormalities shown on 2002 investigations as senior counsel for the defendant submitted.

301     The statutory definition requires that it is the impairment which is to be assessed as being or not being serious.  The injury which gives rise to the impairment is not itself the subject of evaluation- Humphries v Poljak supra at 134, and Winneke P in Richardsv Wylie supra at 86. 

302     The principles set out in Petkovski supra have recently been followed by the Court of Appeal in and De Agostino v Leatch [2011] VSCA 249 where there was a heavy concentration by the Court on the plaintiff’s pre accident condition and level of functioning. Senior Counsel for the plaintiff also relied on the decision of the Court of Appeal in Spence v Gomez [2006] VSCA 48 at paragraphs 83 to 85 per Nettle J in this regard.

303     The next issue for consideration is whether the plaintiff continues to suffer the effects of his accident related back injury and whether the consequences thereof are serious.

304     There are two competing medical views in this regard.  Mr Wilde considered that the plaintiff’s accident back injury contributed to the need for surgery and plays a continuing role in the plaintiff’s condition whereas Mr Shannon thought there was only a temporary aggravation of the plaintiff’s back condition in the accident and the right sided prolapse is a new pathology, unrelated to the accident. 

305     The resolution of this issue depends largely upon a consideration of the  progress of the plaintiff’s condition from the time of the accident until the need for surgery some nine years later.  In that regard, much turns on the plaintiff’s own evidence as to his condition during that time and the need for treatment and medication.  Medical opinion is also relevant in this regard.

306     When considering this issue, I see no reason not to accept, as has treating surgeon Mr Wilde, that the plaintiff is a genuine man who has continued to complain of back problems since the accident.

307     I found the plaintiff to be a truthful, credible witness who did not overstate the extent of his symptoms or restrictions.  His strong work ethic has been demonstrated both on his return to work after the accident and in more recent times after the surgery.

308     Whilst Mr Wilde agreed the plaintiff may have come to surgery in the absence of the accident injury, the plaintiff can still succeed in this application if he establishes that the accident injury contributed to the need for the surgery and continues to contribute to the ongoing consequences as at the hearing date and that such consequences are serious.

309 As Ashley JA held in Dressing v Porter (2006) VSCA 215 at [47]:

“If by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences.”

310     As Mr Wilde explained, the accident injury was a trigger which set off the aggravation of the degenerative process leading ultimately to the surgery.  Throughout the course of treating the plaintiff, Mr Wilde observed a deterioration of symptoms until it reached the point where the plaintiff could no longer manage and he ended up having surgery.

311     Other medical practitioners involved in the plaintiff’s care found the plaintiff’s condition deteriorated progressively from the time of the accident until the surgery.  Dr Hemley reported the plaintiff continued to present from 2005 for treatment of his condition with varying degrees of exacerbation of pain and discomfort, presenting on ten separate occasions up until December 2009.

312     Mr Lincoln, physiotherapist reported an acute exacerbation in early May 2009 and reported the plaintiff had a long history of ongoing deep lumbar spine/ left lower limb symptoms following the accident. 

313     Medico legal examiners Mr King in 2007 and 2009 and Mr Schofield in 2009 were told by the plaintiff of ongoing back problems from the time of the accident.

314     Whilst there was only a clear indication of right sided sciatica in 2010, the plaintiff had right sided symptoms up until that time.  Dr Sedal found right sided radiculopathy on examination in 2006.  Further, the plaintiff reported right sided back pain to his physiotherapist Mr Pitcher on numerous occasions between early 2003 to mid 2006.

315     During 2007 the plaintiff complained to his physiotherapist Mr Radford of pain on the right side radiating into his buttock and thigh.  He made similar complaints to his osteopath from that time.    

316     The plaintiff reported occasional mild ache in his right buttock and thigh when examined by Mr King in 2007 and 2009 and told Mr Schofield of occasional right buttock pain on examination in 2009.  The plaintiff told Mr Shannon of aching mainly on the right side of the lower back when first examined by him in 2005. 

317     The plaintiff did not describe any particular episode in 2010 setting off his right sided pain.  One day his usual level of pain did not go away and persisted to the point where it became unbearable. 

318     I accept that the deterioration in 2010 was part of the progression of the accident related condition.  The presence or otherwise of sciatica does not determine the issue.  As Mr Wilde explained, that was part of the natural progression of the plaintiff’s back condition which had been continuing from the time of the accident.

319     Mr Wilde thought the fact that the accident occurred nine years ago was immaterial as the plaintiff quite clearly stated he had experienced chronic unrelenting symptoms since that time, whereas prior thereto lower back pain was intermittent, the sciatica had completely resolved and overall his symptoms were quite manageable.

320     Mr Wilde’s interpretation of the plaintiff was that he has had a two level abnormality all along, and it had “flip-flopped” between the L4-5 disc, causing left leg pain.  Since the accident, the plaintiff had reported right buttock and leg pain intermittently, and when he came back to see him in 2010, the plaintiff’s   right leg pain was his more significant complaint.

321     The surgery was not performed only in respect of the recent increase in problems associated with the L5-S1 disc.  As Mr Wilde explained, surgery was performed to treat problems on both the left and right sides and at both levels.  The major pathology found on operation was at L4-5.

Consequences

322     I accept that although the surgery has been largely beneficial, the plaintiff continues to experience back pain and at times severe flare ups as confirmed by both lay and medical witnesses.

323     Mr Kusack, a director of the plaintiff’s employer, whose evidence was unchallenged, deposed that after the surgery, the plaintiff has continued have problems with his back that are observable whilst at work.

324     Whilst Dr Hemley noted after the surgery the plaintiff made an initial remarkable recovery, the plaintiff did suffer exacerbations of lumbar back pain as a result of extended physical exertion.  When the plaintiff was seen in November 2011, Dr Hemley reported the plaintiff had suffered an exacerbation several days earlier.

325     I accept the plaintiff’s evidence that he has never been free of back pain since the accident.  Post surgery, he continues to experience an aching in his back.  He wakes with back pain which improves during the day as he becomes more mobile.  He continues to have flare ups of back pain from time to time.  Standing or sitting for extended periods can aggravate his back.  Right leg pain is now only occasional.

326     The plaintiff is restricted in a lot of activities on a day to day basis.  He has difficulty bending and avoids doing so whenever possible.

327     The plaintiff still requires hands on treatment, as has been the case since the accident on a continuing basis.

328     That treatment has included physiotherapy from Mr Pitcher from 2003 to November 2006 and ongoing massage from 2007 from Mr Venn.

329     The plaintiff received physiotherapy treatment from Mr Radford four times in 2007.  The plaintiff underwent osteopathic treatment from Mr Buultjens from September 2008 and regularly thereafter.  The plaintiff saw Mr Lincoln, physiotherapist in April 2009 for three treatments.

330     The plaintiff attended osteopath Ms Bagally from October 2010 to March 2011 on sixteen occasions and continues under her care.

331     Following attendances with Mr Wilde in 2003 and again in 2005, the plaintiff ultimately came to surgery in 2010. 

332     The plaintiff has been resistant to taking medication save for periods of flare ups and when his condition deteriorated leading to surgery.  He now takes Panadeine Forte if the pain is really bad but he tries to avoid taking it as much as possible.

Work and Other Activities

333     Following the accident, the plaintiff had a considerable period of time off work not resuming his duties with Shade Factor until February 2004. 

334     After the accident, the plaintiff was no longer unable to engage in stonemasonry and he had difficulty with even the Shade Factor job leading to a career change now working in more managerial and supervisory roles after obtaining further qualifications. 

335     Whilst on one view the plaintiff is clearly better off financially in his current job, he has lost the enjoyment of his trade and he is restricted in employment opportunities.  He is unable to do any significant hands on work in any job or at home. 

336     The preponderance of medical opinion is that the plaintiff is no longer capable of working in his trade or engaging in heavy physical work as a result of his back condition.

337     Recreationally, the plaintiff has been unable to pursue any of the activities he enjoyed before the accident such as canoeing, playing tennis or bike riding.  The problems the plaintiff experiences with activities such as fishing was confirmed by his friend Mr Frankel whose evidence was unchallenged.

338     Further, the plaintiff has to be careful in terms of various activities he performs on a daily basis.

339     When considering the consequences of the plaintiff’s physical injury, I am also entitled to take into account the expected emotional response of the plaintiff thereto as Winneke P set out in Richards v Wylie supra.  I accept that as a result of his back condition, the plaintiff is at times frustrated and upset by his level of pain and restriction and the impact of his back injury on his life.  This situation was confirmed by Mr Frankel.

340     As the plaintiff continues to suffer back pain and restriction some nine years after the accident and these problems have persisted despite the surgery, I am satisfied that his impairment is long term.

341     Taking into account all the evidence, I am satisfied that the plaintiff has a serious injury in relation to his lumbar spine.  Accordingly I grant the plaintiff leave to bring proceedings for damages in relation to the accident.

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