Stevens v Masters Home Improvement Australia Pty Ltd
[2018] VCC 114
•9 March 2018
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-02495
| RACHELLE PATRICIA STEVENS | Plaintiff |
| v | |
| MASTERS HOME IMPROVEMENT AUSTRALIA PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 29 January and 1 and 2 February 2018 | |
DATE OF JUDGMENT: | 9 March 2018 | |
CASE MAY BE CITED AS: | Stevens v Masters Home Improvement Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 114 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lower back – pain and suffering only – credit of the plaintiff – whether plaintiff’s pain and suffering consequences are contributed to by both impairment of the function of her lower back and impairment of her mental state – onus on plaintiff to disentangle one from the other
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: The plaintiff is granted leave to bring a proceeding at common law for pain and suffering.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Ms S Lean | Maurice Blackburn |
| For the Defendant | Mr A Moulds QC with Ms G J Cooper | Wisewoulds |
HIS HONOUR:
Introduction
1 The plaintiff suffered injury to her lower back in the course of, and within the scope of, her employment with the defendant. She said that the injury occurred during June and July 2011, and in particular, on 11 July 2011, due to the arduous nature of the work she performed.
2 The plaintiff contends that the pain and suffering consequences of the impairment of function of her lower back are “serious”. She makes no claim for loss of earning capacity consequences.
3 Mr A McNab appeared with Ms S Lean of counsel for the plaintiff. Mr A Moulds QC appeared with Ms G J Cooper of counsel for the defendant.
The issues
4 The defendant’s focus was mainly directed to the plaintiff’s creditworthiness and reliability, and whether the work she undertook at a restaurant in Bowral demonstrates that she is currently fit for work in hospitality and, if so, that speaks against her contention that the pain and suffering consequences are “serious”.
5 The defendant also submitted that the plaintiff’s pain and suffering consequences are contributed to by both impairment of the function of her lower back and also by the impairment of her mental state, casting the onus on the plaintiff to disentangle one from the other.
6 I have summarised the evidence below which is relevant to the issues raised by the parties. After analysing all of the evidence, the conclusion I have reached is that the pain and suffering consequences of the impairment of function to her lower back are “serious”.
7 Furthermore, I do not consider there is sufficient merit in the attack on the plaintiff’s creditworthiness and reliability to overwhelm the evidence which I prefer. Lastly, I do not consider there is any merit in the contention that what is contributing to the impairment of function of the plaintiff’s lower back requires disentangling.
The Plaintiff’s background
8 The plaintiff is thirty-nine years of age. She is married, but separated from her husband. She is the mother of six children. At present, she lives in Clifton Springs, which is outside Geelong, with her estranged husband and three of her children. Two of those children have been diagnosed with Autism Spectrum Disorder.
9 The plaintiff last attended a school in New South Wales to Year 9. She gave birth to her first child in 1996 when she was in her mid-teens. She entered the workforce not long after the birth of her first child. She has spent most of her working life in the hospitality industry.
The compensable injury
10 The plaintiff commenced work with the defendant in June 2011. She alleges that the work she performed was arduous physical work.
11 On 11 July 2011, she was performing work which required her to continuously bend in confined spaces and to bend and twist her lower back. It was while performing that work that she experienced strong pain in her lower back.
The Plaintiff’s medical treatment
12 The plaintiff first saw Dr Manuel, general practitioner, on 12 July 2011.[1] The plaintiff told Dr Manuel that she had suffered a lower back injury at work. His clinical note discloses that he did not complete a neurological examination because of the amount of pain the plaintiff was suffering. He saw the plaintiff on two further occasions before referring her to have an MRI scan.
[1]Plaintiff’s Court Book (“PCB”) 24
13 The plaintiff had the first of four MRI scans on 22 July 2011.[2] She subsequently underwent MRI scanning on 2 February 2012,[3] 4 February 2013[4] and 10 December 2014.[5]
[2]PCB 38
[3]PCB 39
[4]PCB 40
[5]PCB 42
14 Dr Manuel was concerned about the appearances on the first MRI scan. The radiologist described the appearances on it as a shallow right paracentral protrusion at L4-5 contacting the right L5 nerve root, and a central protrusion and annular disruption at L5-S1 lying between the S1 nerve roots.
15 It was as a result of that concern that Dr Manuel referred the plaintiff to Ms Tan, neurosurgeon, who first saw the plaintiff on 5 August 2011.[6]
[6]PCB 65-67. She saw the plaintiff twice in 2011
16 The plaintiff was then referred to Mr Han, neurosurgeon, who first saw the plaintiff on 14 December 2011,[7] and then to Professor Teddy, neurosurgeon, who first saw the plaintiff on 7 January 2013.[8]
[7]PCB 70-77. He saw the plaintiff once in 2011 and once in 2012
[8]PCB 78-80. He saw the plaintiff twice in 2013
17 On each occasion that the plaintiff was examined by the neurosurgeons, the plaintiff complained of lower back pain and, principally, left leg pain, and right leg pain. Ms Tan and Mr Han considered that the plaintiff had suffered disc degeneration at L4-5 and L5-S1 without any neural involvement. Mr Han advised the plaintiff to undergo a CT-guided lumbar epidural injection which she did not have until 2 June 2015. Professor Teddy was aware that the plaintiff had been examined by Ms Tan and Mr Han. He agreed with their opinions relevant to a diagnosis of the plaintiff’s injury, and that there was no clear indication in her presentation for any neurosurgical intervention.
18 Professor Teddy advised the plaintiff to see Dr Vagg, consultant physician in rehabilitation and pain medicine. Dr McGill wrote a letter of referral for the plaintiff to Dr Vagg. Dr Vagg did not see the plaintiff until February 2015. His diagnosis differs from the neurosurgeons, only to the extent that he also considered that the plaintiff was suffering from centrally sensitised disc pain arising from L4-L5.[9]
[9]PCB 68-69. He saw her on seven occasions in 2015 and on two occasions in 2016
19 The plaintiff was treated by Dr Manuel at the Point Cook Super Clinic from 12 July 2011. He left that clinic and commenced practising at the Watervale Medical Centre. After she left the Point Cook Super Clinic, the plaintiff was treated by Dr Carswell, general practitioner, from 16 February 2012 to 22 February 2012 for her lower back injury. She was treated by medical practitioners of the Point Cook Super Clinic on thirty occasions for her lower back injury.[10]
[10]Exhibit A, 1-44
20 The plaintiff lost contact with Dr Manuel after he left the Point Cook Super Clinic, but resumed being treated by him from 12 September 2012 until 21 October 2013 at the Watervale Medical Centre for her lower back injury on sixteen occasions.
21 The plaintiff was treated by Dr McGill, general practitioner at the Park St General Practice, on 5 September 2012, and from 21 August 2014 to 11 November 2015 for her lower back injury on eighteen occasions.[11]
[11]Exhibit A, 45-50b
22 The plaintiff was then treated by Dr Campbell, general practitioner at the Drysdale Village Medical Centre, from 25 November 2015 to 11 January 2016 for her lower back injury on four occasions.[12]
[12]Exhibit A, 88-92
23 The plaintiff moved to Bowral in New South Wales, where she was principally treated by Dr Jamani, general practitioner at the Bowral Street Medical Practice, from 22 April 2016 and 6 May 2016 for her lower back injury on two occasions.[13]
[13]Exhibit A, 93-98
24 After the plaintiff returned from Bowral to Geelong, she was then treated principally by Dr Cherian, general practitioner at the Drysdale Bulk Billing Medical Centre, from 6 June 2014 for her lower back injury. The last entry in his medical records which were subpoenaed to the Court is 23 October 2017.[14] Those records disclose that he has treated the plaintiff on seven, and perhaps eight, occasions. He continues to treat the plaintiff.
[14]Exhibit A, 67-87
25 In addition to this treatment, the plaintiff has also had physiotherapy and the prescription of painkilling medication.
The Plaintiff’s return to work
26 The plaintiff was incapacitated for work until September 2011. She returned to work with the defendant working in its store on light part-time duties for four hours per day. The plaintiff was incapacitated by her lower back injury to such an extent that she stopped working altogether in October 2011.
27 The plaintiff moved to Bowral in New South Wales with one of her children and stayed with a friend. Her friend was employed with the Centennial Vineyards Restaurant. She assisted the plaintiff to obtain employment there as a restaurant supervisor.
28 The plaintiff saw Dr Jamani, general practitioner at the Bowral Street Medical Practice. The purpose was to obtain a certificate of capacity for work. Dr Jamani examined the plaintiff, finding that the plaintiff was capable of a full range of movement of her lower back without limitation by pain. She found tenderness over L4-L5; straight leg raising was better on the right side than the left side; there was mild pain, and evidence of a shooting pain down the left leg.[15] Dr Jamani provided the plaintiff with a Certificate of Capacity dated 6 May 2016. She certified the plaintiff as fit to return to employment. The only restrictions which she placed upon the plaintiff’s capacity for work was no lifting greater than 10 to 15 kilograms and pushing, pulling, bending, twisting and squatting as tolerated by the plaintiff.[16]
[15]Exhibit B, 94-96
[16]Exhibit C
29 It is not clear whether the plaintiff provided the Certificate of Capacity to the restaurant or not, but it is probable that she did, because her purpose in obtaining it was to obtain a clearance to return to work. The plaintiff began working on a trial basis at first, and then full time as a supervisor from 9 May 2016 until 10 June 2016.
30 Under cross-examination, it was put to the plaintiff that while she was employed at the restaurant, she had a tongue stud inserted. The presence of the tongue stud came to the attention of the restaurant manager. After a conversation with the restaurant manager, it is alleged that the plaintiff walked out of her employment, and the following day, handed in her apron and key and did not return. The plaintiff denied that the presence of the tongue stud was the only issue between herself and the restaurant which led to her cessation of employment. She said that things had been building up, and the issue with the tongue stud was “the straw that broke the camel’s back”.[17]
[17]Transcript (“T”) 67-68 and 69-71
31 There was an email exchange between Ms Brazenor, who is the wedding and events director of the restaurant, and the plaintiff relevant to the reasons why the plaintiff ceased working for the restaurant.
32 Ms Brazenor sent the plaintiff an email on 16 June 2016 informing the plaintiff that her employment had not been terminated, and alleging that the plaintiff walked out of the restaurant on 10 June 2016 after having a conversation with the restaurant manager about the tongue stud.[18] The plaintiff responded by email dated 28 June 2016 in which she said “I have tried on numerous occasions to resolve my dispute with your business regarding my termination for my tongue piercing without notice and payment entitlement”.[19]
[18]DCB 160
[19]DCB 161
33 The plaintiff said that what she put in the email was merely a repetition of what the restaurant had said to her and not an acceptance by her that the presence of the tongue stud was the real reason why she ceased working with the restaurant. She added that the things which had been building up which she referred to earlier were her increasing difficulty in engaging in the more arduous tasks associated with her work which were aggravating her lower back.[20]
[20]T71-72
34 Despite the plaintiff’s evidence that the issue with the tongue stud was contrived by the restaurant to terminate her employment, she did not seek any treatment from Dr Jamani nor report that she was having any difficulties with that employment even though she saw Dr Jamani on 12 and 19 May and 9 June 2016 for other medical issues. The plaintiff said that she did inform Dr Jamani that she was having difficulties with her lower back.
35 The plaintiff was referred to a report of Dr Richard Prytula, psychiatrist, who examined the plaintiff on 31 May 2016 and provided a report bearing the same date. The plaintiff was flown from Bowral to Melbourne for that appointment. By the time she was examined by Dr Prytula, the plaintiff had been provided with the medical certificate. It was put to her that she told Dr Prytula that after being prescribed anti-anxiety medication, that she felt “fantastic since they let me go back to work”. She told Dr Prytula that she had been working for two weeks and believed that she could perform that work full time.[21] It was also put to her that she told Dr Prytula that she could carry out her normal housework, shopping and cooking, and was able to drive a car.[22] The effect of the plaintiff’s answers were a denial that she was coping with the work she was performing and could undertake the domestic activities and driving.[23]
[21]DCB 73
[22]DCB 73
[23]T75-76
36 The defendant submitted that I should conclude that the plaintiff was coping well with her work with the restaurant; that I should accept that the history recorded by Dr Prytula was an accurate account that she was both able to perform the work at the restaurant without difficulty, and that she was able to carry out her domestic activities and drive also without difficulty. Furthermore, if it had not been for the issue with the tongue stud, that she would still be working for the restaurant, and the only restriction that she would be working under would be consistent with the medical certificate provided by Dr Jamani.
37 The email exchange between Ms Brazenor and the plaintiff demonstrates that there was an issue as between the restaurant manager and the plaintiff regarding the presence of the tongue stud. All I can conclude from the email exchange and the cross-examination of the plaintiff is that there was a confrontation between the restaurant manager and the plaintiff about the tongue stud which resulted in the plaintiff walking out of the restaurant. Whether she was summarily terminated or simply walked out is unclear, and in any event, it is not necessary for me to determine which of the two is the case.
38 I think it is probable that the plaintiff continued to suffer from an actively symptomatic lower back at the time when she arrived in Bowral and while she was working for the restaurant. I am fortified in reaching that conclusion, because the plaintiff saw Dr Jamani for the specific purpose of obtaining a certificate of capacity for work. The examination demonstrated the presence of pain in her lower back and left leg.
39 The plaintiff described aspects of the work she performed at the restaurant which were arduous. She said that she was having difficulty with a number of work tasks, for example, lifting boxes of wine, and carrying heavy linen upstairs.[24] These are the type of physical tasks which would place stress and strain on an already injured lower back likely to render the lower backs more symptomatic.
[24]T74
40 The plaintiff left Bowral and returned to Geelong. She obtained employment at the Wool Exchange Entertainment Complex in Geelong on 19 July 2016. She worked five shifts per week of 3.5 hours per shift. She said she ceased performing that work because of increasing of pain in her lower back.
41 The plaintiff did not obtain any medical treatment for her lower back injury until she saw Dr Cherian on 7 March 2017. She saw Dr Odeleye, general practitioner at the same medical centre, on 27 June 2016 for an unrelated medical condition. However, when she did see Dr Cherian, he had access to the MRI scan undertaken on 10 December 2014. She told him that she had attended a medical examination organised by the defendant on the previous day. It must have been with Mr Carey, who examined her on 6 March 2017. She said that it was the drive back from Melbourne to Geelong which provoked pain and numbness in her left leg and otherwise aggravated the pain she was experiencing.[25]
[25]Exhibit B, 72-73
42 It was as a result of the plaintiff seeing Dr Cherian on 7 March 2017 with her complaints of lower back pain that he prescribed her Palexia, oxycodone and Lyrica. She saw Dr Cherian subsequently between 13 April 2017 and 16 June 2017 for a gynaecological problem which appears to have been of some seriousness. The next entry relevant to treatment for lower back pain is 31 July 2017. It is also apparent that the gynaecological problem continued to trouble the plaintiff and was the reason for a number of attendances on Dr Cherian throughout 2017. What Dr Cherian’s clinical notes do disclose is that she had an actively symptomatic lower back which Dr Cherian considered required treatment. He continued to prescribe her the same painkilling medication.
The recent medico-legal examinations
43 The plaintiff underwent a number of medico-legal examinations, all of which have produced similar opinions regarding the identification of the plaintiff’s injury and its consequences for her in terms of pain and suffering and capacity for work. They also bear a significant similarity to the opinions of the medical practitioners who treated the plaintiff prior to her going to Bowral.
44 I will start with the recent medico-legal examinations organised on the plaintiff’s side.
45 The plaintiff was examined by Mr Bittar, neurosurgeon, on 23 September 2017.[26] The history she gave him of lower back pain and left leg pain appears to be consistent with what she deposed to in her two affidavits and to the other medical practitioners who treated her. There are inevitably variations in the way her complaints of lower back pain were recorded by those medical practitioners, but those variations do not occur to me to be particularly material.
[26]PCB 84-90
46 By the time the plaintiff was examined by Mr Bittar, she had been prescribed the following medication: Palexia, oxycodone and Lyrica. Palexia and oxycodone are opioids used to treat pain, and Lyrica is used to treat neuropathic pain.[27]
[27]Exhibit A, 72-73
47 Mr Bittar had the first three MRI scans available for his inspection. After examining the plaintiff, and no doubt giving consideration to the appearances on the MRI scans, he considered that the plaintiff had suffered an aggravation of lumbar spondylosis, with the potential generators of her pain including the lumbar intervertebral discs and facet joints.
48 Mr Bittar suggested that the plaintiff should be reviewed by a pain specialist; undergo diagnostic blocks to determine which structures were generating her pain; participate in a multidisciplinary outpatient pain management program, and otherwise, he considered that she might be a candidate to have a spinal cord stimulator inserted.
49 Mr Bittar considered that the plaintiff would be likely to suffer significant pain and disability into the foreseeable future. He considered that she was incapacitated for her pre-injury work, and was otherwise fit to perform part-time work in the hospitality industry as a waitress for about 18 hours per week with limitations on standing and lifting.
50 Mr Bittar’s opinion is consistent with current medical opinions of a number of medical practitioners. Dr Cherian gave a similar opinion, but considered that if the plaintiff did not suffer any flare-ups of lower back pain, she could gradually increase her work hours to 30 hours per week.[28] Dr Slesenger gave a similar opinion, although, he discounted the alternative suitable employment proposed by the defendant, adding that he did not consider that she would be able to return to work consistently and reliably.[29]
[28]PCB 50.1
[29]PCB 91-108
51 The more recent medical examinations relied on by the defendant are of Mr Carey, orthopaedic surgeon, and Dr Baynes, rehabilitation consultant. Mr Carey examined the plaintiff on 6 March 2017[30] and 6 October 2017.[31] Dr Baynes examined the plaintiff on 14 March 2017[32] and 19 October 2017.[33]
[30]DCB 96-105
[31]DCB 106-113
[32]DCB 114-119
[33]DCB 120-124, and a supplementary report at DCB 124a-124b
52 Both Mr Carey and Dr Baynes considered that the plaintiff had suffered an injury consistent with the other medical practitioners whose opinions I have reviewed. Both considered the plaintiff was fit for suitable work, and in the case of Dr Baynes, he considered that the plaintiff could return to work for up to 25 hours per week with restrictions of a similar kind referred to by Dr Slesenger. Mr Carey did not offer an opinion regarding the plaintiff’s suitability to return to suitable employment.
The Plaintiff’s creditworthiness and reliability
53 There were three major foci of the defendant’s attack on the plaintiff’s creditworthiness and reliability. One of those was the reason why the plaintiff ceased working at the restaurant in Bowral. I have dealt with at adequately above.
54 The next attack on the plaintiff’s credit concerned her evidence that her no fault payments for OxyContin and other opiate medication were terminated by a determination of the insurance agent for WorkSafe. She was informed of that termination by a letter dated 20 August 2012 from the insurance agent. She said that as a result of that termination, she self medicated by using “ice”. The defendant submitted that the plaintiff’s evidence was untrue.
55 I do not accept the plaintiff’s evidence. For her to have begun using ice because of the termination of funding must mean that it was some time after August 2012. Her own evidence is entirely inconsistent with that proposition. The plaintiff said that she began using ice in June or July 2012 which is one to two months before she received the determination.[34] Furthermore, when she began using ice, she was unaware whether it was capable of acting as a painkiller.[35] It is noteworthy the plaintiff’s husband probably began using ice at around the time when the plaintiff began using it.
[34]T12
[35]T17
56 I think it is probable that the plaintiff’s use of ice had little to do with the determination. It is probable that she and her husband resorted to using ice for other reasons not associated with her lower back injury.
57 The plaintiff’s ice habit had a major impact on her from about mid-2012. For example she left her husband and took up residence in a caravan park in Portarlington for a couple of months around March 2014 in order to detoxify from the effects of ice.[36] It was during the time that she was addicted to ice that she began drinking as a substitute for ice and as a pain reliever.[37]
[36]T30
[37]T32
58 The plaintiff’s iced habit must have disrupted her marriage, her capacity to care for her children and her general domestic circumstances. Despite that, what is clear from my analysis of the clinical notes is that she continued to see a number of general practitioners for treatment of her lower back injury. If the defendant’s focus on the plaintiff’s ice addiction was to suggest that it in some way has obscured my capacity to determine whether the plaintiff had a persisting lower back injury or not, then that is not so. An analysis of the number of occasions the plaintiff saw general practitioners, and had treatment from Dr Vagg in 2015, points to the ice addiction resulting in identifiable adverse outcomes for the plaintiff, but not with respect to an identification of her lower back injury and the treatment she was having for it.
59 The next attack on the plaintiff’s credit related to her use of Lyrica. When the plaintiff was examined by Dr Jamani, she said nothing about taking any painkilling medication. She said that she was using Lyrica which had been prescribed for her by Dr Campbell.[38] When she was re-examined, she was taken to Dr Campbell’s clinical notes, and, in particular, to prescriptions for Lyrica which he provided her on 9 December 2015 and 11 January 2016. The first prescription was for a pack of 56 capsules of 75-milligrams with five repeats, and the second was for 56 capsules of 150-milligrams with five repeats. When she was in Bowral, she was taking one Lyrica each morning, sourced through the prescriptions provided by Dr Campbell.[39]
[38]T62
[39]T97
60 I have some doubts about whether the plaintiff was telling the truth that she filled the prescriptions and had Lyrica available for her to take one each morning; however, the evidence does point to the fact that she did have a large number of prescriptions which, if filled, would have provided her with sufficient Lyrica to last a significant period of time.
61 In addition to these specific attacks on the plaintiff’s creditworthiness, reliability was a general submission that the plaintiff’s manner of giving evidence was very unsatisfactory. I agree that it was. At times, the plaintiff was combative, often giving non-responsive answers during cross-examination, and at other times, she gave answers to try to explain what she perceived to be weaknesses in parts of her case. I think the best example of what I have just referred to is the way in which she tried to link the time when she began using ice to the determination.
62 Despite my misgivings about the manner in which the plaintiff gave her evidence, and her conduct when cross-examined, I do not accept that the attack has so undermined her creditworthiness and reliability that I should not accept that the consequences of the impairment of function of her lower back are “serious” for the reasons I have set out below.
Disentangling
63 The defendant submitted that there is a need for disentangling because of the evidence of Dr Strauss, psychiatrist. Dr Strauss examined the plaintiff on 6 December 2017.[40] Dr Strauss considered that the plaintiff was suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, partly as a consequence of her employment with the defendant. He added “she will never be able to get back to heavy work again partly because of psychiatric factors and partly because of physical factors”.[41]
[40]PCB 109-119
[41]PCB 118
64 The defendant submitted that this is clear evidence that both the impairment of the function of the plaintiff’s lower back and the impairment of her mental state are both contributing to the plaintiff’s pain and suffering consequences. Therefore, disentangling is called for.[42] I do not agree.
[42]Jayatilake v Toyota Motor Corp Australia Ltd [2008] VSCA 167
65 Both Mr Bittar, Dr Slesenger, and Mr Carey specifically turned their attention to whether their capacity to examine the plaintiff and to offer an opinion on the identity of the plaintiff’s lower back injury and its consequences were in any way obscured or made difficult by the presence of any impairment of her mental state.[43]
[43]Mr Bittar at PCB 89; Dr Slesenger at PCB 101; Mr Carey at DCB 105 and 112, and Dr Baynes at 117-118 and 123-124. Dr Baynes did not expressly address the issue of disentangling, but he made no reference to the plaintiff's incapacity for work been contributed to by any impairment of her mental state.
66 I prefer the evidence of Mr Bittar, Dr Slesenger and Mr Carey over the evidence of Dr Strauss.
Pain and suffering consequences
67 On the basis of the plaintiff’s evidence and the relevant medical evidence, I consider that the plaintiff has suffered a permanent serious impairment of the function of her lower back. I am satisfied that the plaintiff suffered the following consequences of the impairment of the function of her lower back:
· Constant pain in the lower back.
· Pain radiating from the lower back into her left leg, and to a lesser extent, her right leg.
· The need for strong painkilling medication.
· Restriction on her general movements, and, in particular, bending, lifting, twisting, stooping, sitting and standing.
· Interference with sleep.
· Difficulty performing household chores.
· Difficulty driving a car.
· Restriction on her ability to return to work, and, in particular, physical restrictions relevant to what she should avoid doing and a limitation on the hours that she should work.
68 I think it is probable that the impairment of the function of the plaintiff’s lower back has significantly intruded upon almost every aspect of her working and non-working life. I think the pain and suffering consequences contended for the by the plaintiff easily satisfy the statutory test of seriousness. I have reached this conclusion when judged by comparison with other cases in the range of possible impairments or losses of a body function.
69 The plaintiff is granted leave to bring a proceeding at common law for pain and suffering.
- - -
0
1
0