Walker v H W Greenham and Sons Pty Ltd; Walker v H J Heinz Co Australia Ltd
[2013] VCC 384
•15 April 2013
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-02774
| MATTHEW WALKER | Plaintiff |
| v | |
| H W GREENHAM & SONS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
-and-
Case No. CI-12-01056
| MATTHEW WALKER | Plaintiff |
| v | |
| H J HEINZ CO AUSTRALIA LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 8 and 9 April 2013 | |
DATE OF JUDGMENT: | 15 April 2013 | |
CASE MAY BE CITED AS: | Walker v H W Greenham & Sons Pty Ltd & Anor; Walker v H J Heinz Co Australia Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 384 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Two injuries to lower spine – pain and suffering only in respect of first incident – pain and suffering and economic loss in respect of second incident – concession in relation to the second incident – whether consequences of injury in the first incident meet the “very considerable” test.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
Judgment: Leave granted in respect of pain and suffering in the first incident. Leave granted in relation to pain and suffering and economic loss in respect of the second incident.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Arnold Dallas McPherson |
| For the Defendants | Mr A Moulds SC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
1 In the course of his employment with the first defendant in the first proceeding (“Greenham’s”), the plaintiff suffered injury to his lower back on 10 January 2000 while working on a line as a slaughterman (“the first incident”). After a short period away from work, he returned on similar duties for a period, and then, in 2005, he obtained work with the defendant in the second proceeding (“Heinz”), working on a production line, labelling cans and jars. In February 2010, he stepped on a can lying on the floor, and suffered a heavy fall, aggravating his lower back pain (“the second incident”). Aside from one attempted return to work, he has not worked since the second incident.
2 The plaintiff claims the injury to his lower back has required a considerable amount of conservative treatment, in particular the prescription of medication, and that a range of social, recreational, domestic and work activities have been lost or curtailed.
3 At the outset, this matter involved two applications for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered in the course of the plaintiff’s employment with Greenham’s in January 2000, and with Heinz in February 2010. The body function said to be lost or impaired is the lumbar spine. On the second day of the hearing, Mr Moulds, for the defendants, sensibly in my view, conceded the plaintiff’s application in relation to the second incident ought succeed, both in relation to pain and suffering and economic loss.
4 The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act. Leave is sought in respect of pain and suffering only in relation to the first incident.
5 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, medical, radiological and rehabilitation reports, together with three affidavits of the plaintiff, and an affidavit of the plaintiff’s wife, were tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather to those parts of his evidence which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known, and it is unnecessary for me to revisit the various relevant sections.
Relevant background
6 The plaintiff was born in 1975, is married and has two children. He attended school to Year 10 and then took up a dairy farm apprenticeship, which he completed over four years. He worked on a dairy farm for a period, and in 1998, went with his wife to Benalla to live while his wife completed a Masters in Nursing. In January 1999, he commenced work with Greenham’s at an abattoir in Tongala. He worked as a slaughterman.
7 According to his affidavit, he had occasional low-back pain, not uncommon in the dairy industry. He played football until 1999 and developed some back pain in that year, and sought medical attention. He was sent for an x-ray and had a short period of time off work. He suffered a significant laceration to his right forearm in the course of his employment with Greenham’s and had about a month off work.
8 He described the work that he was undertaking at the time the first incident occurred as heavy. He was otherwise fit and in good health.
9 Aside from the usual range of domestic and family activities, the plaintiff had two passions: the first was speedway car racing, which he enjoyed with his brother and father over a considerable period, including after the first incident; and the second, dairy farming. He described in evidence that he has always wanted to work as a dairy farmer.
The first incident and its consequences
10 On 10 January 2000, the plaintiff was working on the slaughter line and his job involved cutting and pulling the spleen from an animal. In the course of reaching forward to remove the spleen, he said he felt severe pain in his back and into his right leg. Although it is not clear from his treating general practitioner, Dr Tisdall’s clinical notes,[1] it would appear that within a relatively short time, the plaintiff went to see that doctor complaining of lower back pain, with pain radiating into his buttocks and right leg. He was issued a certificate for one week off work. X-rays taken at the time showed generalised disc narrowing throughout the lumbar spine, in particular at the L3-4 level.
[1]Defendants’ Court Book (“DCB”) 147D
11 Dr Tisdall referred the plaintiff to Mr Brian Barrett, orthopaedic surgeon, whom he saw on 16 February 2000. Mr Barrett arranged a CT scan of the lower spine[2] which showed mild disc bulges at L1-2 and L3-4 with a small left paracentral disc protrusion at L2-3. At L4-5, there was a mild posterior broad-based disc bulge. To Mr Barrett, the plaintiff said that he had suffered low-back pain some years before while working as a dairy farmer. He told Mr Barrett that he had stopped playing football in 1999 because of low-back symptoms. Mr Barrett noted that the CT scan showed widespread disc degenerative changes at a number of levels, most particularly at L3-4, where he said the disc was “very disrupted”.[3] He suggested that the plaintiff choose some employment that was less physically demanding. Mr Barrett commented that it was most unusual for someone of the plaintiff’s then age (twenty-four years and nine months) to have developed such widespread and advanced degenerative changes at all levels of his lumbar spine, which he said were related to his heavy physical work.
[2]Plaintiff’s Court Book (“PCB”) 115
[3]PCB 58
12 The plaintiff continued to see Dr Tisdall, who provided conservative treatment, in particular the prescription of pain-relieving medication, including Panadeine Forte. It is difficult to say with precision how regularly the plaintiff saw Dr Tisdall over the years from 2000 to 2005, because Dr Tisdall’s clinical notes, both in handwritten and printed format, are somewhat sketchy. In evidence, the plaintiff said he saw Dr Tisdall regularly after the first incident. I accept, however, in accordance with the handwritten notes,[4] that he saw Dr Tisdall only irregularly over the period from 2001 until 2005. It would appear he saw Dr Tisdall on three occasions in 2006.
[4]DCB 147A
13 According to the report of Dr Tisdall of 29 May 2002,[5] the plaintiff continued to suffer intermittent lower back pain several times per week, with pain radiating into his buttocks. In his affidavit, he said that, in February 2002, he ceased work with Greenham’s because of his back injury;[6] however, in evidence, it became clear that the plaintiff resigned his employment with Greenham’s not only because of his back injury, but also as a result of the significant laceration to his right forearm. Further, according to his affidavit,[7] the plaintiff said that he stopped playing football because of his back injury and had to wear a back brace. However, he accepted in cross-examination he had ceased playing football before the injury and the back brace had nothing to do with any lumbar pain.
[5]PCB 65
[6]PCB 40
[7]PCB 41
14 The plaintiff remained working for Greenham’s, after the initial period of a week or so away from work, on full-time duties very similar to those that he undertook before injury, although the task of removing the spleen was moved to another section of the line. After leaving Greenham’s in 2002, he went to work again milking dairy cows and as a general farm labourer, although he said the work was not particularly heavy, and with the assistance of his employer, was able to protect his back and avoided heavy lifting. In 2002, Dr Tisdall described the plaintiff as suffering a “serious back injury”.[8] He subsequently left that employment, although unrelated to his back injury, and commenced work in general cleaning at a factory in Echuca. The cleaning was seasonal from January to March. Again he left that employment for reasons unrelated to his back problem.
[8]PCB 65
15 He commenced work with Heinz in 2005 in Echuca. His work involved labelling and packaging cans and jars at that factory. He said that job was much lighter than his previous heavier duties, and he was able to maintain that employment, working three 12-hour nightshifts per week, with the aid of medication including Panadeine Forte, Voltaren, Naprosyn and occasionally MS Contin, all prescribed by Dr Tisdall. His wife provided regular massages at home. He had physiotherapy over this period as well.
16 Dr Tisdall then referred the plaintiff to Mr Roy Carey, whom he saw on one occasion in June 2007. Mr Carey received a history that after the initial incident, the plaintiff suffered “tolerable” low-back discomfort which slowly became worse.[9] When he examined the plaintiff, he received a complaint of chronic low-back pain with some radiation into the groins. Mr Carey noted his lumbar spinal movements were very restricted and referred him for an MRI scan of the lumbar spine[10] which confirmed extensive multi-level disc degeneration at most lumbar levels. Mr Carey concluded the plaintiff had suffered chronic, non-specific low-back pain arising out of his heavy work duties. He suggested physiotherapy, and referred the plaintiff to Dr David Murphy, a pain management specialist in Bendigo. The plaintiff said he did not attend Dr Murphy at that time as both he and his wife were working and it was difficult for him to find the time to attend a pain management program because he helped look after his two young children. Mr Carey said that the injury had impacted upon the plaintiff’s work capacity and restricted his ability to do heavier home duties.
[9]PCB 75
[10]PCB 116
17 After 2007, the plaintiff continued to see Dr Tisdall, whom it would appear he saw regularly in that year,[11] and was prescribed medication. According to the report of Dr Tisdall of 2008,[12] he said that he was prescribing the plaintiff with Naproxen, Voltaren and Panadeine Forte medication. He said the plaintiff continued to have low-back pain, quite severe at times and on occasions radiating into his right leg. He described the injury as “profound multi-level degenerative changes of his lumbar spine from L5-S1 to L1-2”. Dr Tisdall said the plaintiff would be unable to tolerate an office job; he could not cope with the working environment. He thought the injury would continue to deteriorate over time.
[11]DCB 147A
[12]PCB 68
18 According to the affidavit of the plaintiff, sworn 9 December 2008,[13] he said that he found most physical activities difficult because of back pain. He received assistance in mowing the lawn and doing the garden, and otherwise did a bare minimum of maintenance around the house. He did some work building a pergola but this increased his back pain. He said he could not play with his children in the manner he would wish and he found difficulty in sitting or standing for longer periods. He said his personal relationship with his wife had been affected. He said that he was concerned about his long-term future as he had not told his employer at Heinz about his back condition. He said he was concerned that he might lose his job if his employer found out.
[13]PCB 41
19 In his affidavit, the plaintiff said that he had a passion for speedway car racing which he was forced to give up in about 2007 because of the pain that he suffered in his back. In cross-examination, he said that up until that point, he regularly drove a speedway car on dirt tracks on a number of occasions each year in the racing season. The vehicles are modified saloon cars and achieve speeds of up to 80 kilometres per hour. After he gave up the driving, he has maintained an interest in the sport and his brother now drives the car.
20 According to the affidavit of his wife,[14] before the second incident, the plaintiff had ongoing back pain but not as bad as it was after the second incident. She said her husband was able to cope with the work at Heinz “without too much difficulty”.
[14]PCB 57B
21 Given the concession by the defendants, not a great deal more needs to be said about the aggravation of the lower back condition which occurred in the course of the plaintiff’s employment with Heinz in February 2010. On that occasion, he slipped on a can which was lying on the factory floor and fell heavily. He suffered an immediate increase of pain in his lower spine and saw Dr Tisdall, who arranged for him to see a neurosurgeon, Dr Maartens.[15] Such was the extent of the aggravation of the pain in the lumbar spine, he was forced to leave work with Heinz, and apart from a short attempt to return on lighter duties, has not worked since. His level of medication has increased, in particular his use of MS Contin.
[15]PCB 100
Medical Opinions
22 Given the acceptance by the defendants that the second incident in itself gave rise to consequences both in respect of pain and suffering and economic loss sufficient to satisfy the statutory test, it is unnecessary to review all of the medical opinions, in particular those of more recent times. For reasons I shall subsequently set out, the focus in respect of the second incident, is that period leading up to February 2010. The medical opinions of most relevance are in the period before that date.
23 I have already referred to the assessments and opinions of the treating practitioners, Dr Tisdall and Messrs Barrett and Carey. The plaintiff was examined on behalf of his solicitors by Mr John O’Brien, orthopaedic surgeon, in November 2009.[16] He obtained a history that since 2000, the plaintiff had continued to experience constant low-back pain radiating into the buttocks and left thigh. The pain had increased over the last several years, as a result of which he was referred to Mr Carey. At the time of examination, the plaintiff complained of constant low-back pain radiating into both buttocks, the severity of which fluctuated between 8 out of 10 to 10 out of 10. The pain was aggravated by prolonged sitting or standing, bending and leaning forward. The plaintiff said that he was consuming six Panadeine Forte per day, plus Voltaren, and having physiotherapy once a month. At the time, he was working for Heinz on a full-time basis. Mr O’Brien noted the radiology, in particular the MRI of October 2007, which he said reported disc degeneration at all lumbar levels. Upon examination, he said there was no nerve root compromise nor radiculopathy. He said the degeneration was most prominent at L4-5. He said:
“Mr Walker now presents with non-specific back pain. I have no doubt the underlying pathology is one of aggravation of pre-existing lumbar spondylosis, however the clinical findings does [skil do] not allow a precise diagnosis of the exact site of symptomatic pathology. Certainly in relationship to the most recent MRI findings the most substantial pathology would be at L4/5 level; most likely the source of the underlying symptomatic pathology. However, accompanying this chronic non-specific back pain there is no evidence of nerve root irritation or compression. … The history certainly would indicate that employment is a significant contributing factor to what now is described as chronic back pain.”[17]
[16]PCB 80
[17]PCB 82-83
24 Mr O’Brien regarded the plaintiff’s condition as stable, although said that the prognosis was poor, and he said he was confident the plaintiff would continue to experience constant pain. He said further:
“This patient now describes definite disability secondary to his chronic back pain. From a physical perspective I would suggest Mr Walker is now incapable of undertaking unrestricted heavy physical employment. Indeed the patient has changed employment on several occasions since the onset of his pain in an attempt to modify the physical nature of his employment which has resulted in him pursuing duties that do not involve heavy physical tasks. Indeed I would suggest this patient will permanently require some modification of his ongoing employment, as in my opinion he is permanently incapable of undertaking unrestricted duties involving heavy tasks. In addition, the patient remains restricted in relationship to his general, domestic, social and recreational activities and this is certainly a permanent situation.”[18]
[18]PCB 83
25 On behalf of the defendants, the plaintiff was examined by Mr Clive Jones, orthopaedic surgeon, in October 2008. He received a similar history to Mr O’Brien, with ongoing pain from 2000, an MRI scan revealing marked degenerative changes in the lumbar spine and the prescription of Panadeine Forte and anti-inflammatory medication. At the time of examination, the plaintiff complained of low backache over the lumbar spine, varying in intensity and aggravated by strains and lifting. Mr Jones considered the plaintiff had multi-level disc degeneration, unusual in a person then thirty-three years of age which he thought was, in part, constitutional. The report of Mr Jones is not of great assistance as it appears to have been obtained for the purpose of an AMA impairment assessment.
26 The plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, in May 2009.[19] He noted ongoing lower back pain extending to the thighs and hamstrings. He noted physiotherapy on an intermittent basis and the provision of Panadeine Forte and anti-inflammatory tablets. He noted the MRI of October 2007 reported multi-level disc degeneration and said all the lumbar discs were degenerate. Mr Dooley considered that in the course of his employment, the plaintiff had aggravated underlying disc disease at multiple levels. He said discogenic-type back pain typically is referred to buttocks and thighs and aggravated by prolonged sitting or standing. He suggested the plaintiff undertake a general exercise and fitness program and maintain a level of activity. He said there was no place for surgical intervention. He noted the plaintiff was coping with his work. He said:
“I believe that Mr Walker will continue to note some low-back pain and intermittent lower limb pain. I believe that if he can continue a regular exercise and fitness program and appropriately modify his activity, then his symptoms will remain under control.”[20]
[19]DCB 41
[20]DCB 43
27 According to a pre-employment health assessment undertaken by Heinz at the commencement of the plaintiff’s employment there, he denied that he had any lower back pain or restriction.[21] I am satisfied, however, that the plaintiff had not told Heinz about his lower back problem because he felt he might lose his job if he did so.
[21]DCB 87
28 The defendants arranged for the plaintiff to be examined by Dr Roy Karna, rheumatologist, in June 2011. According to the history obtained, the plaintiff said:
“It was in the year 2000 whilst working in the abattoir whilst cutting a bull that he injured his lower back. He denied any antecedent back problems. He saw Mr Brian Barrett, surgeon, but not [skil no] interventional treatment was deemed necessary and he proceeded to having x-rays. He said the pain was tolerable and it gradually improved with physiotherapy to the point where he was able to function and partake in speedway driving et cetera, taking only occasional Naprosyn tablets.”[22]’
[22]DCB 81B
29 The plaintiff was examined by Dr David Murphy, rehabilitation physician, in February 2010 and November 2012. In his second report, he said:
“As I have stated above, I believe that there has been a significant aggravation via the injury that occurred on 19th February 2010. It is fairly clear that there has been significant aggravation because Mr Walker has not been able to return to work following that incident. I believe that there is a fifty per cent contribution by that injury to Mr Walker’s overall incapacity.”[23]
[23]PCB 97-98
30 Finally, in an occupational therapy assessment report undertaken by Work Options in July 2011, under the heading “Brief History of Injury”, the following is said:
“Mr Walker originally injured his low back in 2000 when he was employed as a slaughterman. He was ‘gutting a bullock’ when he felt his ‘back go’. Mr Walker was referred to an orthopaedic surgeon, prescribed Naprosyn and had three days off work before returning to pre-injury duties and hours. Over the past ten years, Mr Walker was effectively managing ‘intermittent’ back pain with occasional physiotherapy until re-injuring his lower back on 19 February 2010. … .”[24]
[24]DCB 124
Conclusions
31 The first matter to determine is the nature of the injury suffered by the plaintiff in the course of his employment with Greenham’s in 2000. All of the medical opinion is to the effect that the plaintiff had an underlying significant and widespread degenerative condition in his lower spine. It was largely asymptomatic before 2000, although he had some occasional short periods of pain and restriction. I am satisfied that the first incident resulted in a significant aggravation of that underlying degenerative disease at multiple levels, causing it to become symptomatic. I am satisfied that the pain in his lower spine continued from 2000 until the second incident in 2010.
32 There was no significant attack upon the credit of the plaintiff by Mr Moulds, save that he said the plaintiff had reconstructed certain aspects of the course of his injury. In particular, Mr Moulds said the reference in the plaintiff’s affidavits and histories to doctors that he had given up football because of his low-back injury was not correct. Further, it was clear from the evidence that he left Greenham’s in part because of his lower back problem, but also because of an injury to his right arm. In the course of cross-examination, surveillance film, taken in January 2010, a short time before the second incident, was shown. The plaintiff was seen tying steel pipes to a large tandem trailer, driving the trailer to a factory, unloading the pipes and then replacing them on the trailer. In the course of that exercise, he bent forward from his hips at an angle of approximately 90 degrees and remained in that position for a number of minutes while tying the items down. As was pointed out by Mr Moulds, that movement was inconsistent with what the plaintiff displayed on physical examination to a number of doctors around that time.
33 I had the opportunity to assess the plaintiff in the course of cross-examination. I considered him to be a truthful witness giving a fair account of his circumstances. There were some inconsistencies in his evidence but that is not unnatural given the period of time which has elapsed since the first incident. I assessed him as a relatively stoic person, used to hard work in heavy employment. In part that explains the reason that he did not attend Dr Tisdall regularly, particularly up until 2006. There was no clear explanation why his affidavit contained reference to leaving football, and his employment with Greenham’s, because of his lower back injury. However, I do not consider either matter to be significant in assessing the plaintiff’s credit. While the surveillance film did show the plaintiff in a more extended bent position than he had on other occasions displayed to doctors, I accept his explanation that there were some days when, with the assistance of medication, he was able to move more freely than others. The surveillance shown was on one occasion only in a period of about ten years.
34 In the years from approximately 2000 to 2005, in my view, the plaintiff was relatively active. He was mostly holding down full-time employment, was not seeking medical assistance on a regular basis, and was able to maintain his interest in speedway racing. If the nature and extent of his injury, and the consequences which followed, was to be assessed in 2005, then I would have considerable reservations as to whether the plaintiff met the statutory test for serious injury. However, I am satisfied that his lower back pain slowly increased over the years, and that was the reason he was referred to Mr Carey in 2007. Indeed, he told Mr Carey that in the earlier years, the low-back pain was “tolerable”.[25] Mr Carey accepted the plaintiff suffered significant lumbar back pain, and that he was “very restricted”.[26] That lower back pain persisted, even increased, and an assessment by Mr O’Brien in 2009 indicated that the plaintiff was experiencing constant low-back pain, was incapacitated for heavier employment, and had a poor prognosis. Mr Dooley’s assessment was less gloomy, but he said the plaintiff would continue to note some low-back pain. Of significance is the assessment by the plaintiff’s treating general practitioner, Dr Tisdall, in 2008, which described the onset of the plaintiff’s low-back pain, the prescription of a range of medication, and which assessed the plaintiff’s back injury as:
“Mr Walker has a serious back injury. An MRI of his lumbar spine carried out on 29 October 2007 has confirmed the profound multi-level degenerative changes of his lumbar spine at L5-S1 to L1-2. … .”[27]
[25]PCB 75
[26]PCB 77
[27]PCB 69
35 He thought the injury would continue to deteriorate over time.
36 The circumstances of this application are somewhat unusual, given the concession in respect of the second incident. It is clear it is difficult to assess the consequences to the plaintiff at the present time, of the first incident, given the intervention of the second. I have had regard to the directions given by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[28] In my view, the proper course in an application of this nature is as follows:
[28][2012] VSCA 60 at paragraph 30
· The first matter is to determine the nature of the injury sustained in the first incident;
· The consequences of that injury, as to pain and suffering, should be identified up to the time of the second incident;
· Regard should be had to the medical opinion available shortly prior to the second incident, in particular as to the stability of the plaintiff’s injury and the prognosis as to its future course;
· An assessment of the consequences of the injury should be made as at the date of hearing, making an assessment or projection of the course of the injury, leaving aside the intervention of the second incident and the aggravation that caused.
37 I am satisfied that prior to the second incident, the plaintiff had been suffering significant chronic low-back pain for approximately ten years. Although in the early years it did not require significant medical treatment, the pain did increase to the point that in 2007, the plaintiff sought a further orthopaedic opinion from Mr Carey. I am satisfied from the evidence of the plaintiff that prior to the second incident, the consequences he suffered, in addition to the chronic pain and the prescription of medication, included the loss of his ability to undertake the heavier work he had previously been able to do, and that he was restricted in the heavier domestic and outdoor activities he previously enjoyed, in particular he had a reduced capacity to work in the garden, play with his children and drive his car for longer distances. By 2007, he was unable to participate to the same extent in his speedway racing.
38 All of the medical opinion up to 2000 was to the effect that the plaintiff was likely to suffer continuing chronic low-back pain, including referred pain into his buttocks, which, if anything, would increase. It is reasonable to infer, thus, that the pain and disability from which the plaintiff was suffering would have continued, absent the second incident, through to the present time. Accepting the opinions, in particular of Dr Tisdall and Messrs Carey and O’Brien, were I to assess the consequences to the plaintiff of the first incident immediately before the second incident, those consequences would reach the “very considerable” level in respect of pain and suffering. I am satisfied, on balance, that those consequences would have persisted absent the second incident and thus determine that, assessing the consequences from the first incident at the present time, they do meet the statutory test as to pain and suffering. The plaintiff’s application in respect of the first incident thus succeeds.
39 Given the concession by the defendants, the plaintiff’s application in relation to pain and suffering and economic loss in respect of the second incident also succeeds.
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