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(Monday, I1

JUDGMENT

( Revi sed)

(Judge.Tordan)

November 20L4)

Hrs HoNouR: This application for pain and suffering damages

only rer-ies on an injury and impairment of the spine,in particurar the r-ow back. rt is an admittedcompensable injury. The discrete issue is whether theconsequences, when judged by comparison with othercases in the range of possibJ-e impairments, can be

f airly descri-bed as being at r-east very considerabre.

Essentially, the defendant sensibly argued thatthe consequences may well be considerable but arenot very considerabÌe (transcript 13) .

The plaintiff is a well_ motivated employee who

has worked in a forklift driver/storeman capaclty as a

direct employee of Schweppes since July 2003.

schweppes put him on their staff after having theopportunity to appraise his attitude and perfoïmance

over a number of years since about 1995, when he

worked for them but as a fabour hire employee or forLinfox Australia, out on placement on Schweppes,

premises.

He is obviously still regarded highJ_y as he has

been working ful1-time for Schweppes sj-nce October

2012, after being put off by them in May 2012. He was

reinstated effective I October 20L2. He has been

working ful-l--time since then, with permanent

restrictions of not lifting over 5 kilograms and doing

no repetitive bending.

Vühil-e it remains that he was taken back by

.MCA:MD 7l /LL/74Maghamez

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Schweppes, the fact is he works on "thin ice,,r âs itwere' when the terms of his l-etter of reinstatement areread carefulry (plaintiff's court book lr, defendant'scourt book 10-l.I) .

His injury occurred at work on Li November 2oog

when lifting. He saw his Gp, Dr S prakash, the nextday with severe pain in the r-umbar area. conservativetreatment r^/as tried (plaintiff ,s court book 3o) . He

was referred to Mr T Han, specialist neurosurgeon, inJanuary 2010 within about two months of the injuryoccurring.

The pJ_aintiff was off work initialJ_y for about

eight months, before returning on graduated hours,starting at four hours per week with modified duties.rn time he worked up to full hours, after getting back

in the warehouse rather than constantry sitting in theoffice which aggravated his back pain (plaintiff'scourt book 7). rn fact, in spite of just on five years

passing no\^r, he has never got back to unrestrictedduties and on the evidence that situation wirr remain

for the foreseeable future.He probably got back to normal hours by about

October 20L0 on forklift/storeman duties but with no

picking work and observing the 5 kiJ-ograms liftingIimit and avoiding repetitive bending (plaintiff'scourt book B-9) .

Schweppes put him off in about May 20L2, due tohis beíng unable to perform unrestricted duties(plaintiff's court book 11). He looked for work by

obtainj-ng assistance via the V[ork Streams employment

agency. Over some five months he appJ_ied for a number

.MCA:MD I1 /7I/74Maghamez

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of jobs but had no success. He got one interview for a

forklift position in Laverton but on filling out theform about the previous back injury, that jobappfication came to an end. Naturarly, that got himrather depressed and worried about his future in regardto work.

rndeed, since his second return to work which was

in october 2012 r accept his evidence when he said:"vühilst .r am grateful that r can keep working, rhave to be. very carefur with my back as a rrãielupof back pain can be easiJ-y trilgered and r need todo_everylli"g in my power to féep my job.,,(Pl_aintiff 's court book 1,2 and f g.l

He was moved from afternoon shift to day shift in20rr at the request of schweppes. As to his return towork in October 20t2, after being put off by hisempJ-oyer, it is sarutary to recarf the evidence thatthe union had to get invol_ved.

Schweppes' fetter fofl_owed a meeting in August

2012 (defendant's court book ri-iL). That retter putsthe plaintiff on notice that any changes to hj_s

condition or restrictions woul-d l-ead to a review of hisposition. Clearly, t.he plaintiff has to be verycareful- if he wants to keep his employment atSchweppes.

For a man of only 43 years of age, he faces hisjob being terminated if back symptoms took a change

for the worse. He has stayed employed over the

last two years but the position is clearly precarious,

in my opinion. He still_ does overtime when asked,

usually at the end of his shift and it averages about

four hours per week.

There has been no significant pecuniary

.MCA:MD L] /tI/I4Maghamez

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disadvantage to him due to the injury since returningto work on B october 2or2 (plaintiff's court book 4g),However, he did suffer l-osses before that on thefigures and could probab]-y do a few more hours overtimenow if uninjured (plaintiff's court book 4g).

I accept the praintiff suffers constant back painplus right leg symptoms. The pain varies in severitydepending, basically, on what he does (pJ_aintiff 'scourt book 8, Lt, transcript 2I, 23, 29, 55).

rt has been said many times that constant pain canamount to a very considerabfe consequence in terms ofloss of enjoyment of l-ife. rn this case r find that itdoes.

Aggravating factors include sitting for J_ong

periods (plaintiff's court book 7 and 12). Of itself,such a restriction on sitting is a very considerabreconsequence rearly for anyone. That is certainly so

for a 43 year otd man when that consequence is one thatwourd l-ast, or the probabiJ-ities, for the foreseeabl_e

future. I accept it is only 20-45 minutes sittingdepending on the chairs, before back pain increases.That was consistent with his posture in court.

He cannot stand or sit for J_ong in the one

position. He needs to shift around (ptaintiff's courtbook 12). This must intrude into one's enjoyment oflife in numerous activities of daily existence. These

are restrictions in day-to-day l_ife, whether it be at a

pJ-ace of employment, home or social_ly. Vüe J_argely

take for granted our capacity to sit for long. He isrestricted in terms of that capacity nor^r.

That evidence is consistent with him not being

.MCA:MD L] /7I/74Maghamez

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abl-e to put up with the constant sitting in the office¡ob he had on his first return to work. That evidencehas not been chal-lenged by any evidence from Schweppes

via any people at the workpJ_ace at that time.r have had the advantage of observing and hearing

the plaintiff in the wi-tness box. He was a sensibreand rel-iabl_e witness, in my opinion. He did notexaggerate his symptoms and was fairly phiJ_osophical

about his lot. He just puts up with it. Doctor Mary

wyatt for the defendant cal-l-ed him a "straightforward"witness, (defendant's court book 55). I agree withthat comment. The defendant described him as frank.No doctor criticises him in the sense of any

exaggeration of his pain or of his restrictions, noïdoes any doctor say his complaints are unreasonable.

Essentially, he self-manages his back condition(praintiff's court book 15). on the evidence, he needs

to. He has to be ever careful-. The situation has

rearly remained unchanged over the rast few years buthe has had flare-ups. He experienced two significantfJ-are-ups last year that led to weeks of increased

symptoms.

Heavy cJ-eaning is done around the house by way ofpaid home help. This is consistent with his sensible

decision to follow medical advice and avoj-d the bending

and lifting involved in those physical activities. He

constantly avoids activities that will_ flare up the

level of his back symptoms so he can go to work.

While his constant pain that will last for the

foreseeable future on the evidence satisfies the

serj-ous injury test, some other matters require

.MCA:MD 71 /LI/L4Maghamez

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conìment.

whil-e obviousry Ìeave is not sought for pecuniaryl-oss damages, evidence about the plaintiff's workcapacity in this case is ar-so rer-evant to a pain and

suffering application.His future employment is a real_ worry for this

man' even though it cannot be said to transl_ate intosignificant pecuniary disadvantage in recent times.His evidence about his vul-nerabl-e hol-d on employment

\^¡as: "This worries me enormously" (praint.if f ' s courtbook 9) . I accept his concern is wel_I-founded. He isin a tenuous position, for a man with no real_ skilrswho for L9 years or so has worked in, basically, one

field of manual-type labour.

He has been off work for two significant periodsalready, being 2008 /2009 and 2012. rn 2oL2 he said tothe psychlatrist Dr s Assadi that: "...he fert hoperess,worried and uncertain about his future" (plaintiff'scourt book 44) . r accept that evidence and also thathis worry, to an extent, is stil_f there and wiff be

with him for the foreseeabl_e future.That psychiatrist repeated that the plaintiff's

anxiety and depressive symptoms in 2OL2 \^iere in thecontext of work issues and "...because he was worriedabout J-osing his job" (plaintiff 's court book 45) .

On the probabilities, whil_e he has hetd the job

for two years no\^/, he is required to be very careful,due to the letter the defendant sent to him on 28

September 2072 and the permanent restrictions put on

him.

fssues of disturbed and interrupted sleep are

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rel-evant in this case (plaintiff 's court book g,

72-73) . The loss of the capaci_ty to enjoy a good

night's sJ-eep has been commented on often (see Haden

Engineering pty Ltd v. McKinnon t2O1Ol VSCA 69,paragraphs 2i and 45) .

on the probabirities, r accept this man has lostthe capacity to enjoy uni-nterrupted sJ-eep due to hisspinal pain and thls is a very considerabr-e consequencewhen viewed as a permanent problem.

rt needs to be remembered the praintiff has a lifeexpectancy on the Austral-ian Life Tabl_es of over 40

years. r take this into account. rt is relevant to an

application such as this (see stijepic v. one Force

Group Aust Pty Ltd & Anor l20o9l vsc 181, paragraph 43,

Phefan v. TAC 120731 VSCA 306).

To have permanent restrictions on him at his age

just in relation to J-ifting and bending is equivalentmore to a very old man's lifestyle than a strong, young

man injured at only 38 years of age. A l_imít of 5

kilograms is a very serious rimit on activity for a man

of his large physiquer âs is the need to avoidrepetitive bending. These restrictions have a

relevance that extends far beyond the workplace.

In effect, I find the plaintiff rel_ies on home

help around his home, his brother's help, and it is al_f

directed to him staying well- enough to keep his job.

His job would be jeopardised if he did the cleaning and

heavy gardening himself (plaintiff's court book 11).

I accept his enjoyment of life extends beyond justholding on to some employment.He pays a price on al_l

the evidence in terms of activitles outside work, just

.MCA:MD 71 /7L/L4Maqhamez

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so he can keep going at work. That is a very considerabfe

consequence for the plaintiff, who is at an age wherejust the dependence on home help is a very significantpiece of evidence. rt wourd be very rare indeed for a

43 year old individual_, working ful]--time, who ispaying for home herp himserf , âs wer-r as for gardenj-ng.

The medicaÌ evidence supports a view that he isvery vurnerable to further flare-ups of symptoms if he

strays outside the perimeter fence he lives and workswithin. In the most up-to-date report from thedefendant, Mr M polke in August 2014, this case was

very aptJ_y summarised:

"Ti" progress is reasonable provided he workswithin the restrictj_ons suggested, namelyconfining his job to no heávy lifting more than 5kilograms or repeated bending and by avoidingworking in areas of confined, awkwar¿areas/spaces. " (Defendant's court book 61. )

This is inof the nine

presented

Vühat

treating

.MCA:MD L] /7L/I4Maghamez

fact the most

or so doctors

up-to-date report

in the two court

across aIl-

books

to me.

Mr Polke said was reaJ-1y

neurosurgeon, Mr Han, had

Back then Mr Han said:

"fl .y opínion, he should avoid repetitive bendingand twisting to his back. He should thereforeremaln in his modified work environment ratherthan to return to his preinjury job descríption.It j-s therefore important that he extend thisrestriction with regards to J-ifting and bending tohome environment such as mowing the l-awn andmopping the fl-oor." (Plaintiff 's court book 29.)

the same as what the

said back in 201,2.

at

of

The probabilities are that this very wel-f

motivated man will keep working as long as he can

Schweppes but he pays the price, j_n terms of l_oss

enj oyment of l-ife.

I JUDGMENT

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The uncontested evidence of the plaintiff,sbrother confirms the serious restrictions with respectto lifting any significant weights and r-imitations, forexample on shopping. He confirmed arso the work thathe does to assist the praintiff around the plaintiff'shouse (plaintif f 's court book 13 (a) - (b) . The

place is an ord home apparently and there aïe a totof maintenance needs. rn essence, his brother summed

up the case when he said the plaintiff is "...very carefurin J-ooking after himsel-f " (plaintiff 's court book13(b)).

The plaintíff used to mow the lawn at home. rf he

does it now, pain l_evels woufd increase he said. Iaccept that evidence, so he pays someone efse to mow

it - They mow the lawn on the nature strip and in thefront and back yards which he would otherwise do

himsel-f pre-accj-dent. rt was a 3o-40 minute job and

he gets people in regularly and pays for it, since theinsurer stopped paying several years ago.

The plaintiff said it would have a huge impact on

his capacity to work if he mowed those r-awns himserf.Similarly, the weeding with the bending required issomething that he does not do now and pays a gardener

to do it.This plaintiff wishes to work. He does what is

required to keep his job. He limits his activitiesaround the home and in the garden in order to prevent

increases of back pain. Also home maintenance likepainting and cl-eaning the gutters he avoids doing now

himsel-f . He gets the qardener or his brother to assi-st

in regard to such jobs. He does not want to take the

.MCA:MD I1 /L7/I4Maghamez

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risk of increased symptoms.

On the medical evidence and in particular thegeneral practitioner's permanent restrictions, he isvery wise. Heavier c]-eaning inside the house is al_so

avoi-ded because of the bending and twisting thatincreases his pain. He pays for someone to do it fortwo hours or so every fortnight. These are allrestrictions for a man injured at onry aged 3g but on

the probabilities are permanent ones. They areconsequences, in terms of enjoyment of rife, t.hat in my

view are very considerable. Even shopping has caused

flare-ups of pain with some increases.As T have alluded to brì_ef1y, treatment has

effectively ceased in recent times. He stirl takesover the counter panadol and concentrates on walking,as advised by his treaters. Treatment can, in a painand suffering case, indicate hiqh l-evel-s of pain. But

when no treatment is advised that will- help, it does

not, as in this case, reflect any less pain. He was tol-dto work and he does it. He walks 30-60 minutes per day

because he was given that medical- advice (defendant's

court book 44-45) .

In this case it indicates a patient who issensibl-e. He foll_ows the restrictions put on him inorder to remain at work. His motivation and

genuineness is not 1n issue in this case.

fn earl-ier times narcotic medication was

administered to him. Physiotherapy did not help so he

does not have it no\^/.

His regards his constant pain, it can vary inintensity, depending in particul_ar what he does. It

.MCA:MD L1 /7L/74Maghamez

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can loe severe enough for him to be virtuar_ry immobireand he must just sol-dier on at work.

r accept when one looks at arr_ the evidence inthis case that there is no treatment reasonabry open tohim that will arter his si-tuation, other than beingcareful- and keeping to the rifting and bendingrestrictions on him, both at work and outside of work.

He has had significant frare-ups from time to timethat coul-d take six to eight weeks to settl_e and on

other occasions, two to three weeks. euite innocuousevents courd cause such flare-ups rike sreeping in a

different bed or stepping over a puddJ_e. Thus, interms of current treatment or the absence of it, Iaccept his evidence that he has been tol-d there is notmuch doctors can do for him. He does not go often tohis GP now as there is not much point j_n going

regularly (ptaintiff's court book l2) .

rf there is nothing by way of rerief or treatmentadvised of him on the evidence in this case, what isthe point of him going to the doctor? It reflectsa sensibl-e, stoical_ man who just does not go todoctors for the sake of making his serious injury case

Iook better.Bssentially, the advice for him is be care what

you do and when you do it, keep to those restrictionsfor the foreseeable future and wal_k regularfy. He

fol-Iows that advice and that is good treatment advice

on all the evidence in this case.

f note the repeal of sectj_on 135AE of the Act and

the Explanatory Memorandum and Second Reading Speech

that accompanied it. Clear, proper and adequate

.MCA:MD 71 /II/I4Maghamez

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reasons are still required but in this case there islittle use in quoting the doctors, opinions in anygreat detair-. some opinions are nov/ quite dated.There is really no medical debate in this case.Neverthel-ess, some brief comments are \^rarranted,although the opinions are really seJ_f_explanatory.

His treating generar practitioner has treated himover many years' commencing in the mid-gos (praintiff'scourt book 38 ) . That doctor's more up-to-date reportshelp most in evaluating consequences no\,\r, five yearsafter the accident at work. The Gp noted the praintiffhas been complaining of back pain and suffering backpain since L1 November 2009. He knows the plaintiffwel-l, havj-ng seen him over so many years now. He

described the plaintiff as a:

"...very compliant patient and he follows my adviceand that of the people working for hisRehabilitation so he can go back to work. He haspermanent disability due to his injury hesustained at work. He wil-l not be abre to go backto his preinjury duties..." (plaintiff ,s

"ouit book3e.)

The doctor diagnosed disc pathorogy at two revel-s

of the fumbar spine with nerve root compression

(plaintiff's court book 31). I read these reports as

indicating a young man permanentJ-y restricted at work

but also outside work in regard to J_ifting and bending.

He has a life expectancy of over 40 yearsr âs I have

indicated. His activities are permanentJ_y limited on

the basis of the general practitioner's reports. faccept that doctor's views.

The treating specialist, Mr Han, again saw theplaintiff on a number of occasions. He treated him inApril 2010, October 20LI, November 2OII and February

.MCA:MD 71 /L7/74Maghamez

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2072- He stated in the last retter to the Gp that discherniation, possibly irritating the L4-5 nerve root,r^ras shown on MRI scanning. Mr Han thoughtconservative treatment \^ras the best advice and theplaintif f shoul-d remain on modif ied duties (pJ_aintif f , s

court book 28) . The essence of the reports of Mr Han

is that there is not much more that can be done forthis man.

Tn his last report, he said the praintiff had

consulted him since 20to with l_ower back pain and

right-sided thigh pain. over some two years of visitsthe pain was ongoing, due to L4-5 pro]-apse (praintiff 'scourt book 29) . Mr Han put real_ restrictions on a man

then only just in his 4Os when he said:

"...he should avoid repetitive bending andtwisting to his back. He shoufd théreforeremain in his modified work envi_ronmentrather than return to his pre-injury jobdescripti_on. " (pJ_aintiff 'scourt book 29. )

Mr Han went on in some ways to speak in terms

that are at the heart of t.his application, in that he

said the work restrictions are not just l_imitatíons atwork. He transl-ated those restrictions into advice

about lifting and bendÍng in the home environment and

to avoid things such as mowing the rawn and mopping the

fl-oor. To have to permanently avoid repetitivelybending and twisting one's back for a man of the

plaintiff 's age is to live l_ife, to some extent, in a

straightj acket .

Lifting and bending are rel_evant at home, insideand outside the house, relevant to shopping, relevantto a number of his recreations and rel_evant toenjoyment of fife generally. Even the simplest of

.MCA:MD I1 /7L/14 13 JUDGMENTMaghamez

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chores like vacuumi-ng, mopping the fl_oor, cleaning theshower as well as l_awn mowing and pruning areencompassed by Mr Han, who said he shoul_d avoid t.heseactivities as they are J-ikeJ-y to exacerbate hisback pain. That was the specialist's view. At theplaintiff's âgê, those restrictions are veryconsiderabre, in my opinion. He must face the factthat injured at age 38, he faces those restrictions,effectively for the foreseeabl_e future.

Mr Han, in terms of treatment, only advj_sed a

conservative approach. rt is a very stern warning, infact, that Mr Han ends with. He said if the praintiffdid not fol-l-ow the restrictions at work and at home he

is likery to exacerbate his back pain. He may have a

larger disc prorapse, Mr Han said, if his conditiondeteriorates and that woul-d affect his ability to work.

Finally he ended:

'lH9 may even have to consider surgery."(Pl-aintiff 's court book 29.)

It is hard to envisage a stronger admonition tothe praintiff in regard to what he must do to keep hisjob and to stay a\^/ay from serious exacerbations of hispresent very restricted back. I accept Mr Han's

opinions. He supports ongoing pain that significantlyÌimits every day activities. He warns repeatedly thatpaJ-n is likeJ-y to worsen greatly and empJ-oyment be lostif his patient j_s not careful.

Mr Han and the treating Gp support, in my view,

the finding that the plaintiff has discharged the onus

of proving consequences that courd fairly be described

.MCA:MD I1 /LL/IA 74 JUDGMENTMaghamez

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as at l_east very considerable.

An Emergency Department report of a visit tohospital- on 10 September 2orr was tendered. rtconfirmed the praintiff's evidence of fJ-are-ups anddocumented one when he needed narcotic drugs andhospital at.tendance (praintiff 's court book 41) .

A psychiatric opinion from Dr S Assadi was

tendered (praintiff's court book 42). He saw thepraintiff twice in 2or2 for treatment. This hras in theperiod when the plaintiff had been put off work. The

report does very little to advance the matter in thispain and suffering consequences case which refies on a

paragraph (a) injury, save to confirm anxiety aboutemployment. due to permanent back impairment.

He noted the pJ-aintiff was keen to return to work(pJ-aintiff 's court book 45) . FortunateJ-y for theplaintiff he has achieved that return to work,

apparently with the help of his union. Dr Assadi

has not seen him since that time.

A medico-1egaI report from Mr S Doig, orthopaedicsurgeon, \^ras provided (pJ_aintiff rs court book 14) . Itis dated 6 March 20L4. He diagnosed the injury as one

of di-sc damage at L4-5 and L5lS1 (plaintiff 's court.

book 15). The condition had stabilised. The

plaintiff, he noted, in relation to treatment:

"He manages it himself".He said, further:

"There is no formal medical_ or physicat treatmentat this stage that is appropriate other than whathe is doing." (Plaintiff's court book 15.)

He afso placed real_ restrictions on the plalntiff'sactivities and said:

.MCA:MD 11 /IL/L4Maghamez

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¿ö

social-,

Mr Doig recognised these restrictions do notwhen the plaintiff wafks out the factory gate at9-51 pm each night. when his afternoon shift ends.

restrictions intrude into much of every day life.went on further to say:

"He still- has assistance for the garden and thehouse cJ-eaning. He said that worÉcover refused tocover that anã therefore he pays for thathimself because he does not i¡isrr to stir his backup by doing these activitj_es and he fears thatthey wj-Il." (plaintiff's court book 15.)

The plaintiff 's l_ife is permanently Iimited, on

Mr Doig's view, and in terms of enjoying lifegeneral-Iy, he is l_imited very considerably.

The defendant's doctors did not raise any medicaldebate in terms of this admitted compensabre l_ow back

injury. Mr D Nye, neurosurgeon, l-ast saw the plaintiffabout 18 months ago ín April 20L3. Even back inFebruary 2012 Mr Nye diagnosed disc degeneration

aggravated at work and importantJ_y he said:

"Treatment should continue to be conservative andthe cl-aimant appropriately engages in a regularwalking program." (Defendantrs court book lg.)

The condltion, Mr Nye said, \^ras chronic but stable.In terms of work, Mr Nye fairly accurately summed

up the situati-on, even three years a9o, when he said ofthe plai-ntif f :

"Continuation of restrictions with a liftingl-imit of 5 kiJ-ograms and avoidance of repeatedbending and twisting movements ofthe spine is appropriate. " (Defendantfscourt book 21. )

Vühen he last

71 /L7/r4

"As a.consequence 9_f_the physicaJ_ injury,consider that he wil_l be iestricteO ín Áisdomestic and recreational activities.,,(PÌaintiff's court book 15).

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he thought

JUDGMENT

saw the plaintiff in 2013

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the condition \^/as stabirised and he ended with thestatement:

"The worker wir-r- continue to suffer consequencesand a degree of incapacity due to the phyjicalinjury añd into the iòreseeabl_e future.,,(Defendant's court book 27. )

Mr T Gale, general surgeon, saw the plaintíff overtwo and a hal-f years ago so his views are a rittreout of date in terms of the task that I have toevaruate consequences nor¡r. rt was basicarty an AMA

permanent percentage assessment exercise that Mr Gare

undertook and he does not assist greatly in terms ofcurrent consequences.

Dr Mary Wyatt, occupational_ physician, saw theplaintiff in 2012 and 2013. She thought the ptaintiffmanaged his back condition as long as he regularl_ywarked. rn her view, the condition \^/as stabil-ised(defendant's court book 4i). She ended the report by

saying:

"Mr Maghemaz wil_l continue to suffer ongoing backcomplaints into the foreseeable future. He hashad back symptoms no\^/ for four years. "(Defendantrs court book 48) .

Vühen she saw him again in 2014, the back problem

was much the same for this "straightforward and

cooperative" man (defendant's court book 55). His

problem was chronic pain with some scj_atica

(defendantrs court book 56) . The prognosis was for the

situation to remain for the foreseeabl_e future. She

realJ-y ended her two reports with an assessment that isan accurate summary, in my view, when she said:

"He is understandably concerned as he came cl_oseto J_oslng his job and is focused on not having aflare-up in his back problem which may necessitatetaking time off work." (Defendant's court book

.MCA:MD 71 /7I/I4 I1 JUDGMENTMaghamez

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s7).

I have already referred to Mr M polke, the mostup-to-date of the doctors. Mr pofke advised workrestrictions with avoidance of picking ord.ers, repeatedbending and heavy rifting. As to treatment, he thoughtthe fower back prob]-ems h/ere better managed by beingactive with reguÌar walking than by resting(defendantrs court book 61). Mr polke ended by saying,rather pessimistical]-y for a man stil-l- aged only 43

years of age:

"Since his l_ower l_umbar disc changes arepermanent, having caused recurrent l_ower back painissues over the l_ast five years, he is likeJ_y ioconti-nue to suffer from recurrences of his rôwerback pain for the f oreseeabl_e f uture. "(Defendant's court book 61).

It has often been saj_d in applications such as

this that they involve elements of fact, degree and

value judgment. This is such a case.

On balance, the pJ_aintiff has, in my

opinion, proved "serj_ous injury". On all the evidence

in this applicatíon r find the plaintiff has discharged

the onus of showing his impairment has caused veryconsiderable permanent consequences in terms offoss of enjoyment of l-ife. I grant leave

accordingly

.MCA:MD I1 /L7/L4Maghamez

18 .]UDGMENT