Allan v Scanlens Australia Pty Ltd [2012] VCC 778 (1 June 2012)

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IN THE COUNTY COURT OF VICTORIA	Unrevised Not Restricted

KENNETH ALLAN	Plaintiff

v

SCANLENS AUSTRALIA PTY LTD	Defendant

JUDGE:	HER HONOUR JUDGE KINGS
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2012
DATE OF JUDGMENT:	1 June 2012
CASE MAY BE CITED AS:	Allan v Scanlens Australia Pty Ltd (Revised)
MEDIUM NEUTRAL CITATION:	[2012] VCC 778

Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB – serious injury application – injury to the lumbar spine – pain and suffering only – leave granted

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Rattray QC with Mr J Goldberg	Shine Lawyers Pty Ltd

For the Defendant	Mr I Gourlay	Hall & Wilcox

1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant on 22 July 2004.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:

5 The body function relied upon in this application is injury to the lumbar spine.
6 The plaintiff relied upon four affidavits, two sworn by the plaintiff on 17 September 2010 and 21 May 2012, and two sworn by the plaintiff’s wife, Amanda Allan, on 1 March 2012 and 21 May 2012. The plaintiff and Mrs Allan were cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:

9 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]

12 The test for “serious”, as set out in paragraphs (b) and (c) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[8]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[9]

14 Counsel for the defendant submitted that, firstly, the bulk of the medical evidence indicates that the injury suffered by the plaintiff was a strain or a sprain involving aggravation of a degenerative change in his lumbar spine.
15 Secondly, that the plaintiff’s injury has resolved and the work-related aggravation has passed and the plaintiff is left with age-related symptoms and symptoms which relate to a pre-existing degenerative change.
16 Thirdly, that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering.

17 In his affidavits sworn on 10 September 2010 and 21 May 2012, the plaintiff deposes that:
• He worked for the defendant from 1982 until approximately 1995. In 2003, he returned to work for the defendant as a sales manager.
• On 22 July 2004, he injured his back when he was lowering a box of coins onto a hand trolley.
• He was unable to work the next day and attended his local clinic. He was prescribed painkillers and advised to see a physiotherapist or chiropractor.
• He had a short time off work, then returned. His wife helped him and did the heavy work such as lifting the coin box and doing the banking. He stopped work in September 2005 because he had prostate surgery. He would have stopped work anyway due to his back injury. In November 2005, while he was off work, his job became unavailable.
• He commenced work as a teacher in January 2006 and currently works full-time as a teacher.
• In 2004 he had chiropractic treatment once a month. In 2005 he increased treatment to twice a month because of increased back pain. He stopped chiropractic treatment because it was not helping. He returned to chiropractic treatment and currently receives treatment every three weeks, which provides temporary improvement.
• He uses heat and massage to try to relieve his symptoms. He takes Nurofen four or five times a week and Tramadol or Mersyndol twice per week. He has had hydrotherapy in the past and goes swimming occasionally. He finds it relieves the pain temporarily.
• He experiences frequent and regular discomfort and pain in his lower back. The severity of the pain fluctuates, but he is always in pain. When the pain is bad, he feels it through his right buttock and down his right leg.
• Sleeping is difficult and the pain wakes him up at night.
• He was in the Army Reserves for thirty-seven years and was very fit: he was able to do “half-Ironman” competitions which involved swimming, riding and running. He can now only walk for 30 minutes, he cannot lift much and could not ride a bike very far.
• He can only sit in one position for about 30 minutes. He can drive but if he drives long distances he had to take regular breaks.
• He used to participate in endurance distance horse riding, but cannot do that now because of the strain on his back. He finds his balance has been affected. He is no longer able to participate in marathon running, bushwalking, camping and hiking. He has lost fitness and conditioning and has put on weight. He feels very lethargic.
• His wife has to do the heavy things around the house, such as cutting firewood and mowing. Rebuilding their property after the Black Saturday bushfires has been difficult as he has been unable to help as much as he used to. He finds this frustrating. He has difficulty with tasks which involve bending, flexing, twisting and stretching his back because of the pain. He sometimes does things around the house, but it takes him a long time to recover.
• He has previously injured his right knee and right ankle. He recovered from these injuries.
• He has previously suffered episodes of back pain. He consulted Dr Emerson for back pain on a number of occasions between June 1994 and December 2002.
18 In her affidavits sworn on 1 March 2012 and 21 May 2012, Mrs Amanda Allan deposes that:
• She is the wife of the plaintiff.
• Prior to his injury the plaintiff was very fit and they enjoyed going running together and competed in cross-country horse riding. The plaintiff can no longer go running or horse riding.
• They no longer go camping and hiking together because he cannot carry a hike pack nor sleep on the ground. When they go walking now he is slow and cannot keep up with her.
• They do not go out as much and the plaintiff is a lot grumpier. The plaintiff also often gets up in the night to take painkillers.
• She has to do the majority of the housework and nearly everything on the farm. The plaintiff helps with minor tasks such as washing, putting the goats out and feeding the animals. Occasionally he drives the tractor. Prior to the injury he was able to help with all the tasks on the farm.

19 The plaintiff was cross-examined and gave the following pertinent evidence.
• He agreed that prior to 2004 he had minor back pain which when treated by the chiropractor resolved.
• In 2002, he retired from the Army Reserves after thirty seven years due to age. He was the fifth fittest in the unit.
• In 2000 he did not think his knee injury affected his physical activity.
• His previous back pain was something he could cope with, it was different to his current pain, which radiates down the buttock and at times moves down into both buttocks, but mostly down the right.
• He described his previous back pain as minor, not severe. He only took off-the-shelf medication.
• Between December 2002 and July 2004, he had no problems with his back.
• Prior to his back injury in July 2004, he ran three times a week, approximately 2.4 kilometres and was capable of running 10 kilometres easily.
• He participated in competitive endurance riding of 80 kilometres or 160 kilometres. He thought he last participated in 1998. He won some of the rides. He said it was an expensive sport.
• In 2002, he was horse riding in the country, 5 or 6 kilometres or more weekly.
• Up until his injury he was riding a bike approximately 20 kilometres.
• He and his wife walked five to ten kilometres and sometimes went hiking. Now he can only walk for 30 minutes.
• Despite his age and injury, he fully expected to be able to participate in Ironman activities.
• His job at Gipps TAFE involves four days of teaching and one day preparation at a desk at home.
• He accommodates his injury by regular breaks when he walks around. While teaching he moves around the classroom.
• He assists his wife on the farm, with netting of the fruit trees, feeding calves with a bottle and throwing out biscuits of hay. He does not work with the horses and has not ridden a horse since the injury. He does not move hay bales.
• He sees the chiropractor when he can afford it and has the time.
• He said one day a week he could say he was “pretty good”. He said the pain varies, some days it “cripples”: it depends on the weather – if it’s hot and sunny and he is able to get exercise, it frees up.
• He said Tramadol dulls the pain. He takes Tramadol or Mersyndol two to three times a week.
• He swims.
• He was asked about what Mr Xenos said in relation to the low-back pain. He said he told the doctor exactly what was happening with the pain at the time he was examined. He said he has always had pain in the left and right side but in recent times it is mainly on the right side.
• His sleep is disturbed by the pain: he wakes up every night and walks around. Sometimes he goes back to sleep and on some occasions he does not. He gets approximately four to five hours’ sleep a night.
20 In re-examination, the plaintiff said:
• Since July 2004, the pain extends into both buttocks. The main focus these days is on the right side.
• In June 1994 and 1997, he attended the chiropractor for treatment as he had lodged WorkCover claims for injury to his back as a result of lifting items.
• The family participated in endurance riding.
• He is unable to assist in building up the farming property as he did before his injury. His wife now does the heavy work.
• He still suffers pain.
• He undertakes home exercise using machines and walks regularly. He exercises five to seven times a week. At work he walks at lunchtime and selects a U-shaped classroom which enables him to move around while teaching.

• Amanda Allan, the plaintiff’s wife, said the plaintiff assists her on the farm performing some of the easier tasks, for example, feeding out. He is able to feed the calves using a plastic milk bottle which would weigh 3 to 4 four kilograms and the longest distance he would walk is approximately 50 metres. He would do that four times a week.
• Occasionally he will drive the tractor while she loads and unloads firewood or mulch.
• Occasionally he drives the ride-on.
• He will transport the firewood but she does the loading and unloading and the splitting.
• She agreed that regardless of the state of his health he would play second fiddle as the farmer.
• She had a memory of the plaintiff suffering back pain from time to time before July 2004 but she said it was nothing like the pain he has since the injury. She said it was similar to the sort of thing that she gets when she has overdone the farm work.
• She thought the last time the plaintiff engaged in endurance horse riding was in 2003 because they performed the activity as a family and her daughter did not want to compete when she was in Year 12. Her husband was still riding up until the injury. Her husband has not ridden a horse since July 2004.
• She said he walks approximately 3 kilometres. She confirmed he had interrupted sleep at night. She said that the family planned to travel to Nepal and do a walk but he said that he could not cope with the walking, nor could he cope with staying in a hotel in Kathmandu while the family did the walk. She said she and her husband did a hike with her parents at Wilsons Promontory. He did not carry a backpack and was extremely slow.

21 On 29 April 2005, a CT scan of the lumbar spine showed mild to moderate lumbar spondylosis involving vertebral bodies and disc spaces L5-S1 disc protrusion.
22 On 19 December 2006, an MRI scan of the lumbar spine showed disc fragment noted at the L3-4 left foraminal protrusion. Spondylitic changes were noted at L4-5 and L5-S1 levels with facet joint changes.
23 On 17 May 2010, an x-ray of the lumbar spine showed spondylotic lipping was noted and osteoarthritic change at the L4-5 and L5-S1 facets.
24 On 17 May 2010, an x-ray of the thoracic spine showed marginal lipping of the thoracic vertebrae with thickening and calcification of the anterior longitudinal ligament.

25 On 26 February 2007, Dr Jedynak, general practitioner, reported that the plaintiff sustained a low-back injury whilst performing heavy lifting work over two years ago. Initially the plaintiff attended a chiropractor and then was seen by a general practitioner registrar who arranged a CT scan. An MRI scan was also performed. The plaintiff was referred to Mr Chris Xenos, a neurosurgeon, for assessment of his chronic low-back pain and advice regarding further management.

26 In November 2005, Dr Emmerson, chiropractor, confirmed that the plaintiff was receiving treatment for a work-related low-back injury. Dr Emmerson diagnosed a strain/sprain of the lumbo-pelvic region. In January 2007, Dr Emmerson diagnosed a biomechanical dysfunction of the lumbopelvic region with associated myofascitis based on the CT scan of 29 April 2005. Dr Emmerson said he applied low force technique and soft tissue technique. It was his view the plaintiff could not perform his pre-injury duties.

27 On 8 February 2010, Mr Xenox, neurosurgeon, said he saw the plaintiff on referral from his general practitioner on 20 February 2007. He said the plaintiff was describing constant fluctuating pain across his lower back, which was worse in the morning and relieved temporarily with hydrotherapy. Mr Xenos said the plaintiff had associated muscle spasm extending up from the lower back into the interscapular area, discomfort in the left buttock, but no sciatic pain down either leg. He diagnosed a lumbar spondylosis with focal left L3-4 disc prolapse which was not causing any neurological symptoms or signs. It was his view the plaintiff’s employment, in particular the repetitive heavy lifting and bending, had in part contributed to the development of the injury, although he thought the plaintiff may have some pre-existing lumbar spondylosis which has been aggravated by the repetitive lifting. He said the plaintiff’s activities of daily living will be compromised by the chronic pain in the lower back, as there will be limitations as to how much physical activity he can exert, and there will be limits on his ability to stand, sit and walk because of pain in the back. He was not a candidate for surgery.

28 The plaintiff was seen by Mr Michael Johnson, orthopaedic surgeon, at the request of his solicitors in March 2010 and August 2011. In March 2011, the plaintiff was complaining of intermittent right-sided low-back pain that occasionally extends into the right upper thigh. His symptoms were worse with twisting and bending and relieved by swimming and walking. He said his symptoms had not altered in the last two years. Because of the symptoms, his walking, sitting and driving were limited to 30 minutes.
29 Mr Johnson said the investigations show lumbar degeneration which is present at multiple levels and therefore a specific anatomical diagnosis cannot be made. Based on the plaintiff’s history, his back symptoms began at the time of a work incident in 2004. The plaintiff provided a history of being unable to perform heavy physical work. Mr Johnson said the plaintiff’s problems should be treated conservatively. He recommended a self-managed walking program and other forms of regular light exercise. Mr Johnson was aware the plaintiff was receiving chiropractic treatment which he thought was providing useful symptomatic benefit. He thought the plaintiff’s condition would continue for the foreseeable future.

30 On 15 March 2012, the plaintiff was examined by Mr Miller, orthopaedic surgeon, at the request of his solicitors. Mr Millar obtained a history of low-back pain and discomfort with radiation into both buttocks and occasionally into both legs, particularly the right leg, difficulty with repetitive bending and lifting, prolonged standing and prolonged sitting. On examination there was marked irritability during movement of the lumbar spine. Straight leg raising caused low-back discomfort on the left and right sides at 50 degrees.
31 Mr Miller said the plaintiff had suffered a musculo-ligamentous strain to the lumbar spine, aggravation of degenerative disease in the lumbar spine and possible disc injury at the L3-4 level. He said the plaintiff had significant ongoing symptoms, a poor response to conservative measures and is unlikely to be assisted by surgery. He said the prognosis for the lumbar spine is fair to poor.
32 Mr Miller said the plaintiff had pre-existing disease in the lumbar spine and pre-existing symptoms. Based on the history provided by the plaintiff and review of the treating practitioners’ medical records, Mr Millar said those symptoms were at “quite a low level” and the plaintiff was requiring only intermittent assessment and treatment of his condition. Following the event in July 2004 there was a marked deterioration in his clinical status. Mr Miller believed that the July 2004 event aggravated the pre-existing disease and/or caused further super-imposed injury. He said that affect persists.
33 Mr Millar said the July 2004 event accounts significantly for the plaintiff’s current clinical status. He said the plaintiff will require ongoing conservative treatment which was significantly work-related. He said the plaintiff was not fit for pre-injury duties and that the plaintiff will have difficulty with work that involves repetitive bending, repetitive lifting, and lifting of weights more than 5 kilograms. The plaintiff will need to shift his posture on a regular basis. Mr Millar accepted that the plaintiff had a reduced mobility and a reduced capacity for domestic and gardening tasks. He said the plaintiff had a marked severe and permanent reduction in his capacity for pre-injury leisure and recreational pursuits of a physical kind.

34 In May 2004, the plaintiff was examined by Mr Brearley, orthopaedic surgeon, at the request of the plaintiff’s solicitor. The plaintiff complained of constant pain of variable severity in the lower back. He was currently taking Nurofen regularly and Tramadol occasionally, perhaps twice a week, which he alternates with Mersyndol. He has difficulty helping his wife with the heavier aspects of the housework and outdoor activities.
35 It was Mr Brearley’s view that the plaintiff had suffered a mechanical lumbar back pain secondary to intra-disc damage of the L3-4 vertebral disc with prolapse of the disc and nerve root compression as a result of foraminal stenosis. He said the investigations showed evidence of longstanding degenerative changes and he was aware the plaintiff had previous back problems but not of a serious grade until the episode in 2004.
36 Mr Brearley said the injury in 2004 was caused by the nature of his employment which has materially contributed to the degenerative change throughout his lumbar spine. He described the employment as a significant contributing factor.
37 Mr Brearley said the plaintiff would never return to his previous employment and will always have to do lighter work, avoiding heavy and awkward lifting and repeated bending, stooping, twisting, turning and longstanding and long walking. He said the plaintiff’s lifestyle has been radically disturbed by his injury.
38 Mr Brearley said that there was no likelihood of any improvement in the foreseeable future.

39 In April 2010, the plaintiff was referred to Dr Barton, consultant occupational physician, at the request of the defendant’s insurer. Dr Barton said the investigations confirmed a diagnosis of lower back injury in the setting of lumbar spondylosis without radiculopathy.

40 On 21 April 2006, Cedar Court prepared a discharge report, which recommended that the plaintiff continue his current role as an electrical trades teacher as he did not demonstrate the capacity to return to pre-injury duties. It recommended he use the pain management and pacing techniques he learnt on the program and continue his home-based self-managed stretching and exercise routine prescribed by Cedar Court.

41 The plaintiff was medically examined by Dr Rowe, specialist occupational physician, at the request of the defendant’s insurer in February and November 2006. In February 2006, Dr Rowe said the plaintiff had a derangement at L4-5 and L5-S1 which was caused by his work over a period of years and that work continues to be a material contributing factor. He said the plaintiff had a capacity for employment, but not employment which requires lifting. He said there were no non-related factors contributing to the plaintiff’s injury. In November 2006, he noted that the plaintiff continued to have occasional and intermittent back pain and he was aware that the plaintiff was receiving chiropractic treatment as well as engaging in swimming on a regular basis. He concluded the plaintiff had a disc derangement from which he thought he had recovered. He said that the plaintiff’s symptoms were now more related to the degenerative process.
42 In January 2007, Dr Rowe said there were no signs of L4 nerve root irritation although the MRI scan suggested nerve compression of L4. He thought the changes on the MRI were constitutional and not work-related.

43 The plaintiff impressed me as a truthful and impressive witness.
44 The plaintiff was consistent in reporting the injury and its causes to the doctors whom he saw. The plaintiff answered all questions put to him in a direct and frank manner and made appropriate concessions. If anything, he underplayed the effects of his injury upon his life. His evidence was supported by his wife, Amanda Allan, who again was a most impressive witness. Overall, the plaintiff impressed me as a credible witness.

45 All doctors accepted the investigations showed evidence of longstanding degenerative changes. Most doctors accepted that the plaintiff’s work injury on 22 July 2004 had contributed to the development of his injury. Mr Xenos said the plaintiff’s employment “possibly had partly contributed to the development of his injury”. He said the event in July 2004 is likely to have aggravated the pre-existing disease and/or caused further super-imposed injury.
46 Mr Brearley said the ultimate injury was caused by the nature of the plaintiff’s employment, which has materially contributed to the degenerative change throughout his lumbosacral spine.
47 Mr Miller said the event of July 2004 accounts significantly for the plaintiff’s current clinical status.
48 Dr Rowe, occupational physician, in February 2006, accepted that work was a cause of the injury, but by November 2006 thought the plaintiff had recovered from his work-related injury and his condition was more constitutionally based. However, in 2010, Dr David Barton said the plaintiff’s investigations confirmed a diagnosis of lower back injury in the setting of lumbar spondylosis without radiculopathy. As a result of that report, the insurer accepted liability for the low-back injury and provided an impairment benefit.
49 In Ansett Australia Ltd v Taylor,[10] Ashley JA said that in cases where liability in relation to a claim was accepted, such an admission should ordinarily be regarded as very significant, albeit not conclusive, because a defendant in a particular case might be able to satisfactorily explain its conduct. In this case, no explanation was provided to the Court.
50 Given all the evidence, I accept that the injury to the lumbar spine was work-related and compensable.
51 Most of the medical witnesses accepted that the plaintiff had pre-existing degenerative changes.
52 The Court must consider what the evidence discloses as to the prior condition of the worker and determine whether the additional impairment was serious.
53 In Petkovski v Galletti,[11] the Full Court said 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 the additional impairment. I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting after July 2004 was serious.[12]
54 The only doctors to disentangle were Mr Miller and Mr Brearley. Mr Miller said, based on the history provided by the plaintiff and a review of the treating practitioners’ medical records, the plaintiff’s symptoms were at “quite a low level” and he required only interim assessment and treatment of his condition prior to July 2004. Mr Brearley relied upon the investigations which showed longstanding degenerative changes and the plaintiff’s history, which was that he had previous back problems but not of a serious grade until the work incident on 22 July 2004. This is consistent with the plaintiff’s evidence, which was that he had occasional back pain, not serious, which resolved with the assistance of chiropractic treatment and the pain was quite different to the pain he now suffers. The plaintiff’s evidence was corroborated by his wife, who said she was aware that her husband had back pain from time to time before July 2004, but nothing significant. She said it was similar to the sort of pain she gets on the farm when she has overdone things a bit.
55 Mr Brearley said the plaintiff’s employment had contributed to the degenerative change throughout his lumbar spine. Mr Miller described a “marked deterioration” in the plaintiff’s clinical status following the work injury. It was Mr Miller’s view that the work injury aggravated the pre-existing degeneration and/or caused further super-imposed injury. He said that affect continued and the work injury accounts significantly for his current status.
56 I accept the evidence of Mr Miller and Mr Brearley. Their reports are current. Their opinions are consistent and Mr Miller considered the medical records of the treating doctor, and both considered the plaintiff’s history in providing their opinions. That is, they disentangled the pre-existing condition from that caused by the work injury.
57 I accept the evidence that prior to July 2004 the symptoms were at a low level and the plaintiff required only intermittent assessment and treatment of his condition. The evidence was that there was a marked deterioration in the plaintiff’s clinical status following the injury at work in July 2004. That injury aggravated the pre-existing injury or caused a further super-imposed injury which will persist for the foreseeable future.
58 The evidence of the plaintiff was that prior to July 2004 he was physically active, participating in a wide range of sporting activities, including horse riding, competitive endurance riding, long-distance running of 10 kilometres or more, road cycling, walking/hiking and Ironman competitions. He has not ridden a horse since the injury. He is no longer capable of participating in competitive endurance riding, nor can he participate in distance running and cycling. He previously participated in marathon runs and triathlons. He pursued these activities with his wife, who continues to be fit and pursues a range of outdoor activities. He has lost fitness and condition and has put on weight. He is lethargic and frustrated because of his ongoing limitations. He is no longer capable of bushwalking and hiking. Since his injury, he completed a walk with his wife and other family members at a very slow pace. He could not participate in a family walk in Nepal because of his injury.
59 He copes with his work by altering his position frequently. He selects a u-shaped classroom which enables him to move around as required. He avoids tasks of lifting, carrying and manhandling materials and equipment, relying upon others, including students. He walks at lunchtime to free up his back. At the end of the day his wife said he is too exhausted to walk.
60 The plaintiff and his wife live on a farming property. He is limited in the assistance he can provide to his wife because of his ongoing back problems. The plaintiff’s physical functions and enjoyment of life are interfered with on a daily basis. He says his sleep is affected. His evidence, supported by his wife, was that he wakes up during the night because of the pain, has to get out of bed and walk around before returning to bed. On some occasions he can return to sleep, otherwise he rests. He said on average he sleeps for four to five hours.
61 I am satisfied that the plaintiff can no longer participate in the physical and sporting activities which were an important part of his life. He experiences constant though varied pain in his lower back. He is required to take regular analgesic medication. I am satisfied that he can no longer work in his pre injury employment or any employment which involves repetitive bending and lifting or lifting of weights of more than 5 kilograms. He needs to shift his posture on a regular basis. These restrictions affect his ability to assist his wife on the farming property and all his activities of daily living. In addition, his sleep is disturbed.
62 I am satisfied that it is fair to describe the consequences of the pain and suffering as being “more than significant or marked” and properly regarded as “considerable” when judged by a comparison with other cases in the range. The plaintiff therefore satisfies the narrative test for pain and suffering. In reaching this conclusion, I have made a comparison with other cases in the range of possible impairments.[13]
63 I am satisfied that the back injury is permanent, given the evidence from all medical witnesses. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s.134AB(38)(h) of the Act.
64 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering is successful.
65 I will hear the parties in relation to the formal orders.
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[2] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]

[9] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]

[11] [1994] 1 VR 436. Petkovski v Galletti concerned s.93 of the Transport Accident Act. Its application to s.134AB was affirmed in AG Staff Pty Ltd v Filipowicz [2012] VSCA 60 (4 April 2012).

County Court of Victoria

Allan v Scanlens Australia Pty Ltd [2012] VCC 778 (1 June 2012)