Maxiom’s Shane Don and Sach Fernando recently obtained an award of $350,000 on a Pain and Suffering basis for a man who sustained a serious lower back injury. The facts of this case are outlined below.
The Plaintiff was a 66-year-old man who was employed by the Defendant as a Sales Representative and Battery Delivery Person. Throughout the course of his employment, he was required to load his delivery van with batteries weighing up to 45 kilograms. He had to get inside the van and walk over the batteries sometimes to get them in the correct position.
In May 2010, whilst loading batteries inside the back of the van, the Plaintiff slipped and fell off a battery and landed on his right side.
As a result of the incident, the Plaintiff sustained intervertebral disc disruption at L4/5 and L5/S1, right leg sciatica, transient cauda-equina syndrome and soft tissue injuries to his right shoulder, right hip and right ankle.
The Plaintiff underwent extensive treatment, listed as follows:
- In September 2010, he had a right hip injection.
- In December 2010, he had an epidural steroid injection into his back.
- In August 2011, he underwent decompression of his lumbar spine at L4/5 and L5/S1.
- In August 2011, he underwent a further laminectomy surgery of his lower back.
- In December 2011, he underwent a posterior lumbar interbody fusion at L4/5 and L5/S1.
- In March 2016, he underwent removal of lumbar instrumentation and further decompression of spine, particularly on the right at L5/S1.
- In April 2018, he underwent an open removal of foreign body/hypodermic needle operation.
- In 2019, he completed a Pain Management Program.
Despite the treatment, the Plaintiff’s doctors opined that he had developed chronic lower back pain and that his prognosis is poor.
The Plaintiff had reached the age of retirement, which meant that he no longer had an entitlement to weekly payments.
The Plaintiff was granted leave to bring common law proceedings for the recovery of pain and suffering damages.
Pain and Suffering Consequences:
The Plaintiff’s consequences included, but were not limited to:
- Restriction in walking with the aid of crutches.
- It is almost impossible for him to do any exercise now and since his injury he had gained over 40 kilograms.
- His injuries have necessitated home modifications including ergonomic chairs, installation of a walk-in shower and handrails.
- Due to the cauda equina syndrome and disruptions in his lower extremities, he is required to wear adult nappies.
- He was no longer able to ride motorbikes as he did prior to the accident.
The case against the Defendant was primarily that he was required to carry out hazardous manual handling duties in circumstances where there as a reasonably foreseeable risk of injury. In addition, we submitted that:
- The Defendant failed to provide and maintain a safe system of work;
- The Defendant failed to provide the Plaintiff with proper instructions, supervision and training;
- The Defendant failed to take any reasonable steps to reduce the risk of injury, so far as was reasonably practicable; and
- Prior to the incident, the Plaintiff had identified a reasonably practicable alternative to the Defendant’s system of work, by placing a chipboard over the batteries to provide a stable surface on which to walk. The Defendant had instructed the Plaintiff to remove the chip board.
If you have been injured at work, we can help. Please call us on 1800 85 30 85 or 0488 722 444 for an obligation free discussion of your case.