Barbuto v TNT Australia Pty Ltd
[2009] VCC 96
•4 February 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-01289
| SAM BARBUTO | Plaintiff |
| v | |
| TNT AUSTRALIA PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 January 2009 |
| DATE OF JUDGMENT: | 4 February 2009 |
| CASE MAY BE CITED AS: | Barbuto v TNT Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0096 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1958 – plaintiff suffered a lower back injury prior to 20 October 1999 aggravated by work undertaken after 20 October 1999 – plaintiff returned to full time alternative work – whether the aggravation amounted to a serious injury for pain and suffering consequences – comparison of the consequences before and subsequent to 20 October 1999 – Petkovski v Galletti (1994) 1 VR 436; Sumble v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 and Dwyer v Calco Timbers Pty Ltd (No. 2) [2008] VSCA 260 – leave granted: Section 134AB(38)(c)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC | Melbourne Injury Lawyers Ltd |
| Mr A Ingram | ||
| For the Defendant | Mr J Parrish SC | Herbert Geer |
| Ms Barratt | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 4 April 2008 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendant after 20 October 1999.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering.
3 Mr B Collis QC appeared with Mr A Ingram of counsel for the plaintiff, and Mr J Parrish SC appeared with Ms Barratt of counsel for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined •
The plaintiff tendered the Plaintiff’s Court Book (“PCB”) pages 5-63 and from the Defendant’s Court Book (“DCB”) pages 1-3 and 8-44: Exhibit A
•
The defendant tendered the Defendant's Court Book pages 1-3 and 8- 44: Exhibit 1.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37) (a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities under subsection (19)(a).
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering which, when judged with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(g)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(h)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[3]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] (1994) 1 VR 436
The Plaintiff’s Background and Medical Treatment
8 The plaintiff was born on 4 April 1959. He is now forty-nine years of age. He is a married man with three children. His children are about twenty-three, twenty-two and four years of age.
9 The plaintiff last attended Swinburne Technical School, leaving part way through Year 11. Subsequently, he pursued employment of various kinds before obtaining employment in the transport industry.
10 At the time when the plaintiff suffered the claimed injury he was working for the defendant as a courier driver. He had worked for the defendant in its various guises since he was about twenty-eight years of age.[4] The working arrangement comprised the plaintiff purchasing and running his own vehicle and working for the defendant on a contract basis.
[4] PCB 6-7
11 The actual tasks performed by the plaintiff included manually loading his vehicle and then driving it to various destinations where he would drop off goods.
12 As a consequence of the manual handling he was required to undertake, the plaintiff began suffering problems with his lower back as early as 1995. He saw a Dr Lee, general practitioner, in about March 1995 after experiencing problems with his lower back after lifting a photocopier. He was prescribed anti-inflammatory medication and was off work for about one month.
13 The plaintiff saw Dr Lee again on 15 August 1996 with persisting lower back problems. He was referred to have an x-ray which apparently showed degenerative changes at L4-5 and L5-S1.
14 He suffered a more significant impact on his lower back on 4 November 1998 when lifting a photocopier. After that incident occurred he saw Dr Giarrusso, general practitioner, on 6 November 1998. He was referred to have further x- rays which showed similar degenerative changes similar to those shown on the previous x-ray. He was off work until December 1998.[5]
[5] PCB 8-9. The treatment provided by Dr Giarrusso is described by him in his report dated 2 January 2002 at PCB 29
15 The plaintiff returned to his normal work in December 1998 and continued in that work until he suffered the claimed injury in 2001. The plaintiff describes manual handling on 21 February 2001 which led to him suffering an increase in symptoms in his lower back, and an incident which occurred on 14 September 2001 when he lifted a laser printer which weighed somewhere between 40-45 kilograms. As a result of lifting on the latter occasion he described suffering sharp pain in the lower right side of his lower back as if he had been stabbed, resulting in him dropping the printer and falling to his knees and then being unable to move for some time.[6]
[6] PCB 9-10
16 The application for serious injury made by the plaintiff focussed upon the incident which occurred on 14 September 2001 as being the major episode of manual handling which resulted in the claimed injury.
17 I will deal in more detail below with the submission made by Mr Parrish that although the manual handling which the plaintiff undertook on and after 20 October 1999, and in particular, on 14 September 2001, resulted in an aggravation of the plaintiff’s pre-existing lower back problems a comparison between the pre-existing problems which really emerged more significantly after the incident of 4 November 1998 and the problems which the plaintiff experienced subsequent to the incident of 14 September 2001 do not amount to a serious injury.
18 Following the incident of 14 September 2001, the plaintiff saw Dr Giarrusso on 17 September 2001.[7] He was referred to have further x-rays which showed similar degenerative changes as were shown on the earlier x-rays. Dr Giarrusso diagnosed a strain of the facet joint and a ligamentous injury which he considered to be an aggravation of the plaintiff’s previous lower back problems. He treated the plaintiff with analgesics and anti-inflammatory medication and with referral to physiotherapy.
[7] PCB 35-38
19 The plaintiff was absent from his employment until 24 September 2001, returning on light duties which did not require heavy lifting, and by 11 October 2001 he was certified as being fit to return to normal duties. However, he saw Dr Giarrusso again on 28 December 2001, reporting that after returning to his normal duties he experienced frequent episodes of lower back pain. He was advised to increase physiotherapy from once to twice a week for a three- month period and he was prescribed Panadeine Forte for pain relief.
20 The plaintiff next saw Dr Giarrusso on 29 June 2002 complaining of right sided lower back pain. He described that he was working as a courier driver, having good days and bad days. It was at that stage that Dr Giarrusso referred the plaintiff to have a CT scan which revealed a diffuse posterior L4-5 disc bulge extending into both L4 nerve root exit foramen. It also revealed that at L5-S1 there was a very small disc herniation without any nerve root compromise.[8]
[8] PCB 19
21 According to Dr Giarrusso, the plaintiff saw him on 9 September 2003; 15 November 2003 and 6 January 2004 complaining of exacerbations of his lower back pain. On examination on the first of those occasions he presented with right-sided sciatica in the L5 distribution. On the second and third of those occasions he presented with exacerbations of lower back pain and significant reduction in spinal movements.
22 Dr Giarrusso referred the plaintiff to Mr de la Harpe, orthopaedic surgeon, who first saw the plaintiff on 24 May 2004.[9] Mr de la Harpe recorded that the plaintiff had suffered lower back pain intermittently since 1997 when lifting heavy photocopying machines up and down stairs.[10]
[9] PCB 25-27
[10] The history given to Mr de la Harpe is inconsistent with the plaintiff’s evidence that the initial onset of more significant lower back pain occurred when lifting a photocopy on 4 November 1998
23 Mr de la Harpe referred the plaintiff to have an MRI scan which was taken on 31 May 2004.[11] He reviewed the plaintiff in June 2004 to discuss the MRI scan. He advised against surgery. He advised the plaintiff that he was undertaking too much manual labour and that he should look for lighter duties.[12]
[11] PCB 20
[12] PCB 26-27
24 By the time the plaintiff saw Mr de la Harpe he had been retrenched by the defendant on 1 October 2001 and had taken up work as a courier driver for a company known as Aventori Logistics, working five days per week and up to 10 hours per day. Mr de la Harpe last reviewed the plaintiff on 26 October 2007.
25 At present the plaintiff sees Dr Giarrusso intermittently. In the last twelve months he has seen him between four and six times, although, the plaintiff said he was uncertain about that estimate. Dr Giarrusso prescribes the plaintiff Panadeine Forte and Tramadol for pain relief and the plaintiff also takes Panadeine which he is able to obtain without the necessity for a prescription.[13]
[13] Transcript 16-17
26 The plaintiff said that he now takes a lot of medication, and when he was asked to compare what he was like in 2007 with the present time he said he was experiencing more pain now.[14] He also said that he wears a back brace which he believes he was given after the incident of 4 November 1998.[15] He said that he now wears the back brace permanently when he works and even around his home even though he does very little by way of domestic and household chores,[16] whereas after 4 November 1998 he said he wore it when he was tender and sore and probably would have worn it at some point during the week from that time.[17]
[14] Transcript 17-18 and 29
[15] Transcript 20
[16] Transcript 11, 28
[17] Transcript 24-25 and 31
The Prior Lower Back Condition
27 There is no doubt that the plaintiff suffered intermittent problems with his lower back at the least from the incident which occurred on 4 November 1998.
28 He said that from 4 November 1998 he had to exercise care about what he did physically in order to take care of his lower back and he knew if he over did it he would pay for it and would lose the occasional day of work.[18] When he was pressed on this subject during cross-examination he added that the comparison between what he was like before the incident of 14 September 2001 is that at present he has pain which is now more severe and constant.[19]
[18] Transcript 23-24
[19] Transcript 24 and 29
29 Mr Parrish submitted that the consequences to the plaintiff of the lower back problems he was experiencing from 4 November 1998 are consistent with the consequences which the plaintiff says are causally connected with the aggravation of his lower back which occurred as a result of the incident on 14 September 2001. For example, when cross-examined, the plaintiff conceded that between November 1998 and September 2001 he was careful about lifting, bending and like physical activities; that his sleep was disrupted to some extent, as was his sexual relationship with his wife.[20]
[20] Transcript 29-33
30 However, the plaintiff gave one telling answer during cross-examination in which he compendiously and comprehensively made the comparison between how his lower back problem was troubling him prior to 14 September 2001 when compared with what occurred as a result of that incident:
“Q: Indeed, that's been really the case since 1998?--- A: No, not really, because it's actually different because it used to stabilise but now it's just like I said before, it's hurting me constantly now and it won't go away. Like I said, it's like a toothache and it's just unbearable.
[21] Transcript 33
Q: Yes, I understand that and I think you've made that plain that as far you're concerned the pain is worse. But I'm talking about the activities that you do. Whereas you're restricted now, you were restricted to some degree after 1998 too?--- A: Yes.”[21]
31 There is no doubt that the plaintiff had problems with his lower back going back as far as early 1995 which became more troublesome as a result of the incident of 4 November 1998 and that he required medical treatment, however the plaintiff maintained his employment from 1995 until 14 September 2001 performing what I conclude was moderately heavy manual handling work. He was required to lift and carry parcels, but also machinery. In answer to a question I put to him in order to clarify what it was he was lifting and carrying, he described that he was required to lift machinery, and gave examples of photocopiers and dental surgery tables.[22]
[22] Transcript 34
32 It is evident enough from the fact that the plaintiff was able to continue doing that work that his lower back was strong and durable enough for him to maintain his employment until 14 September 2001 when he lifted a very heavy laser printer weighing between 40 and 45 kilograms. I observed the plaintiff as he walked to and from the witness box and while he sat in the witness box. He appeared to me to be a man of average height and weight. Lifting an object weighing between 40 and 45 kilograms would be a very substantial, if not perilous lift because of the risk to him of suffering injury to those parts of his body exposed to the stresses of the lift, and in particular, his lower back.
33 Therefore, the conclusion I have reached is that I see no reason why I should not accept the evidence of the plaintiff that he was able to do his ordinary work as a courier with all the difficulties associated with it until 14 September 2001 and that he was able to maintain his lower back reasonably well, and had it not been for the lift which he undertook on that day he probably would have been able to continue working.
34 Furthermore, I do not accept that the plaintiff’s lower back problem was so significant prior to 14 September 2001 for there to be any merit in the submission that what he is suffering by way of consequences now is what he was suffering by way of consequences between November 1998 in September 2001.
35 I accept the plaintiff’s evidence that there is a dramatic difference between the consequences flowing from what occurred to him in November 1998 and in September 2001, and I point to the answer he gave during cross-examination referred to in paragraph 30 above which I consider to be a fair and reasonable summary of a comparison between what each incident actually caused the plaintiff by way of consequences.
Serious Injury or Not
36 The only issue which falls for my determination is whether the consequences of the aggravation of the plaintiff’s pre-existing lower back problem is serious.
37 The plaintiff’s evidence is that he suffered an aggravation of pre-existing lower back problems. There is strong medical support for the conclusion that he did in fact suffer an aggravation.
38 Dr Giarrusso was of the opinion that the plaintiff’s employment between 4 November 1998 and 1 October 2001 was a significant contributing factor to the occurrence of the plaintiff’s injury and that his injury and the level of impairment are permanent.[23]
[23] PCB 37
39 Mr de la Harpe was of the opinion that it was likely that the manual labour in which the plaintiff was involved between October 1999 and 2000 contributed to his pre-existing degenerative lumbar spine condition, and more particularly, that his employment during that period was a significant contributing factor to what Mr de la Harpe saw as his current degenerative condition.[24] Although, Mr de la Harpe did not expressly state an opinion that the impairment flowing from the aggravation of the plaintiff’s pre-existing degenerative lumbar condition was permanent, it seems to me that in the absence of him saying otherwise I can infer that he was of that opinion.
[24] Mr de la Harpe set out his opinion regarding the plaintiff’s lower back injury in a report dated 26 October 2007 at PCB 25-27, and set out the opinion just referred to in a short report dated 18 September 2008 at PCB 28
40 Mr Khan, orthopaedic surgeon, examined the plaintiff on a medico-legal basis on 15 September 2008. He was of the opinion that the plaintiff had aggravated or flared up pre-existing asymptomatic disc degeneration in his lower to lumbar discs. He was also of the opinion that the plaintiff suffered a discogenic injury and a disc prolapse at L5-S1 as well as a flare-up of facet joint arthropathy as a result of his employment between 20 October 1999 and 1 October 2001.[25]
[25] PCB 51
41 Mr Klug, neurosurgeon, examined the plaintiff on a medico-legal basis on 10 December 2008. He was of the opinion that information he was provided by the plaintiff’s solicitors substantiated his opinion that as a result of incidents which occurred in 2001, and in particular in September 2001, led to an aggravation of a pre-existing lower back condition.[26]
[26] Mr Klug set out his opinion regarding the plaintiff’s lower back injury in a report dated 17 December 2008 at PCB 54-59, and set out the opinion just referred to in a short report dated 20 to December 2008 at PCB 61-62
42 The medical evidence relied upon by the defendant is essentially to the same effect – Dr Wyatt, occupational physician,[27] Dr Baynes, occupational physician;[28] Mr Conroy, general surgeon;[29] and Mr Polke, orthopaedic surgeon. [30]
[27] DCB 32-33; 34-35 (this report appears to be the same as the previous report, but bearing a different date); DCB 37, although Dr Wyatt was of the opinion on the last occasion she examined the plaintiff on 12 October 2001 that his lower back problem was likely to settle and that it was reasonable to accept that the effect to the aggravation would last for another six months at least
[28] DCB 10
[29] DCB 14
[30] DCB 23, although in answer to a specific question concerning the implication of the plaintiff's employment from October 1999, Mr Polke chose to answer that question with reference to heavy lifting and repeated bending over a number of years resulting in aggravation of the degenerative changes in the plaintiff’s lower spine. He appears to have included the contribution to the ultimate problem the plaintiff was experiencing with his lower back to his work both before and after 20 October 1999
43 Mr Parrish submitted that the plaintiff could not succeed for two reasons: firstly, because he had conceded that many of the consequences which he refers to in his affidavit on which he relies in this application were present before 20 October 1999; and secondly, the fact that the plaintiff was able to work as a courier driver for up to 50 hours per week was not consistent with the aggravation of his pre-existing lower back condition being serious.
44 In support of the latter submission, Mr Parrish referred me to Sumbul v Melbourne All Toya Wreckers Pty Ltd[31] and specifically to the observations of Chernov JA that it would ordinarily be difficult to conclude that pain and suffering consequences were at least very considerable where the applicant was physically able to return to alternative employment.
[31] [2006] VSCA 292, at paragraph 24
45 As a general proposition I think that is correct, however, it is to be contrasted with Dwyer v Calco Timbers Pty Ltd (No.2)[32] in which Nettle JA observed that would be unfortunate, and indeed wrong, if an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.
[32] [2008] VSCA 260, at paragraph 3
46 My impression of the plaintiff is that he did suffer a major aggravation of the pre-existing problem to his lower back which restricts him to the lighter courier work he is presently doing. His medical advisers consider that work is inappropriate for him. That was certainly the opinion of Dr Giarrusso;[33] Mr de la Harpe[34] and also Mr Khan;[35] Mr Klug;[36] Dr Baynes;[37] and Mr Polke.[38]
[33] PCB 37
[34] PCB 27
[35] PCB 52
[36] PCB 59
[37] DCB 10
[38] DCB 24
47 It was only Dr Wyatt who was of the opinion that the plaintiff was fit to return to his normal duties after she examined him on 12 October 2001. I do not accept that opinion, given that the weight of the medical evidence from other medical practitioners who have examined the plaintiff from the time not long after he was injured and up to the present is that restrictions should be placed upon his capacity for work.
48 I am not persuaded by the submission made by Mr Parrish that the fact that the plaintiff is working as a courier driver doing much lighter work, even though he is working up to 50 hours per week, of itself means that the plaintiff has not suffered a serious injury, however, it is certainly a factor which I must bring into account in ultimately weighing up whether the consequences to the plaintiff of the impairment resulting from the aggravation of the pre-existing degenerative changes to his lower back are serious.
49 The plaintiff gave evidence that after he was retrenched by the defendant he obtained employment with Aventori Logistics as a courier driver in 2002. His usual working day involves leaving his home at Bundoora at about 5:30 am and making his way to the premises of Toll Ipec in Laverton. The travelling time is about 35 to 40 minutes. He spends the first two hours of each day loading his van with parcels, some of which could weigh up to 15 kilograms and then he undertakes a delivery round through the eastern suburbs. The run may involve dropping off parcels on thirty to forty occasions. He sometimes picks up parcels to take back to the premises of Toll Ipec and from there he drives home at about 4.30-5.00 pm.[39]
[39] Transcript 13-16
50 The conclusion I have reached is that the plaintiff’s work is absent the heavy lifting which he once had to do, that is, lifting the kind of goods which he described in paragraph 31 above. It is work which Dr Giarrusso and Mr de la Harpe considered was too heavy for the plaintiff, leading them to conclude that he should do lighter work and should retrain. It is work which is probably unsuitable for the plaintiff given the fact that he is reliant on painkilling medication frequently, pays with pain if he involves himself in too much physical activity, and is now a situation where his pain is worsening, and by inference ,if his pain is worsening then his general ability and capacity to sustain physical effort is diminishing.
51 The fact that the plaintiff is able to work must also be contrasted with what he said about his capacity to undertake work around his home. He said that he essentially does nothing around his home at the moment, and wears the back brace because he is in constant pain.[40]
[40] Transcript 30-31
52 The strong impression I gained from the evidence given by the plaintiff and the way in which he gave it was that he is something of a stoic and is intent upon working to the extent that he can and is prepared to endure the painful consequences of working, but is not prepared to endure the consequences of doing work around his home.
53 This outcome for the plaintiff is not inconsistent with the opinions of Dr Giarrusso and Mr de la Harpe regarding the advisability of the plaintiff doing lighter work and retraining.
54 Therefore, and on the basis of the analysis of the submissions made by Mr Parrish and the evidence of the plaintiff and also the medical evidence I am not persuaded that the fact that the plaintiff continues to work in a light courier job equates with the plaintiff only having consequences of the aggravation of the pre-existing problems with his lower back of a modest to moderate kind. Rather, I consider that the observation made by Nettle JA is more apposite to the position of the plaintiff. It is very clear to me that the plaintiff has not resigned himself to the injury, however, his present circumstances where he is reliant on medication and has pain and restriction of movement as he describes it probably puts him at risk of not being able to continue in his work as a courier driver indefinitely. This is entirely consistent with the evidence given by the plaintiff, and also his evidence about his capacity to undertake tasks involved not only in his work but also at his home because he has pain, the pain is irritating, and he does not know if he can work any more.[41]
[41] Transcript 34
55 Even though the plaintiff might have had some consequences of the pre- existing problems with his lower back, I am not persuaded that those consequences were all that significant when compared with what the plaintiff endures now.
56 In his affidavit sworn 27 November 2007[42] the plaintiff describes never being free of pain; having difficulty with modest tasks, such as pulling on his underwear and socks in the morning without assistance from his wife; having symptoms of pain in his right leg; having an inability to sit and stand for long periods of time; having difficulty with movements required to undertake manual handling, such as twisting; having difficulty with modest postural movements, such as kneeling to do simple gardening tasks; being restricted in undertaking maintenance work around his home and engaging in social activities with his family; having sleep disturbance; having a diminished sexual relationship with his wife; having to lie down on the floor when he returns from work to relieve the pain in his lower back and right leg, and not being able to lift his third child.[43]
[42] PCB 5-15
[43] PCB 13-14
57 Furthermore, the plaintiff gave evidence that he does nothing around his home. He now feels insecure and depressed. His wife apparently does not accept or believe that he is as disabled as he says and this has led to a lot of arguments with his wife.[44]
[44] Transcript 34
58 The plaintiff is still relatively young. He is now forty-nine years of age. If he were not injured he would have had many years ahead of him to work gainfully and to enjoy his nonworking life fruitfully. All of this has been diminished dramatically.
59 I accept the plaintiff’s evidence that he has suffered an aggravation of a pre- existing problem with his lower back and that it has consequences for him consistent with the findings I have made above. Therefore, I find that the aggravation of the pre-existing problems with his lower back has impaired the function of his lower back to such an extent that the impairment is permanent and that it deserves the description "at the least very considerable". I have reached that conclusion after making the relevant comparison as I have referred to it in my discussion of the statutory scheme.
Conclusion
60 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering arising out of his employment with the defendant on and after 20 October 1999.
61 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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