Bennett, Luke v Crane Aid Pty Ltd

[2009] VCC 1476

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-08-03728

LUKE BENNETT	Plaintiff
v
CRANE AID PTY LTD	Defendant

---

JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	6 and 7 October 2009
DATE OF JUDGMENT:	30 October 2009
CASE MAY BE CITED AS:	Bennett, Luke v Crane Aid Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 1476

REASONS FOR JUDGMENT

---

Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 – whether the consequences of a lower back injury were serious – satisfaction of test of loss of earning permits the plaintiff to claim damages for pain and suffering: section 134AB(37)(a) and (38)(c), (e) and (f)

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Moore SC with	Slater & Gordon
Mr M Garnham
For the Defendant	Mr I Gourlay	Hall & Wilcox
HIS HONOUR:

Background

1 Before the Court is an application brought by Originating Motion filed on 8 September 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.

2          The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.

3          Mr J Moore SC appeared with Mr M Garnham of Counsel for the plaintiff and Mr I Gourlay of Counsel appeared for the defendant.

4          The body function which the plaintiff says has been lost or impaired is the plaintiff’s lower back.

5          The following evidence was adduced during the hearing:

• The plaintiff gave evidence and was cross-examined;

• Dr O'Toole, general practitioner, gave evidence and was cross-examined;

• The plaintiff tendered the Plaintiff’s Court Book (“PCB”) pages 10-64: Exhibit A;

• The defendant tendered the Defendant’s Court Book (“DCB”) pages 1-228: 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, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)	Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison 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)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)	Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)	Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)	Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the appropriate case.
(j)	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.
(k)	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.[4]

[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]             Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170

[4] (1994) 1 VR 436

8          I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

The Plaintiff’s Background

9          The plaintiff was born on 10 March 1997. He is now twenty years of age. He is in a relationship with a young woman with whom he has had a child. The plaintiff and his domestic partner reside with the plaintiff's mother.

10        The plaintiff last had formal schooling at the Doveton Secondary College, leaving halfway through Year 9.

11        The plaintiff's school attendance was interrupted as a consequence of undergoing a number of ear operations which led to him missing a lot of his formal schooling.

12        Dr Hodgson, psychologist, examined the plaintiff on 14 May 2009, at which time he undertook extensive testing of the plaintiff. He provided a report dated 19 May 2009 in which he set out the testing undertaken on the plaintiff and the results of that testing.[5]

[5]             PCB 56-60b. The report of Dr Hodgson commences at PCB 52. The numbering of his report in the PCB ceases at 60. There are three further pages which I have numbered 60b, 60c and 60d.

13        The test results disclose that the plaintiff has a borderline IQ. His verbal IQ was very poor. The testing disclosed that he scored better than only one of a hundred of his peers. His performance IQ was almost in the middle of the population range, that is, he scored as well as 45 out of 100 of his peers.

14        It was very clear to me during the plaintiff’s oral evidence that his verbal responses to simple questions were very poor. He tended to use the minimum number of words when answering questions and would often give a vague and non-responsive answer.

15        My first impression was that the plaintiff was disinterested in answering questions put to him during examination, re-examination and cross- examination. However, after reading the report of Dr Hodgson, his behaviour when giving evidence is well explained, and probably an example of the very results obtained by Dr Hodgson that the plaintiff's capacity to give verbal responses is very poor.

16        Dr O'Toole was also of the opinion that the plaintiff was not a good historian and was vague when giving a history.[6]

[6]             Transcript 64

17        The plaintiff was diagnosed as suffering from attention deficit hyperactivity disorder when he was very young. He was prescribed Ritalin and later Dexamphetamine. The plaintiff said that it made little difference. According to Dr O'Toole, it may be that the plaintiff did not take the Dexamphetamine.[7]

[7]             Transcript 58-59

18        Dr O'Toole described the nature of attention deficit hyperactivity disorder as the displaying symptoms of short attention span and hyperactivity. He described Ritalin as a stimulant to the central nervous system which can settle the symptoms of an overactive disorder. It does not cure the underlying problem.[8]

[8]             Transcript 58-59

19        The plaintiff ran into trouble with the police. He was caught, convicted and dealt with on a number of counts of theft and assault. Some of the counts were for stealing petrol.[9]

[9]             Transcript 12-13

20        The plaintiff also had an illicit drugs addiction. He abused cannabis. He said that he has tried to remove himself from his peer group, and has succeeded in doing so to the point where he has reduced his reliance on cannabis and considers that he is getting on well these days.[10]

[10]           Transcript 12-13

21        The plaintiff has suffered a dramatic increase in his weight from about 110 kilograms to 160 to 165 kilograms. The upward spiral in his weight occurred when his mother was hospitalised. His stepfather refused to cook, leading the plaintiff and his stepfather to rely on take-away food. The plaintiff said he has an enjoyment of take-away food, and I took that to mean almost an addiction to it, and he also has an addiction to Coca-Cola.[11]

[11]           Transcript 13 and DCB 33

22        The plaintiff’s psychiatric state before he suffered the injury upon which this application is based was turbulent. In about February 2002, the plaintiff's general practitioner suggested he obtain psychiatric treatment. The plaintiff was reluctant to pursue that sort of treatment. He was given a prescription for Zoloft, which is an anti-depressant. He said he has been prescribed anti- depressants since 2002.[12]

[12]           Transcript 21-22

23        The plaintiff was prescribed Temazepam (Valium), and Seroquel for his psychiatric disorder. He overdosed on Valium and was hospitalised at the Dandenong Hospital in February 2007.[13] He overdosed on Seroquel and was hospitalised again at the Dandenong Hospital in November 2007.[14] He was later treated in February 2008 for three-and-a-half weeks for psychiatric treatment at the Dandenong Hospital. The latter episode of inpatient treatment occurred after the plaintiff had an argument with his mother and subsequently took an overdose of tablets.

[13]           Transcript 36

[14]           Transcript 36

24        The plaintiff had a poor working record before obtaining employment with the defendant. His employment history since leaving school is as follows:

• Melbourne's Cheapest Tyres as a truck jockey for three-and-a-half months;

• Kentucky Fried Chicken for about three weeks as a cook;

• Hungry Jack's for one week as a cook;

• The Shed Haven for about three weeks as a trade’s assistant.[15]

[15]           Transcript 17

The Incident and the Plaintiff's Medical Treatment

25        The plaintiff commenced employment with the defendant on 1 February 2006 as a trade’s assistant. On that day, and after working for a few hours, he lifted a steel plate from the factory floor, with the result that he felt severe pain in his lower back.[16]

[16]           PCB 11

26        The plaintiff saw Dr Ellerton, general practitioner, on 2 February 2006. The nature of the plaintiff’s symptoms were so severe that Dr Ellerton referred the plaintiff to the Emergency Department at the Cabrini Hospital where he was seen by Mr Rogers, neurosurgeon.

27        Mr Rogers obtained a history from the plaintiff that he suffered severe mid-line lumbar pain with radiation into both buttocks and legs and the onset of faecal incontinence. On examination, Mr Rogers found reduced anal tone. An MRI scan performed on 3 February 2006 demonstrated a massive central disc bulge at L3-4 which was compressing the thecal sac.

28        Mr Rogers operated on the plaintiff on 3 February 2006. At operation he found the thecal sac to be displaced by the massive disc prolapse, and he found two linear tears of the posterior longitudinal ligament. He divided some superficial fibres of the ligament enabling him to retrieve a very large extruded piece of disc material measuring two-and-a-half centimetres in length.[17]

[17]           PCB 27

29        Mr Rogers reviewed the plaintiff on 22 March 2006, at which time the plaintiff's bilateral sciatica had resolved and he had normal bowel and bladder function. Mr Rogers referred the plaintiff to Dr Lim, consultant in rehabilitation and pain medicine.

30        Mr Rogers was of the opinion that the plaintiff had made a complete neurological recovery. When he last saw him the plaintiff had some mild mid- line lower back pain. He considered that there was a possibility that the plaintiff might require some further surgical treatment if there was a recurrent disc prolapse. He was of the opinion that under no circumstances should the plaintiff undertake heavy work, meaning that he should not lift weights greater than 10 kilograms nor undertake activity which involved repetitive bending, lifting and twisting. He was of the opinion that the plaintiff could undertake suitable employment.[18]

[18]           PCB 25-26

31        Dr O'Toole took over the plaintiff's treatment from Dr Ellerton. He provided three medical reports dated 2 November 2008, 14 January 2007 and 24 September 2009. Dr O'Toole took a history from the plaintiff that he continues to complain of pain in his lower back which is aggravated by physical activity, and more particularly, that the pain is aggravated by lifting, bending and twisting, and that the plaintiff’s sitting and standing tolerance is limited.[19]

[19]           PCB 22a-22b

32        Dr O'Toole was of the opinion that the plaintiff essentially had no capacity for employment. It was an opinion he repeated when he was cross-examined by Mr Gourlay. Dr O'Toole was convinced that the plaintiff was suffering from ongoing pain and that physical activity was a problem for him. He characterised the plaintiff's capacity to work in a rather compelling way when he said:

"He has no saleable skills, apart from his physical strength and that has now been compromised by his surgical treatment. The underlying problem, he's a labourer, his back is, to use the expression, his backbone is his skill, and it's gone."[20]

[20]           Transcript 65

33        At present the plaintiff takes medication when he needs it to treat more acute pain. He said that sometimes if he moves the wrong way he will have more pain.[21] On occasions when he suffers an aggravation of this kind he can also suffer pain going into his legs, and the pain can be at high levels. He deals with those acute episodes by taking painkillers and lying down and relaxing. He said it could take up to a couple of hours for the pain to return to lesser levels.[22]

[21]           Transcript 28-29

[22]           Transcript 47-48

The Other Medical Opinions

34        The plaintiff has been examined by five specialists on a medico-legal basis, all of whom agree that the plaintiff suffered a massive disc prolapse at L3-4, requiring surgical amelioration. Where they disagree is really a matter of emphasis going to the plaintiff's capacity for suitable employment.

35        Dr Sillcock, occupational physician, examined the plaintiff on 29 September 2008. She was of the opinion that the plaintiff was not fit for his pre-injury employment, but was fit for alternative suitable employment which would enable him to avoid anything that was physically very demanding. She considered that he should not lift in excess of 15 kilograms nor undertake work involving prolonged or repetitive bending. She believed that he could work on a full-time basis provided he was doing suitable employment.[23]

[23]           PCB 33

36        Mr O'Loughlin, orthopaedic surgeon, examined the plaintiff on 17 February 2009. He was of the opinion that the plaintiff's background limited him to physical work. He said that the plaintiff was limited in being able to carry out physical work and should not undertake employment which involves bending and heavy lifting.[24]

[24]           PCB 39

37        Mr Flaim, surgeon, examined the plaintiff on 7 May 2009. Mr Flaim was provided with a report of CoWork Pty Ltd dated 6 March 2009 in which the author of the report proposed that the plaintiff could work as a forklift driver or medical or pharmacy courier or as a retail sales assistant. Mr Flaim was of the opinion that the plaintiff could not work as a forklift driver, but could work as a medical or pharmacy courier if it involved lifting very light weight materials and driving short distances, and if that were the case then he could work at a maximum six hours per day on alternate days, that is, a total of 18 hours per week.

38        Mr Flaim was of the opinion that the plaintiff could work as a retail sales assistant on a part-time basis working similar hours to that of a medical or pharmacy courier. However, he noted the plaintiff's problems with literacy and lack of training as an impediment to being able to do that.

39        In conclusion, Mr Flaim chose to cast the opinions he expressed concerning the plaintiff's capacity for employment as possibilities which were theoretical rather than practical, and in doing so he took into account not only the symptoms arising from the plaintiff's lower back injury, but also from his background and his educational level.[25]

[25]           PCB 63

40        Ms Wyatt, occupational physician, undertook a worksite assessment on 2 October 2006. She considered that what she was shown suggested that the work tasks were not physically demanding, permitting the plaintiff to change his posture intermittently. She recommended a graduated return to work on full-time hours.

41        However, it was conceded by Mr Gourlay that the plaintiff's return to work was flawed, in that he was required to undertake work which is entirely inappropriate for him.

42        Dr Wyatt examined the plaintiff on 13 October 2006, 1 August 2008 and 4 February 2009. On the last occasion Dr Wyatt examined the plaintiff she obtained a history from him that he was only suffering from soreness in his lower back which she did not consider constituted a major problem from a medical perspective. She obtained a history from him of his psycho-social problems, which led her to conclude that the plaintiff’s lower back problems were a relatively small part of the reason for him remaining off work.

43        Dr Wyatt appears to place complete reliance on the description she obtained from the plaintiff that he had only back soreness, which led her to conclude that he was fit to do a broader range of duties. She was ultimately of the opinion that the plaintiff could undertake work as a courier, and that he had a partial incapacity which he considered would be likely to continue indefinitely. She considered that it was wise for him to avoid manual handling with a lot of constant work in an awkward position.[26]

[26]           DCB 19-20

44        Dr Wyatt was forwarded the report of CoWork which led her to conclude that the plaintiff had the physical capacity to perform work as a forklift driver, retail sales assistant, spare parts interpreter and courier driver.[27]

[27]           DCB 21

45        Mr Marshall, surgeon, examined the plaintiff on 22 July 2008. On the last occasion Mr Marshall examined the plaintiff he found him to be quite grossly impaired by both physical and psychological problems which he considered would persist for the indefinite foreseeable future. He considered his prognosis was very poor.

46        Although Mr Marshall combined both the physical and psychological problems which he perceived the plaintiff to have, in expressing that opinion he was then asked some specific questions, which he chose to answer in the following way:

[28]           DCB 35

"6	He is certainly incapacitated for employment, and I believe the compensable injury certainly has played a significant part in his problems.
7	His incapacity seems likely to persist for the foreseeable future.
8	The only suitable employment he might be able to cope with is purely sedentary work (see above)."[28]

47        The compensable injury referred to by Mr Marshall appears to be the injury to the plaintiff’s lower back. Mr Marshall took a reasonable history from the plaintiff on the first occasion he examined him,[29] all of which relates the occurrence of the injury to his lower back. The only reference to any psychological problem was a passing reference to being on anti-depressant medication, although in the history Mr Marshall took on the second occasion he examined the plaintiff he referred to a psychological assessment and a report from Southern Health Psychiatric Unit.

[29]           DCB 30

48        Mr Moore submitted that the reference to compensable injury can only be interpreted as a reference to the injury to the plaintiff’s lower back, and therefore Mr Marshall, when he answered Questions 6, 7 and 8, was offering that opinion based upon the conclusions he reached regarding the nature and extent of the plaintiff’s lower back injury.

49        I prefer the submission of Mr Moore primarily because the structure of Mr Marshall's reports seem to ultimately be directed to answering questions which required answers of him relevant to the consequences of his lower back injury only.

Serious Injury

50        I propose to deal with the question whether the plaintiff can satisfy the statutory test for loss of earning capacity before turning to the question whether he can satisfy the statutory test for pain and suffering.

51        This application raises no question of the occurrence of a compensable injury nor that the plaintiff’s lower back injury has resulted in an impairment of the function of his lower back which is permanent.

52        Mr Gourlay based his submissions on the plaintiff not being able to satisfy me that he met the relevant statutory tests.

53        Despite my initial misgivings about the nature and extent of the plaintiff's evidence, I am satisfied that on the basis of the testing undertaken by Dr Hodgson and the evidence of Dr O'Toole, that the plaintiff is a simple young man who has endured a number of serious psycho-social problems in the past.

54        After reading the plaintiff's affidavits,[30] the affidavit of his mother,[31] and reviewing his oral evidence, I have reached the conclusion that the plaintiff continues to suffer from pain in his lower back which is aggravated by modest activities such as moving the wrong way.[32]

[30]           PCB 10-18

[31]           PCB 18a-18e

[32]           Transcript 49

55        I accept the plaintiff’s evidence that when he suffers an aggravation of that kind, that he has increased pain in his lower back and pain in his legs requiring him to take medication and to lie down until the increased pain he experiences has settled down.[33]

[33]           Transcript 48-50

56        I am fortified in accepting the plaintiff's evidence because it is consistent with the opinions of all of the examining medical practitioners, save perhaps for Dr Sillcock and Dr Wyatt, whose opinions I do not accept for the reasons outlined below.

57        I was particularly impressed by the evidence of Dr O'Toole who I considered gave his evidence in a well considered and well balanced way. Mr Gourlay submitted that Dr O'Toole was biased and was something of an advocate for the plaintiff.[34] I reject that submission.

[34]           Transcript 108

58        Essentially, Dr O'Toole was of the opinion that the plaintiff has ongoing pain which he described as not being a huge problem to him, but it is when he tries to engage in physical activity that it becomes a problem. Furthermore, his opinion that the plaintiff's backbone is his skill and that it is gone is an accurate summary of the dramatic impact which the plaintiff’s lower back injury has had upon him.

59        Dr O'Toole did not consider that any of the jobs referred to by CoWork were suitable for the plaintiff.[35]

[35]           Transcript 66-74

60        Mr Marshall would appear to agree with Dr O'Toole, but to varying degrees the other examining medical practitioners expressed opinions that the plaintiff is fit for suitable work.

61        Mr Flaim’s opinion is consistent with the opinion of Dr O'Toole and Mr Marshall, although he considered that the plaintiff was theoretically fit for 18 hours of work per week as a medical or pharmacy courier conditional upon it being limited to lifting very lightweight materials and driving short distances, and as a retail sales assistant for the same limited time subject to the plaintiff’s problems with literacy and lack of training.

62        Mr O'Loughlin’s opinion is only marginally of assistance in determining whether the plaintiff is capable of suitable employment or not because he does not venture an opinion beyond saying that the plaintiff should not undertake employment which involves bending and heavy lifting.

63        Dr Wyatt based his opinion upon the plaintiff only having soreness in his lower back. I do not accept that to be the case. For whatever reason, I find that the history she obtained by Dr Wyatt is grossly inaccurate, especially when compared with the histories obtained by Dr O'Toole, Mr O'Loughlin and Mr Marshall. Even if the plaintiff gave Dr Wyatt that history, it cannot be of any assistance to the defendant because if the history is wrong, and Dr Wyatt was misled by it, then the opinion expressed upon that inaccurate history must therefore be flawed.

64        Whilst Dr Sillcock accepted that the plaintiff had suffered a grave injury, she makes a leap from the physical examination which revealed that the plaintiff had normal reflexes, sensation and power in his legs in the setting of what she described as a large prolapse resulting in a cauda equine syndrome; that his pain, restriction, disability and incapacity were derived wholly from his physical injury, to being of the opinion that he was fit for full-time work in suitable employment.

65        Dr Sillcock did not disclose her pathway of reasoning. In order for me to rely upon her opinion relevant to the plaintiff's capacity for suitable employment, there must be some explanation which led her to reach that conclusion.

66        Mr Gourlay submitted that the plaintiff is able to engage in levels of activity greater than described by the plaintiff and by Dr O'Toole. I do not accept that submission. The fact that the plaintiff attempted to play indoor cricket and is able to do some work on his car is a bit like saying that one swallow makes a summer. He may have been capable of playing a one-hour game of indoor cricket, and may be capable of doing some work on his car,[36] but that needs to be equated to not just being capable of some tasks consistent with suitable employment, but being actually able to do a job.

[36]           Transcript 29-30

67        Mr Gourlay also submitted that the plaintiff had psycho-social problems before he suffered the injury to his lower back and that those problems were likely to continue, and indeed, did continue, given his admissions to hospital for treatment for overdoses and the general psychiatric care.

68        Mr Gourlay relied upon the evidence given by Dr O'Toole, that given the plaintiff's background, that his future was bleak or would be in terms of his capacity for employment and his motivation to obtain it. Dr O'Toole was of the opinion that the plaintiff's future was always going to be bleak, but that it was compounded greatly by the onset of his lower back injury.[37]

[37]           Transcript 76-77

69        Neither Mr Moore nor Mr Gourlay quarrelled with the common law position that a trial judge hearing an application for serious injury must take the plaintiff as he finds the plaintiff.

70        In the case of the plaintiff, he is a simple man with a very limited education. He has very poor verbal skills. He has little or no skill in any form of employment save for physical work. The medical practitioners who obtained a history of the plaintiff’s psycho-social problems appear to have been impressed by the nature of those problems as being a considerable impediment to the plaintiff being able to return to suitable employment given the onset of his lower back injury.

71        Although the plaintiff's future might have been one of intermittent employment, the fact remains that he obtained employment with the defendant as a trade's assistant and was doing that work when he suffered injury. The plaintiff was probably always going to have a poor capacity to obtain and retain employment, however, the lower back injury effectively removed what residual capacity for employment he had, enabling him to obtain and retain employment.

72        It is abundantly clear to me that the plaintiff is not fit for that work or even moderate to light factory work. The best he might be capable of doing is very light work on a part-time basis, but then what weighs against him is whether he can undertake suitable employment given his pre-existing psycho-social problems and the high probability that the plaintiff is a poor re-training prospect.

73        The plaintiff did attempt to return to some work through the intervention of his mother. The attempt failed. The plaintiff's mother refers to the plaintiff attempting work with "Oscan", "No Fuss Events" and "Bull’s Roof Tiling". The tasks he attempted were physical and beyond the plaintiff's residual capacity to undertake suitable employment.

74        I return to the evidence of Dr O'Toole which, as I have already said, I found to be compelling. It is evidence which I prefer over and above that of the other medical practitioners. Dr O'Toole described the plaintiff as effectively being incapable of work.

75        Therefore, I find that the plaintiff suffered a severe injury to his lumbar spine which has dramatically reduced his capacity to work by precluding him from being able to return to physical work permanently, and because of the psycho- social problems which the plaintiff has endured and his poor educational and poor vocational history and his poor prospects of being re-trained, that he is effectively unfit for suitable employment .

76        Further, I find that the consequences for the plaintiff in terms of loss of earning capacity warrant the description at the least very considerable and I have reached that conclusion by comparison with other cases in the range of possible impairments or losses of a body function, which may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.

77        It follows that the plaintiff does not have to separately prove that the consequences also meet the statutory test for pain and suffering.

Conclusion

78 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 Act to recover damages for pain and suffering and loss of earning capacity arising out of his employment with the defendant.

79        After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.

- - -