D'Argaville v M J and T G Gorman (t/a Trademark Roofing)
[2015] VCC 1654
•31 August 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-02274
| MICHAEL D’ARGAVILLE | Plaintiff |
| v | |
| M J & T G GORMAN (trading as TRADEMARK ROOFING) | First Defendant |
| And | |
| WORKSAFE VICTORIA | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 August 2015 | |
DATE OF | 31 August 2015 (Revised) | |
CASE MAY BE CITED AS: | D’Argaville v M J and T G Gorman (t/a Trademark Roofing) & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1654 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to right leg and low back
Legislation Cited: Accident Compensation Act 1986, s134AB
Cases Cited:Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230; Acir v Frosster Pty Ltd [2009] VSC 454; Victorian Stevedoring Pty Ltd v Farlow (1963) VR 597
Judgment: Leave for pain and suffering damages conceded. Leave granted for pecuniary loss damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Slater & Gordon |
| For the Defendants | Mr WR Middleton QC with Ms S Gold | Russell Kennedy |
HIS HONOUR:
1 On 23 August 2010, a young man was working with a roofing company when a prefabricated steel frame wall was knocked by a forklift. It fell on him as he was kneeling down. It has been variously described as weighing between one and three tonnes. That worker was Mr Michael D’Argaville, who had then just turned 25 years of age. He sustained a number of injuries, in particular, crushing forces impacted on his right side in the thigh, hip and low back areas. His legs were pinned just below the groin. Through the intervention of others:
“… somehow the wall was lifted a bit and someone helped to pull him out.”[1]
[1]Plaintiff’s Court Book (“PCB”) 27
2 Leave is sought with respect to both a right leg injury and a low back injury. Pain and suffering consequences amounting to “serious injury” have been conceded with respect to the leg. The only issue for the Court is whether a permanent loss of earning capacity of 40 per cent or more has been proved.
3 The plaintiff is a well motivated man who has returned to work of different types but not of the kind he is qualified for. Being only 25 at the time, the methodology involving the three-year pre and post analysis is not required in reaching a decision on earning capacity loss.[2]
[2]Accident Compensation Act 1986 (“the Act”), s134AB(38)(e)(i)
4 The statute and appellate authority are silent on how the Court approaches the question. The parties agreed that the Court is in a sense “at large” how it goes about this task. As I understand it, that really amounts to saying that it is the “broad brush” common law approach to future loss of earning capacity that is involved which juries and practitioners have followed for generations.
5 It is informative to recite some of the employment background relevant to understanding a loss of earning capacity. The plaintiff was only educated to Year 10. He followed in his father’s footsteps and became a refrigeration and air-conditioning mechanic. He did a four-year apprenticeship full time with firms in Melbourne and then Darwin after he decided to go to the Northern Territory. There is some dispute about when he formally received his trade certificate. I am satisfied on the evidence he was fully qualified by 2006 although the paperwork followed later.
6 He worked for several months as a qualified tradesman back in Melbourne up to just before Christmas 2006. As with many young people, having achieved a qualification that took four years to obtain, he tried his hand at a number of other jobs, but I accept his evidence he was always going to fall back on the vocation he had become qualified in.[3]
[3]Transcript (“T”) 40 and 44
7 He registered his own business as a contract concreter for a while, getting work from an uncle. He tried fencing work, then shed building. Unfortunately, mixing with “the wrong crowd” led to a drug problem for about two years or so. He also lost his licence due to alcohol abuse.[4] To his credit, he sorted his life out by going away in 2006 with his mother for some months and avoiding these mates. His aim was to get back to his trade as the other jobs he had tried proved to be “not very appealing”.[5]
[4]T41-44
[5]T77-78
8 Given the contacts he and his family had in the trade, on the probabilities I accept he would have started working his trade some time around late 2010. Through his own contacts, he took the first job that presented itself and that was as a roof plumber with the first defendant. Only one week into that job the steel wall fell on him so the aim of returning to refrigeration and air-conditioning mechanic work was never reached.
9 I had the advantage of hearing and observing the plaintiff during a lengthy cross-examination over two days by Senior Counsel. The plaintiff was a credible witness. He was unsophisticated and did not have a great memory. He made a number of candid admissions. These included about how he has improved over time, the orthotic given for his leg injury also helped his back pain, sleep has got a lot better, he can do 40 hours or even more per week in his present job if the work was available and he can now cope with ladders.
10 I found there was no exaggeration of his problems. This is consistent with what doctors said at examination, even those reporting at the request of the defendants’ solicitors.[6]
[6]Defendants’ Court Book (“DCB”) 6, 39, 73; PCB 66,75, 87-88
11 I reject the defendants’ submission that the plaintiff was an unreliable witness. There were some inconsistencies between what was in affidavits, what was said at times in Court and what doctors had recorded. The plaintiff could not even really remember some of the doctors, let alone what he had said to them often years earlier. I had the benefit of seeing him cross-examined over two days and I found him an honest and reliable witness. I found the plaintiff had a very stoical attitude to his symptoms.
12 I accept what he said in his affidavits about pain and weakness in the legs still persisting and how he will “probably have big problems” with pain at the end of the day. Even though his current duties are not particularly heavy, after a week’s work this young man has to rest over the weekend.[7] At his age, that is a measure of considerable pain. It also leads me to the conclusion he is working at about his maximum capacity.
[7]T94-95
13 Since being injured, he has applied for a number of jobs that include forklift driving, motorcycle salesman, as well as warehouse jobs. He has experienced periods of unemployment. He has worked as a carpenter assistant as well as sorting and packing fruit for short periods. These jobs aggravated his leg and back symptoms.[8] He has only very basic education for a person whose first language is English, and no sales experience. I found he is a fairly basic ‘matter of fact’ man. On occasions, he did not understand a question that was quite straightforward. His presentation in Court was consistent with his evidence that manual type work is his preference, as he is best suited to working with his hands and tools. He lacked the articulation, ready comprehension and polish usually found in salesmen.
[8]PCB 32
14 His current casual job is installing shade cloth and he obtained it himself in April. Over the last three months or so, he has averaged about 30 hours a week, paid at $25 an hour. He is able to cope with it.[9] He frankly admitted he can do more hours if it is available, but it is at call, and weather dependent work, so it is a far cry from full hours, five days a week, week in, week out, in the heavy trade he is qualified for.
[9]PCB 33 and 101
15 Looked at realistically, I accept the plaintiff's evidence that he does not now have the capacity to be employed in his qualified trade as a result of his leg injury. He has a shortened leg that gives him pain but also weakness.[10] Walking is a problem for him even with the continual use of orthotics. His trade is very physically demanding. It involves a lot of climbing, crawling and working in confined spaces.[11] The defendants’ vocational assessor described his trade as being more than heavy and it falls “within the heavy/very heavy category”.[12] It requires him at times to be walking about on Colorbond type ridged roofing.[13] He has lost a certain confidence in his leg in regard to being on roofs. Prolonged standing and climbing aggravate his leg pain.[14]
[10]PCB 29
[11]PCB 33
[12]DCB 152
[13]T57
[14]PCB 34
16 In his present job, there is some use of ladders involved but it is, in my view, very different from the demands of his trade.[15] He works with at least one other worker. He is installing shade cloth basically on the frames of garden hothouses. He is not dealing with heavy air-conditioning and refrigeration equipment ducts and appliances. He is not in confined spaces or upon high roofing that commercial and domestic air-conditioning and refrigeration work at times entails.
[15]PCB 33 and T122
17 On all the evidence, I find his trade is now a thing of the past. He has lost the capacity to pursue it in the employment marketplace when the realities of the commercial world these days are taken into account.[16] I am satisfied, on the evidence, that at about this time five years ago, the plaintiff would have returned to his trade as soon as he or his father found a position in that field. There are a number of reasons for this, some of which are:
[16]See Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230 at paragraph [11] and Acir v Frosster Pty Ltd [2009] VSC 454 at paragraphs [186] and [188]
(a)he had completed a long apprenticeship and training and gained his qualification;
(b)he had tried his hand at a few other fields and not found them appealing;
(c)it was a familiar way to make a living and he well knew the lifestyle and demands of his trade as it was his father’s trade;
(d)his father had contacts in the industry which in this day and age are often the way to open employment doors. This case is just another example of jobs where virtually all of them were obtained by word of mouth; and
(e)by about August 2010, he had sorted out his personal life with respect to substance abuse, bad company and loss of driving licence.
18 I am satisfied the plaintiff has lost his capacity to work at this trade when the realities of the labour market are considered. He is a witness whose credit was unimpeached. After five years, he is the best judge of the capacity of his leg regarding what he can do and what he cannot do. Treatment has long finished. After three major operations, physiotherapy and provision of orthotics, he is left with no real options for improvement.[17] He can do no more than put orthotics in his footwear each morning, take Nurofen and Panadol at times, and stick to his regime of 30 to 60 minutes exercise routine two or three days a week. On the probabilities, his lost capacity to work in his trade will be with him for the foreseeable future.
[17]T45-47
19 There is a body of medical evidence which I accept that supports his own evidence that his trade is now beyond him as a result of the crush injury to his leg.[18] In addition to the leg symptoms, a consequence of the leg injury is symptomology in the back. I accept that he also has a back injury, but the leg injury itself leads to more problems in the back. Not surprisingly, this is due to the leg length differential.
[18]PCB 31 and 33
20 I have not heard from any doctors, so this case raises the usual problems in this jurisdiction of trying to understand often unexplained and brief comments in reports. The general practice involves a number of doctors. The notes are extremely brief but seem to confirm he was going away to the country with his mother in June 2010 to assist with getting away from bad company and a drug problem. He had his trade in mind but the note is so short the context is not clear about that.[19] The short reports from this practice record the weight of the steel wall and some other injuries suffered.[20] Retraining for other work was mentioned as early as 2011. Modified duties and retraining were clearly on the horizon in the general practitioner’s mind regarding a return to work in a 2012 report. The doctor was commenting in the context of the leg injury.[21]
[19]PCB 41
[20]PCB 43 and 44
[21]PCB 45 and 46
21 The last general practitioner report recorded that January 2013 was the last visit to the practice. Again, in the context of the leg injury alone, the general practitioner said:
“Unfortunately, Michael may never work in his past capacity but time may prove me wrong.”[22]
[22]PCB 50
22 His comment came in a context of some of the arduous tasks involved in that trade.[23] I accept that this family practice opinion from doctors who know the plaintiff well probably amounts to saying the plaintiff’s capacity for his trade is lost to him due to the leg impairment on its own.
[23]PCB 48
23 I reject the defendants’ submission that an adverse inference should be drawn from the absence of an up-to-date general practitioner’s report. The plaintiff does not go to a doctor for the sake of it. No treatment has been advised to him. He sensibly self manages and gets on with life, accepting the limitations from the leg impairment, both in relation to work and his recreational and outside life.
24 The treating orthopaedic surgeon, Mr D Byrne, only dealt with the leg. He described the leg injury operations involved, as well as the development of an infected hematoma needing “urgent” surgical intervention and a scrotum ulceration.[24] Clearly, the hardware inserted surgically was significant, and non-union of the bone required further attention.[25]
[24]PCB 51 and 52
[25]PCB 54
25 Eventually, good recovery and union were achieved “… from what was an otherwise very serious injury to both limbs”.[26] As to capacity, the surgeon said, in his last report of April 2012:
“I think the chance of his returning to his pre-injury duties is remote.”[27]
[26]PCB 55
[27]PCB 56
26 Mr Byrne does not anywhere specifically say that is a reference to the refrigeration and air-conditioning trade, but given the number of attendances on him by the plaintiff over several years and the references to work, I infer the surgeon would have well known the trade his patient was qualified in. More to the point, I accept the plaintiff's evidence when he said Mr Bryne told him he could do light duties and not do the refrigeration and air-conditioning mechanic work due to the leg.[28]
[28]T55-56
27
I draw no adverse inference from, and absence of, an up-to-date report from
Mr Byrne. He was there to treat and the plaintiff was not advised to return to him or anyone else for treatment.
28 As best I can understand the reports from the treating doctors who have seen him, the plaintiff no longer has the capacity to work in his trade due to the right leg injury. These treating doctors have had the opportunity to see and assess the patient over multiple visits and not just single medico-legal visits.
29 The physiotherapy report is now four years old and pre-dates the first operation. It does not assist much in assessing lost earning capacity now in August 2015.
30 Dealing with the medico-legal doctors, Dr Helen Sutcliffe, occupational physician, reported this month. As recent as that, she found obvious swelling and deformity of the right proximal thigh, as well as the left thigh. The power of the dorsiflexion and plantar flexion of the right foot was decreased.[29] She clearly stated he could not carry out his trade as a refrigeration mechanic and was only fit for light physical work. She then dealt with a number of other jobs suggested in a vocation assessment.[30] His incapacity from the right leg was not disentangled from the other injuries in her initial report.
[29]PCB 62
[30]PCB 64-65
31 She then clarified this in a supplementary report when her opinion was made clear.
“You enquire whether the leg injury alone results in Mr D’Argaville’s incapacity to perform air-conditioning and roof plumbing work. I believe that this is so and that the leg injury and persisting symptoms result in incapacity to undertake his previous occupation.”[31]
I accept that opinion.
[31]PCB 65a
32 Three doctors who examined the plaintiff for the defendants were relied on by the plaintiff. Mr M Dooley, orthopaedic surgeon, reported in April 2014 and accepted the “acute shortening” of the leg explained the low back pain.[32] Appropriate treatment was the exercise program, intermittent analgesia and “sensible modification of duty”.[33] That modification included work. He elaborated on this when he said this “sensible and genuine historian” could do light physical work, clerical duties, sales and as an inspector.[34]
[32]PCB 68
[33]PCB 68
[34]PCB 69
33 I accept Mr Dooley’s opinion in supporting the plaintiff's case that his capacity for his heavy trade is permanently lost. When one reads the entirety of the report, it is probable the impairment of the right leg has caused this permanent loss as opposed to any of the other injuries, as they are barely mentioned.
34 Mr G Davison, occupational physician, reported for the defendants in July 2015. He found the scoliosis of the lumbar spine “which was likely to be compensatory due to leg length discrepancy”.[35] He reported the main ongoing pain was the lower back, and self-managing was appropriate treatment.[36] He thought the plaintiff had returned to suitable work which was the shade cloth hothouse work.[37] He could not return to pre-injury duties.[38] Mr Davison seemed to put this comment in the context of the back injury and the leg injury without disentangling them as I read the report.
[35]PCB 75
[36]PCB 77
[37]PCB 73
[38]PCB 78
35 Associate Professor B Love, orthopaedic surgeon, also reported for the defendants in July 2015 and he seemed to find a back injury that was now more serious than the leg injury. He did not distinguish between the two when he commented on work capacity. He said the pain was organic and further treatment was needed for the back.
36 Questions were directed to him by the defendants’ solicitors regarding the alleged injury and work, but it seems the back and leg were just put together.[39] The surgeon thought the present employment was suitable and all he noted was that it was “fitting of shade cloths”.[40] The report is not easy to follow and largely unhelpful as it comments generally rather than specifically on the two injuries he accepted had been suffered when the wall fell. He reported the injuries “in combination” made his current job “suitable employment”.[41]
[39]PCB 91
[40]PCB 86
[41]PCB 89-91
37 The three doctors the defendants relied on start with Mr O Deacon, orthopaedic surgeon, who reported in 2012. His report contains a number of inaccuracies. He said the plaintiff completed Year 10 in Darwin. He described the plaintiff as a refrigeration mechanic/process worker. Having heard the plaintiff and not Mr Deacon, I do not accept the plaintiff would have related such basic facts incorrectly.[42] There were matters in cross-examination read to him from Mr Deacon’s report that the plaintiff did not agree with. Discrepancies in some of the matters Mr Deacon recorded do not, in my opinion, reflect badly on the plaintiff’s credit.
[42]DCB 4-5
38 Nevertheless, Mr Deacon found him to be a “worker without any overstatement”.[43] As to work capacity, Mr Deacon did not even mention the back, so with respect to the capacity for suitable employment, I take that as being due to the leg alone. He thought the plaintiff could do warehouse management and forklift driving.[44] Having heard the plaintiff, I do not accept he is a realistic candidate for any management position. I will deal with forklift driving later, but he does not have that capacity either.
[43]DCB 6
[44]DCB 8
39 Dr A Sillcock, occupational physician, also reported in 2012, essentially about the leg injury. She made very few references to the back and only gave an opinion about the leg. She thought the plaintiff fit to return to his pre-injury duties and hours.[45] That opinion is against the weight of the medical evidence in this case. I do not accept it. She takes no detail about his pre-injury duties other than to say he is a “labourer”.[46] What the labouring duties were is nowhere recorded by Dr Sillcock. That is a very inadequate history of his work in my view.
[45]DCB 40
[46]DCB 37
40 Dr Silcock said the plaintiff walked with a normal gait. I do not accept that statement, having seen the plaintiff walk in Court on several occasions. I find her report incomplete and unpersuasive. I reject her statement that the various sales jobs are within his capacity, but in fairness, she was speaking from the purely physical viewpoint.
41 Dr D Elder, specialist in occupational and environmental medicine, seemed to report in 2013 in the context of an AMA percentage assessment and whether or not a back injury had been suffered. He did not really comment on earning capacity. He considered a soft tissue lumbar spine injury may have been suffered. The report does not assist on the issue before me.
42 Various vocational assessments and other documents pointed out other jobs the plaintiff was said to be capable of. On all the evidence, and in particular having heard the plaintiff in the witness box, in my opinion, they are not within his capacity. He does not have the skills in communication, presentation or rapid comprehension to be successful in sales. He has limited computer skills. He is a “hands-on” man. Many of the duties listed by the vocational assessors are also beyond his level of education and general skills for clerical type work.[47] The authors of these reports did not have a complete set of medical reports and other material to properly gauge his capacity.
[47]DCB 122-124 and 145-151
43 The plaintiff was motivated to go off and get a forklift licence in his attempts to get back to work outside his trade. In my opinion, forklift duties involved are beyond a man with a shortened leg, suffering as well the pain, weakness and loss of confidence in it that he endures.[48] The comment that the duties of a forklift driver vary depending on the size of the firm are apposite, with generic labouring tasks being required in addition to the driving.[49] Looked at realistically, the prospect of the plaintiff working as a forklift driver is little more than hypothetical. Hypothesis has no place in the common law assessment of loss and earning capacity that is required here.
[48]DCB 148
[49]DCB 149
44 It is worth noting that none of these agencies were able to place this well-motivated young man in a job. He has really found all his employment through his own contacts or those of his father. The evidence is he has applied for a number of jobs unsuccessfully in spite of Centrelink and WorkCover agencies being involved.
45 Argument about the applicability of s138AB(38)(g) of the Act in an assessment for a worker under 26 took place. My rejection of the suggestions regarding alternative “suitable employment” means I do not have to determine the issue. I should say, however, that my reading of sub-paragraphs (e), (f) and (g) of the subsection would lead me to the view that (g) probably does not apply in a common law assessment, but it is not necessary to discuss it further in view of my findings in this case.
46 I accept the evidence of the three employers as to mechanic wage rates.[50] I am satisfied that the plaintiff’s capacity in his trade can be measured as at least $80,000-$90,000 per annum and even up to $100,000 once the private use of a car is factored in.
[50]PCB 95, 96, 97
47 Given the evidence, I accept about how this young worker is at the end of a day and his need to “lay around” and rest on weekends, that he is probably working at close to his full capacity.[51] This residual capacity averages out over the last three months at only 30 hours per week. This amounts to about $750 per week or $39,000 per annum. However, it is casual work, on-call and it is weather dependent. In the climate in this city, I do not need evidence to tell me it is highly improbable he will get 52 weeks’ work. It is a new business he works for and it is not realistic to gauge earning capacity on the basis that he is likely to get more than about 30 hours or so a week on-call. He is only a casual employee in a very small concern. His capacity to do his present job is supported by a number of doctors. The plaintiff also readily admits he can do the work. This capacity mathematically means he has suffered a 40 per cent or more loss when looked at against the trade figures I have quoted.
[51]T128
48 I reject the defendants’ submission that the evidence of present earnings rates for mechanics are not relevant and do not apply to the plaintiff because he has not worked as a mechanic over the last five years. I have already indicated I find on the probabilities he would have returned to that trade in late 2010 but for the leg injury. Three employers have provided the helpful figures I have referred to. I find on the probabilities that by now the plaintiff would have been back working in his trade for the last five years.
49 The value of a car was put at between $12,000 and $16,000 and I do not accept the defendants’ submission that these employers’ figures about that are deficient and require accountancy evidence. These men employ people, they pay for the vehicles as part of the salary package they offer. I accept their evidence about the value of a car. They pay the bills at the end of the day.
50 Sensibly, for a worker injured at 25 years of age, a strictly mathematical approach is not the total story. The more “broad brush” common law approach to assessing impaired earning capacity is required. It is a task wider than simple arithmetic. For example it is over half a century now that courts have been permitted to include in an assessment of loss of earning capacity the risk of future unemployment and less remunerative employment.[52] That principle was enunciated in past times of virtually full employment in our community.
[52]Victorian Stevedoring Pty Ltd v Farlow (1963) VR 597
51 Many factors come into play in a proper assessment of earning capacity, particularly for a young worker in a common law context. Daily we are reminded in the media and by politicians of very large factory closures in our city affecting manual type trades and workers, as well as the difficulties for people to get and retain work without skills. We are also reminded of increasing casual and part-time employment now as opposed to the permanent jobs of the past.
52 The plaintiff’s present job is a perfect example. His employer gave evidence. There is not a hint or even suggestion that he is not a good worker and yet he only gets work when called in by the boss. If it is raining there is no work. Winter means less work. The capacity to do this work is a far cry from what his capacity as a fully qualified mechanic amounts to.
53 Air-conditioning and refrigeration work has an outdoor aspect on roofs and buildings, but again the Court does not need evidence of the ducts, refrigeration units, air-conditioning equipment that is all indoors in our homes and workplaces. A consistency of work that has nothing to do with weather is part of the capacity that the plaintiff has now lost. In this era of creature comforts, both at home and work, the refrigeration and air-conditioning industry is likely to have an optimistic future unlike a number of other manual trades. He has not only lost the capacity for regular work irrespective of weather, but he has lost the chance of more permanent employment.
54 These factors are all part of a proper approach to impairment of earning capacity outside the strict statutory guidelines that apply to workers 26 and over. Redundancies, closures, the risks of extended periods out of work are all unfortunately growing in our community, particularly for young people. Since losing his trade, he has already experienced periods of unemployment.
55 Taking all these factors into account on the arithmetical approach to the wages he could expect in his trade, I am satisfied he has lost 40 per cent or more of his earning capacity as a consequence of his leg impairment. If I am wrong on that, looking at the matter from an overall, broad-brush, common law assessment of loss of earning capacity, including the risks for him in the future, I am satisfied a 40 per cent loss or more has been proved as a consequence of the leg impairment. On both approaches, I find the loss is a permanent one.
56 A submission was made that the evidence failed to disentangle the leg and back symptoms. I do not agree. I have already referred to a number of pieces of evidence I accept from doctors that are directed solely to the leg impairment. There were some understandable differences at times as to emphasis, and what the plaintiff said was the particular pain causing him most trouble. This has to be considered in the context that symptoms from the crush injury to his leg add to and end up in the back area.
57 As he said:
“… my back ends up hurting more than my leg sometimes.”[53]
[53]T53
58 He explained how certain activities cause leg and back symptoms. Different emphasis comes at different times. He tried to explain why. I accept his evidence that a deal of the back pain is a consequence of the leg injury. He summed it up several times.
Q: “Is the problem in your back?---
A:Yes, it starts from a pinching in my leg and then goes up into the bottom lower back.
Q:So what is the problem when you drive? Is it your leg or your back?---
A:It’s both.” [54]
[54]T71
59 Later, he said:
“It’s hard to explain but I get, like, sharp nerve pinching down my leg and then it slowly goes into my back.”[55]
[55]T71
60 Again, in cross-examination, he tried to explain the concept:
“Well, my leg is to do with my back.”[56]
[56]T72
61 He was asked further and said:
“I’ll get a pinching in my leg and it just aggravates my back.”[57]
[57]T84
62 In my opinion, the evidence establishes the impairment of the leg on its own has meant the plaintiff has permanently lost the capacity to be a refrigeration and air-conditioning mechanic and that amounts to a loss of 40 per cent or more.
63 Leave to bring proceedings has been conceded in regard to the leg for pain and suffering damages and I grant leave with respect to pecuniary loss damages also. It is not necessary to address any further comments as to the second injury, namely the back, for which leave was also sought.
- - -
0
2
1