Devereaux v DP World Melbourne Limited
[2013] VCC 1810
•29 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-05698
| WAYNE DEVEREAUX | Plaintiff |
| v | |
| DP WORLD MELBOURNE LIMITED and POAGS PTY LTD | First-named Defendant Second-named Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 October 2013 | |
DATE OF JUDGMENT: | 29 October 2013 | |
CASE MAY BE CITED AS: | Devereaux v DP World Melbourne Limited & Anor | |
| MEDIUM NEUTRAL CITATION: [First revision 26 November 2013] | [2013] VCC 1810 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury to the spine
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Petkovski v Galletti [1994] 1 VR 436; Smorgon Steel Tube Mills Pty Ltd vMajkic [2008] VSCA 230
Judgment: Leave granted to the plaintiff to bring proceedings against the second defendant for economic loss and pain and suffering damages. Application against the first defendant dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Ms A MacTiernan | Zaparas Lawyers |
| For the First Defendant | Mr N Chamings | Thomsons Lawyers |
| For the Second Defendant | Ms M Tsikaris | Herbert Geer |
HIS HONOUR:
1 This Originating Motion involves two applications for serious injury leave pursuant to s134AB(16) of the Accident Compensation Act 1985 (“the Act”) against two employers. The first defendant (“D1”) employed the plaintiff on the waterfront as a guarantee stevedore, which meant he was guaranteed 35 hours per fortnight work.[1] The plaintiff relies on a back injury sustained on 18 February 2005 while handling steel chains (“the first injury”).[2]
[1]Plaintiff’s Court Book (“PCB”) 28
[2]PCB 29
2 The second defendant (“D2”) then really took over the plaintiff’s employment on the wharves and the plaintiff sustained an aggravation of his spinal condition on 21 March 2009 when jolted driving a truck (“the second injury”).[3]
[3]PCB 31 and Transcript (“T”) 10
3 Leave is sought to bring proceedings against both defendants for pecuniary loss and pain and suffering damages and both are paragraph (a) applications involving impairment of the function of the spine.
4 These two applications raise the issues referred to last year and the exercise required of the Court.[4] The task is described as one that requires:
[4]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
(i)identification of each injury;
(ii)delineation of the impairment consequences of each injury;
(iii)determination of whether the second injury qualified as a serious injury;
(iv)a before/after comparison between the plaintiff’s condition before the second injury and after the second injury to assess the additional impairment;
(v)judgment of whether each injury satisfies the serious injury test in its own right, as they cannot be combined.[5]
[5]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (supra) at paragraphs 30−35 and Petkovski v Galletti [1994] 1 VR 436
5 A single discrete issue remains with respect to each injury. Both defendants conceded a compensable injury was suffered, but issue was taken whether the consequences are “serious” with respect to each injury.[6]
[6]Transcript (“T”) 28−29
6 I note the recent repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading speech that accompanied the repeal. Nevertheless, clear, proper and adequate reasons are required. It has been said often that a serious injury application involves a substantial amount of “value judgment” which does not, of itself, admit detailed reasoning that is explicit in certain cases.
7 The plaintiff is aged sixty years and failed Year 9 at school. After working for some thirty three years with Australia Post, previously the PMG, he commenced working on the waterfront as a casual. He was able to carry out heavy work that is described in his affidavits, and this is not contested.[7] The first injury saw him attend initially at the Sandringham Hospital and then at his usual general practitioner, Dr Gaddie, in Hampton. He was off work for a short while and returned on light duties in April 2005.[8] Referrals took place for some specialist advice, but as time went on, he was given wider duties and returned to normal duties in about April 2007, although continuing to have intermittent back pain. He was really able to continue working normal duties with assistance and medication up until the time the second injury occurred in March 2009.[9]
[7]PCB 28−29
[8]PCB 29
[9]PCB 30, T38 and 40
8 The medical evidence indicates that there was very little treatment over at least a couple of years prior to the March 2009 incident, although the plaintiff gave evidence that he was taking some medication in that period. The clinical notes refer to several repeat prescriptions[10] but his back is not even referred to in those notes from November 2006 up to the second injury, save for one reference.[11]
[10]D1 Court Book (“D1CB”) 168-169
[11]D1CB 167-173
9 The plaintiff’s earnings do not indicate any significant impact on his earning capacity in the period between the first injury and the second injury except for 2005-2006.[12] Dr Gaddie, general practitioner, reported in February 2006 that, while the prognosis was guarded, the plaintiff’s back pain was likely to settle with time.[13] It is worth noting that the same general practitioner records in May 2012 that −
“His original injury in 2005 was managed to the point he could return to full duties. His subsequent injury at work in 2009 was clearly a turning point in his decline from which he has not recovered to the point of returning to his former duties. On reflection, this latter injury is the prominent injury, as although he was known to have both degenerative spinal and disc pathology, this incident altered his ability to function from full duties to restricted duties.”[14]
[12]Exhibit D1.4
[13]PCB 48
[14]PCB 58
10 Also, the radiology prior to the second injury involved a single x-ray of February 2005 which, apart from noting some minimal facet joint degeneration, makes no other comment indicative of any major injury.[15] Subsequent radiology, while being of the more sophisticated MRI variety, indicates pathology at the L3-L4 and L4-L5 levels.[16]
[15]PCB 78.4
[16]PCB 79−80
11 The plaintiff was an unsophisticated witness but essentially reliable. His oral evidence was generally consistent with his affidavits. Credit was not seriously impacted on by cross-examination nor by the video evidence.[17] The film showed light activities he could carry out around the garden and home. While he could bend over freely, there was no heavy activity or strenuous tasks that were shown. Nor did the activity continue for very long, as it must in any workplace environment, whether it be light duties or otherwise.
[17]Exhibits D1.1 and D1.2
12 The plaintiff described in the witness box never being free of pain since the 2005 injury.[18] He had some improvement by 8 March 2005 and he returned to work on light duties.[19] He was then cleared for full duties.[20] He had a few days off work for back pain in 2007 and some weeks off because of a hernia problem. He worked normal duties up until the time of the second injury.[21] I find that he was able to put up with some pain and essentially perform his normal duties after the initial period of several months following the first injury.[22] He agreed the 2009 incident hurt his back again or made it worse.[23]
[18]PCB 30, T33
[19]T36−37
[20]T38
[21]PCB 30, T40
[22]T38, 40, 42-43
[23]T42
13 I accept that the first injury involved some probable disc damage and other soft-tissue damage.[24] I find that his pain continued in between the first injury and the aggravation involved in the second injury;[25] however, I do not accept the consequences of the impairment of body function suffered as a result of the first injury can fairly be described as very considerable with respect to his earning capacity or enjoyment of daily life.
[24]PCB 47−48
[25]PCB 57
14 I have already mentioned some of the general practitioner’s comments but his language is in different terms after the second injury was suffered. The pain had become chronic.[26] When last reporting about the current situation, he described that the plaintiff has tried a number of modalities, including medication, radio-frequency ablation and physiotherapy with a Kieser training emphasis related to a specific gymnasium program. The plaintiff had failed to improve from a pain management point of view and his pain and predicament had impacted on his mental health such that he needed ongoing physiotherapy and medication, as well as counselling.[27]
[26]PCB 58
[27]PCB 58.2
15 This local doctor, who perhaps knows the plaintiff best of all, indicated that this man had gone from being one who had returned to full duties after the first injury to one who was now unfit for his previous duties and likely to be permanently so.[28]
[28]PCB 58.2
16 Looking at the other treaters involved in this man’s management with respect to the first injury, Mr John Humphray, physiotherapist, said on 7 March 2005, that the plaintiff had made good gains but thought he needed a further week off work at that early stage.[29]
[29]PCB 78.3
17 Mr Michael Pullar, neurosurgeon, saw him in May 2005 about a disc injury and he felt he was recovering at that stage and expected continued improvement. He advised gradual increase in hours and thought he would probably return to normal duties over time. Time would tell whether a complete resolution would occur.[30]
[30]PCB 78.2
18 Dr R Freillich, neurologist, reported in February 2006 on persistent pain and sending him for an MRI scan of the lumbosacral spine. That MRI scan never seems to have been taken. He thought it was a disc problem that was being investigated and required further investigation. Nothing further is available from him and it does not appear that those further investigations took place.[31]
[31]PCB 78.3a
19 The group of practitioners who treated the plaintiff for the first injury do not speak of serious consequences that are ongoing, although there is a certain caution about prognosis. A return to normal duties is mentioned and that is what in fact occurred. This body of evidence does not support a finding of any consequences that could be said to be very considerable and permanent. The plaintiff has not proved a serious injury with respect to the first compensable injury in 2005 on the evidence of those who treated him prior to the second injury.
20 I will deal briefly with the large number of medical witnesses engaged by the parties. It should be said that these proceedings involve the usual difficulties of drawing conclusions and understanding medical opinions contained in medical reports without hearing from any of these doctors in the witness box. There are some seventeen medical witnesses in total, without the vocational assessors, across the three Court Books, and none were required to explain or expand their opinions. Most of them do not address the specific task of trying to isolate the first injury and the second injury and just give something of an aggregation opinion which is of little or no assistance.
21 The first practitioner who treated the plaintiff after the second injury, other than the general practitioner, was Brett Walton, physiotherapist. He saw him on 26 March 2009 and recorded the past history of disc bulge. He felt a return to work would involve light duties only, and it was important to avoid lifting, bending and prolonged sitting. Already, there was the spectre of something more limiting by way of consequences than the overall picture following the first injury.[32]
[32]PCB 78.1
22 Dr D Vivian, pain management physician, was next in the chronological line of treaters and saw the plaintiff in October 2010. He took a detailed history, and while the plaintiff indicated a desire to return to normal duties, he also felt it was beyond him.[33] Dr Vivian diagnosed mechanical back pain with a probable disc prolapse and nerve-root injury. This “no nonsense man”[34] was doing his best to maintain his position in the workforce. He had been injured in 2005 and “this was subsequently aggravated, probably permanently, in 2008 by the second incident”. The parties agreed that 2008 should read 2009.[35]
[33]PCB 60
[34]PCB 61
[35]PCB 62
23 He thought the effects of the first injury were still persisting.[36] He does not really add anything to the consequences flowing from the first injury, absent the aggravation by the second injury.
[36]PCB 63
24 Professor R Bittar, neurosurgeon and spinal surgeon, next treated the plaintiff in January 2011. He diagnosed aggravation of pre-existing degeneration in 2005 and 2009. Both were significant contributing factors to his current condition.[37]
[37]PCB 74
25 The prognosis was poor and he was permanently unfit for his old job. “In theory, he did have fitness for alternative duties ...” but I accept the reality for a sixty‑year-old man with his very limited education and experience means that he is probably unemployable.[38]
[38]PCB 75
26 He records that after the first injury, he saw the plaintiff:
“... make a substantial recovery however. His condition was substantially and permanently aggravated by the injury in March 2009. On this basis, the second injury (March 2009), could be reasonably considered to be playing a more substantial role than the first (February 2005), in his current condition.”[39]
[39]PCB 75.2
27 I read Professor Bittar’s reports as not really supporting any serious consequences flowing from 2005 independent of the substantial aggravation suffered in 2009. I accept that as the probable situation.
28 Dr R Sullivan, pain specialist, is the last of the treaters and first saw the plaintiff in September 2012. He diagnosed chronic back pain and chronic sciatica, and the second injury “... is a significant aggravation of his pain and thereby his associated disability”.[40] The current condition meant he could not do the stevedore work and “he could possibly undertake some very sedentary work that required effectively, no lifting or bending and did not require him to sit for an extended period of time or stand for extended periods of time”.[41]
[40]PCB 77
[41]PCB 78
29 I accept these limits as reflecting the plaintiff’s capacity and that they probably mean, for this man, that he is permanently out of the workforce for any suitable employment.[42]
[42]Section 5 of the Act
30 In a recent report, he thought both injuries still contributed to the plaintiff’s current condition and probably equally. Required to look at 2005, separate from 2009, he does, in my opinion, not support a view that the first injury led to consequences that were serious without the second injury. It is “… the combined sum of these injuries that has led to his current clinical situation … .”[43]
[43]PCB 78.1B
31 Turning to the medico-legal doctors, Mr J Hunt, orthopaedic surgeon, saw the plaintiff once in May 2012. He diagnosed a spinal injury occurring in 2005 and aggravated in 2009.[44] He thought there were real limits on the plaintiff’s earning capacity, as well as life outside work.[45] Regarding earning capacity, he indicated:
“It is difficult to envisage that he would be able to return to work with ongoing disabling lower back and right leg pain symptoms, Mr Devereaux has and I believe that he will continue to remain significantly financially disadvantaged into the foreseeable future.”[46]
[44]PCB 88
[45]PCB 88-90
[46]PCB 90
32 I accept this evidence as supporting the view that since the second injury, the plaintiff is effectively incapable of any suitable employment. Looking at the before/after picture regarding the second injury, he notes the plaintiff’s return to his usual work activities after the first injury, albeit with pain continuing.[47] This doctor does not support consequences from the first injury on its own that would satisfy the test of very considerable.
[47]PCB 84
33 Dr C Thomas, rehabilitation consultant, saw the plaintiff in October 2012 and he diagnosed two organic injuries to his back by way of symptomatic spondylosis. He states:
“He has had two injuries to his back. Both were associated with disability. The first one he was able to get back to work. The second one he has not been able to do so. He has symptomatic spondylosis to his lumbar spine.”[48]
[48]PCB 94
34 He thought the restrictions were permanent on the plaintiff’s capacity for work and for an unskilled man they are very wide restrictions indeed.[49] The limits he puts on him as a potential truck driver are so extensive, I find that when one looks realistically at the open commercial world, he has no capacity at all to carry out any truck driving job.[50] I accept this report supports a view of a very considerable loss of earning capacity following the 2009 aggravation but that capacity had not been lost before that second incident.
[49]PCB 95
[50]Smorgon Steel Tube Mills Pty Ltd v Majkic [2008[ VSCA 230 at paragraph 11
35 Dr D Middleton, occupational health consultant, also saw the plaintiff in October 2012. He also diagnosed aggravation of degenerative disc disease, particularly at L4-5, occurring in 2005, together with further structural damage in 2009.[51] He considered earning capacity was severely restricted but as I read it, that is on the aggregation of consequences flowing from the first and second injuries.[52]
[51]PCB 113
[52]PCB 114
36 Mr Chris Haw, orthopaedic surgeon, saw the plaintiff in 2012 and then again in August 2013. He diagnosed an L4-5 disc injury with possible degenerative facet joint symptomology. He stated that:
“It is my opinion that his problems are attributable to an acute exacerbation of lumbar spondylosis as a result of an incident that occurred at his work, on or around 18 February 2005.” [53]
[53]PCB 119.2
37 He thought it was unrealistic to expect this man to be able to get back into the workforce.
38 This opinion is probably the most specific one that supports the argument that the plaintiff’s impaired earning capacity arose from the first injury standing on its own.
39 He then goes on to state that he had not received some of the radiology initially and had a question addressed to him in relation to the contribution of the first injury and the second injury. He thought that both were significant contributing factors but thought the initial episode in 2005 was the most significant and probably caused the original disc disruption. He repeated that there was no realistic capacity of working in any suitable employment.[54]
[54]PCB 119.4
40 While Mr Haw gives support to the plaintiff’s incapacity for work being caused by the 2005 injury alone, he relates that incapacity to both contributions.
41 When one looks at the plaintiff’s medical evidence overall, and fettered by not hearing from any of these doctors, I find that the first injury alone would not have in all probability led to the consequence I accept of a total loss of earning capacity for suitable employment. Mr Haw’s opinion goes beyond that of the other doctors in regard to the contribution from the first injury but I am not prepared to accept it in the face of an overwhelming view to the contrary.
42 The plaintiff’s material ended with the vocational assessment evidence from Ms Leonie Schneider. She concluded in 2012 that effectively the plaintiff had no capacity for unskilled work and I accept that opinion.[55] Unfortunately her opinion does not assist in terms of the identification of the first injury and its singular consequences and then the second injury and its consequences.
[55]PCB 129
43 Before moving to the defendant’s evidence, I accept that the plaintiff has established an impairment of the function of the back in the first injury involving as it does a disc injury at L4-5. I accept further that he was able to return to full-time normal duties as a stevedore with some help from workmates, the assistance of medication and the endurance of some continuing pain.[56] He then suffered the second injury. The plaintiff has not discharged the onus to delineate any impairment consequences of the first injury that could be reasonably judged to be very considerable in terms of impaired earning capacity or loss of enjoyment of life.
[56]T40, 42-43 and 75
44 Dr D Barton, occupational physician, assessed the plaintiff in 2008, 2009 and 2010 for D1. His opinions now are quite out of date and of little if any assistance in judging the plaintiff now in October 2013.
45 He is alone in being critical of the plaintiff at examination and finding illness behaviour and functional overlay.[57] He is also alone in criticising those treating the plaintiff as giving poor advice and over-medicalising his problem.[58] He is alone in thinking the MRI scan radiology shows disc pathology of “questionable clinical significance”.[59] He does not describe how he could reasonably call the symptoms “mild” when one studies the list of symptoms he records.[60] He is alone when he says the prognosis for the plaintiff is very good.[61] He is alone in stating there no physical reason why the plaintiff could not do his pre‑injury duties and hours.[62]
[57]D1CB 22-23
[58]D1CB 24
[59]D1CB 30
[60]D1CB 28 and 30
[61]D1CB 32
[62]D1CB 35
46 I do not accept these out of date opinions as being of any assistance now. They are not clearly articulated and some of the reasoning cannot be easily followed. His views are outweighed by doctors on both sides in these proceedings.
47 Ms Lucy Hogan, injury management consultant, provides an opinion about work capacity in December 2009. It is now almost four years old and does not assist in judging the present consequences. He was still working on modified duties when her assessment was made. The cited reports she had were only two in number and are grossly inadequate to form any educated opinion about capacity.[63] One is from Dr Barton. She noted the plaintiff was cooperative. The report was written when a graduation of his return to work was still occurring and thus it is premature in that sense.[64]
[63]D1CB 131
[64]D1CB 136
48 The clinical notes of Dr Gaddie were tendered by D1 and record the first injury and the second injury.[65] There seems to be only one note referring to the back in the notes in the period between November 2006 and the second injury other than some repeat prescriptions for pain killers. The plaintiff gave the evidence of ongoing medication being required between the first injury and the second injury[66] but this is a period of almost two-and-a-half years in which a back complaint appears only once. These clinical notes support my finding that the plaintiff was not suffering any consequences that could be described as very considerable prior to the occurrence of the second injury with respect to his work or enjoyment of life.
[65]D1CB 167 and 188
[66]T40 and T42
49 The claim forms tendered in evidence do not assist on the relevant issues.[67]
[67]D2 Court Book (“D2CB”) 1-4
50 Mr P Kudelka, orthopaedic surgeon, saw the plaintiff in 2011 and 2012. He really accumulates the injuries in finding both were aggravations of degenerative changes in the lower spine.[68] He found a limited work capacity with no functional overlay or exaggeration by the plaintiff.[69]
[68]D2CB 13
[69]D2CB 13
51 His last report involved some more detailed answers but he found contributions to the plaintiff’s condition from both the first injury and the second injury.[70] The symptoms significantly affected his enjoyment of life and daily activities he thought. He could not be clearer in describing the plaintiff’s lost earning capacity:
“I believe the plaintiff has a permanent incapacity for all forms of remunerative employment for which his age, education and qualifications suit him.”[71]
[70]D2CB 7
[71]D2CB 6-7
52 I accept this opinion about total and permanent loss of earning capacity as reflecting the plaintiff’s current state; however, Mr Kudelka does not really assist in delineating the consequences of the first injury and the second injury independent of each other. He aggregates them.
53 Mr Ian Jones, orthopaedic surgeon, reported in October 2011 and notes the first and second injuries. He described the “initial injury” appearing to have been related to an L4-5 disc prolapse and:
“From the patient’s perspective this had recovered to 90 per cent of normal following time and conservative treatment up to approximately mid 2006.”[72]
[72]D2CB 19
54 He then noted the second injury which resulted in recurrence of back pain symptoms and left the plaintiff with his residual complaints and incapacity. He stated he got back to work after the first injury:
“ … but in a second incident … he has been permanently limited from undertaking his normal job and he is restricted to only suitable light work.”[73]
[73]D2CB 20
55 This surgeon stated that specifically the second injury had been a significant contributing factor to the aggravation of the L4-5 disc injury. He then aggregated the first and second somewhat when he said the “back injuries” have compromised his activity level and ability to undertake physical employment.[74] The limits he puts on the plaintiff I accept effectively put this man out of the workforce for suitable employment as defined.[75]
[74]D2CB 20
[75]D2CB 21 and Section 5 of the Act
56 Dr Steven Miller, occupational medical practitioner, saw the plaintiff in February 2006 and refers to a previous report of 14 October 2005.[76] The 2005 report does not appear in the court books and was not tendered. He diagnosed a disc injury and thought the plaintiff did not currently have a capacity to perform stevedoring. However, it was obviously early days, as he qualified his opinion by saying it was difficult to say what capacity would be retained and premature to make a definite statement. Firm comment could not be made about permanent disability at that stage.[77]
[76]D2CB 5
[77]D2CB 53
57 This report was three years prior to the second injury and it was too early to judge any permanent consequences of the first injury, so it of no assistance to the task now.
58 Dr M Bloom, occupational physician, saw the plaintiff in 2010 and found some non-organic signs but:
“ … he had no reason to doubt this man’s veracity.”[78]
[78]D2CB 59
59 Other than noting the first injury and rehabilitation back to working pre-injury duties before the exacerbation of the second injury, he does not assist on the consequences of these injuries looked at individually.[79] He did not think the plaintiff had a realistic capacity for pre-injury duties because of the chronic low-back pain but also other factors.[80] His opinion, which is consistent with a permanently impaired earning capacity is based on an accumulation of the consequences of the two injuries.
[79]D2CB 57-58
[80]D2CB 58
60 The final doctor for the defendant was Dr G Davison, consultant occupational physician, who saw the plaintiff earlier this year. He lists a number of reports that he had, which is clearly not a complete list of the material available at that time.[81] Nevertheless, he diagnosed L4-5 nerve root symptoms with chronic pain and thought the “sentinel event” was 2005. The 2009 incident then increased levels of pain and continues to make a contribution in his opinion.[82]
[81]D2CB 67a
[82]D2CB 67f
61 He considered the plaintiff incapable of pre-injury duties with restrictions on other work that involved limitations, in an unskilled job environment, that would effectively mean the plaintiff is not realistically fit for any suitable employment.[83]
[83]D2CB 67f-g
62 Again, he really gives another opinion supporting serious consequences regarding lost earning capacity that is really an aggregation of the two injuries.
63 As with the plaintiff’s medical evidence, looking at the material tendered by the defendant and not hearing from any of these doctors, the real consequences I find are those that flow from the second injury and as a result of the impairment consequences flowing from that aggravation. The plaintiff had been rendered unemployable in reality as a result of the aggravating second injury. The consequences of the first, on balance, are not made out as very considerable absent the second.
64 A number of return to work documents were tendered; however, these do not assist in determining how serious the consequences are with respect to either injury. It is the medical evidence together with the plaintiff’s evidence where the key to these applications is to be found.
65 A letter from D2 was tendered that indicated suitable duties were withdrawn effective 16 October 2010.[84] This was based on the plaintiff’s inability to work as a stevedore. The plaintiff described these suitable duties as something of a “made up” job[85], but it is clear that his incapacity saw the end of his employment on the waterfront after over ten years there with various employers. Effectively that letter has placed the plaintiff on the open employment market and I accept that at age sixty, having failed even Form 3 at school and having observed the real lack of sophistication of this man, he is permanently unemployable in suitable work.
[84]D2CB 73-74
[85]T61 and T65
66 Wage rates were tendered indicating the amount of earnings the plaintiff had achieved in years before 2005 and up to when he last worked. However, this is not a case in which the arithmetic determines the issues. I find that the plaintiff is effectively out of the workforce for any suitable employment as a result of the second injury and the consequences flowing from that. Accordingly, there is no need to go into any analysis of wage rates as I do not accept that he has any residual capacity when the medical restrictions placed on him by a large number of doctors are looked at in the context of the real commercial employment world.
67 In view of the matters I have described, the plaintiff has failed to discharge the onus of proving consequences from the first injury that could be fairly described as very considerable. He has discharged the onus with respect to the second injury regarding his lost earning capacity and I grant leave against D2 to bring proceedings for pecuniary loss damages. In accordance with practice, it follows I also grant leave to bring proceedings for pain and suffering damages.
68 I will hear the parties as to costs.
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