Elaine Holland v Divadeus Pty Ltd (WorkCover)

[2016] VMC 23

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE  F13874609

BETWEEN:

ELAINE HOLLAND   Plaintiff

-and-

DIVADEUS PTY LTD   Defendant

MAGISTRATE:  GINNANE

DATES HEARD:   6 & 10 OCTOBER 2016

DATE OF DECISION:   28 NOVEMBER 2016

CASE MAY BE CITED AS:  ELAINE HOLLAND v DIVADEUS PTY LTD

MEDIUM NEUTRAL CITATION:  [2016] VMC023

APPEARANCES:COUNSEL  SOLICITORS

For the Plaintiff   Mr L Allan  Slater & Gordon  

For the Defendant   Ms M Tsikaris  IDP lawyers

Catchwords: – Section 93 Accident Compensation Act 1985 – materially contributed - whether plaintiff has no incapacity for work - rejected claim – right wrist injury – alleged gradual process injury arising out of, or in the course of employment over the course of employment –recurrence, acceleration, exacerbation or deterioration to by work injury – effect of partial incapacity for work

Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 applied

Asioty v Canberra Abattoir Proprietary Limited (1989) 167 CLR 533 applied

Chelberg v Urban Maintenance Systems Pty Ltd [2011] VCC 973 applied

REASONS FOR DECISION

HIS HONOUR:

1. This proceeding is a relatively narrow in scope and was refined even more because of admissions made by the defendant at the conclusion of the first day of hearing. Through its counsel, the defendant has admitted liability for the injury the plaintiff sustained in its employ. It says, however, that its liability ceased when the plaintiff commenced like employment with a new employer (referred to in these reasons as ‘MICM’) either from 29 September 2014 (the date of her contract with MICM) or 1 October 2014 (her first shift with MICM). For the reasons that follow, the defence to the claim fails.
2. The plaintiff was born on 17 May 1958 in the United Kingdom and came to Australia in 1974. She is a mother to 5 children. One of her children, Tom testified. The plaintiff and her son shared a workplace on occasions. The plaintiff’s resume was tendered, and although there was some cross examination about it, any variations about the extent of it, was not probative of any matter I am required to decide.
3. The plaintiff commenced employment with the defendant (then known as “Makesafe Security”) on 30 September 2011. The hours she worked was the subject of some debate in evidence, but also the resolution of the matter is not important to the outcome of the proceeding. The plaintiff worked for the defendant across a number of residential apartment buildings (4 were identified) and in addition “floated” as it was characterised in the evidence between them and also the Box Hill TAFE. The dates are also unimportant.

Identifying the plaintiff’s duties

4. Part of the plaintiff’s employment duties with the defendant required her to clean out debris that would from time to time block the free flow of such rubbish from a central chute beneath the apartment complexes into large green commercial grade waste bins and then wheel the same up and out of the complex to be positioned on the sidewalk. She said the number of times this was required of her varied but it might be up to 3 times per week.
5. The building locations at which the plaintiff worked contained a number of  commercial grade refuse bins of the type described above and the plaintiff said they were often overfilled and also the wheels to which they were attached were not stable thereby making the manoeuvring of them up to the street and back to the basement more difficult.  Photographs were shown of the type of bins the plaintiff described.
6. The plaintiff said that she first experienced pain on 10 September 2013 in her right wrist and after this type of work with bins. She attended her general practitioner, Dr Law. She complained to him of pain in her right wrist. She was sent for x-ray and an ultrasound. Clinical records show that in September 2013 she was taking voltaren and told to wear a brace, which she said, she did. X-ray findings at the time did not disclose any abnormality. Also in September 2013 an ultrasound of the right wrist was performed.
7. On 27 January 2014 the plaintiff reported injury to her employer and she ceased work as and from that date.
8. Dr Law issued the plaintiff with an ordinary medical certificate putting her off work.
9. On 3 February 2014 the plaintiff attended Dr Law complaining of worsening pain and she was referred for ultrasound of the right wrist. She also saw Ms Medland, a hand therapist.
10. On 14 February 2014 the plaintiff lodged a WorkCover claim form in respect of the 27 January 2014 injury. Relevant particulars relating the method of injury suffered by the plaintiff were completed by the plaintiff’s supervisor.
11. On 21 February 2014 the plaintiff again attended on Dr Law. He prescribed tramadol. The plaintiff took some annual leave in late February 2014.
12. On 24 March 2014 the plaintiff attended her hand therapist who suggested a nerve conduction study. On 26 March 2014 Dr Law prescribed Lyrica. On 7 April 2014 nerve conduction studies were performed on the plaintiff that revealed right elbow neuropathy.
13. On 10 April 2014 the plaintiff was referred by Dr Law to Mr Wong neurosurgeon. On 1 May 2014 Mr Wong recommended surgery.
14. The defendant employer went into administration on 6 May 2014.
15. On 6 June 2014 the plaintiff underwent a right ulnar nerve decompression procedure.
16. On 11 June 2014 Dr Barton in a second of his written reports expressed the opinion that the plaintiff has no injury. However, Dr Barton appeared unaware of the recommendation for surgery made by Mr Wong. In all the circumstances I put Dr Barton’s second report to one side in terms of its probative and clinical value.
17. On 16 June 2014 the plaintiff saw Dr C Wong, consultant physician, for post-surgical review.
18. On 21 July 2014 Dr M Wong reported to the defendant insurer that he considered the plaintiff’s right ulnar neuropathy condition to be work-related.
19. On 7 August 2014 at the plaintiff’s request to return to work with the defendant she was told that there were no positions are available for her as a result of the defendant having gone into administration.
20. Sometime in late September 2014 the plaintiff obtained employment with MICM as a concierge. The employment was in some respects similar in nature to the work undertaken with the defendant and, in fact, included working at one or more of the apartment complexes she had worked at for the defendant.
21. The plaintiff’s first shift commenced with MICM on 1 October 2014. Her employment was initially on a part-time basis. The written description for the position encompassed work with bins.
22. The plaintiff’s evidence was that she struggled with her employment. At times she said she needed to apply the brace to her elbow. At times she agreed the work necessitated her moving bins but she said this was of a signally different type of bin work as was required of her with the defendant, in that it occurred less frequently, and the condition of the bins were not in a similar state of disarray as was the case at the defendant. As well the plaintiff said that MICM had by and large dedicated employees attend to the bins.
23. On 15 December 2014 the plaintiff ceased employment with MICM.
24. From early on in 2015 through to the middle of 2015 the plaintiff said she experienced pain in the left upper arm.
25. On 20 March 2015 the plaintiff received a notice of rejection of her original injury claim.
26. On 19 June 2015 the plaintiff attended Dr Law and complained of stress and anxiety and lack of sleep. This is the period identified for the commencement of the psychiatric claim which was initially pursued by the plaintiff but abandoned by her counsel on the morning of the second day of hearing.
27. On 24 August 2015 the plaintiff commenced employment with a new employer, “FM (V)” (as I shall refer to it for convenience) as a concierge. It was not contested by the plaintiff that this employment does not involve work moving or clearing bins and that the work is largely sedentary.
28. On 13 November 2015 the plaintiff signed a WorkCover claim form alleging injuries to the right wrist, forearm and elbow arising throughout the course of employment with the defendant together with consequential psychological injuries. This claim alleging injury throughout the course of the plaintiff’s employment was rejected on behalf of the defendant on 17 December 2015.

Materially contributes

29. Section 93 of the Act provides that:

If a worker’s incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation, the compensation shall be in the form of weekly payments subject to and in accordance with the Act.

30. The principal question for me to determine is whether or not, the plaintiff has established on the balance of probabilities that her work related injury materially contributes to her incapacity for work such that she is entitled to payments of compensation throughout the period of the second entitlement period.
31. I was told by the plaintiff’s counsel, and it was not contested by the defendant’s counsel, that there existed at all material times an ongoing difference in the plaintiff’s earnings with MICM in comparison to her earnings with the defendant.
32. The resolution of the principal question is informed at least partly by identifying the plaintiff’s preinjury duties, and about that there was considerable contest. What was the extent to which the plaintiff’s duties involved the work associated with the clearing of large commercial refuse bins and their movement from the basement of buildings to the outside street and their return to within the premises?  The defendant argued that no part of the plaintiff’s position descriptions referred to this duty. I accept that, however, the fact of the matter is that the employer representative in the completion of the Worker’s Injury Claim Form, when directed to respond to the question “what happened and how were you injured” wrote:

“Elaine was performing part of her duties which is to empty the large bins and clear the rubbish you at the Residential Site… Due to the overfill and large mess, Elaine had a break up this over her whole shift using her wrist, repetitive movement and strain.”

33. I find that work with the bins was part of the plaintiff’s ordinary and regularly ongoing pre-injury duties.
34. I am also satisfied and find that the injury she suffered occurred as a result of her performance of these duties and that the particular injury presented on the relevant date in September 2014.
35. Some attention was directed by the plaintiff in her evidence to the frequency of bin duties and the processes associated with the clearing and the movement of them. I accept the plaintiff’s evidence that in very many instances it fell to her alone to manoeuvre the bins. I accept as well her evidence that corralling the bins was a difficult task, made more so, because in addition to their weight, the manoeuvrability of their wheels proved difficult.
36. The defendant questioned the plaintiff about the frequency of and her capacity to undertake similar bin work with her subsequent employer, MICM. It was suggested to her that there was a lengthy period of time over which she had not attended on her GP for any reason of pain in connection with her right arm and elbow and that there had been no attendances or complaints of pain during the months she worked with MICM and was undertaking bin work.
37. On the evidence I am satisfied that the plaintiff undertook work with MICM from 1 October 2014 to 15 December 2014. The position description for the MICM work and that was tendered in evidence included bin work. However, the plaintiff testified that the nature of the bin work required of her at MICM was different, because the bins were not left in the same parlous condition as she had been exposed to with the defendant, and, as well, there were employees whose principal task was to deal with the bins and hence the frequency of her being called on for such work was less than whilst employed with the defendant. The plaintiff also said that the requirement to clear chutes blocked by rubbish was not a feature of the work at MICM as it had been with the defendant. Despite these differences in the work identified, the plaintiff nonetheless said she experienced pain and on occasions she was required to wear a brace.
38. The plaintiff attended her GP on 16 December 2014, which was the after she ceased work at MICM, but the clinical note of attendance does not make reference to a physical problem to her right arm.  Indeed, the clinical record produced in evidence reveals that for the period 23 July 2014 to 8 July 2015 there was no record of attendance by the plaintiff on her doctor and thus there is an absence of an objective record of a complaint about the right arm or elbow.
39. Despite the absence of contemporaneous clinical entries for the period mentioned above, the plaintiff gave viva voce evidence of having experienced ongoing right arm pain and of ongoing impediments to her as a result of the same. She described symptoms such as tingling and a “seizing up”.
40. The defendant submitted that I should not be satisfied on the balance of probabilities of the plaintiff’s account of pain and ongoing limitations when employed by MICM doing duties that included bin work because they are not reflected in the clinical reporting of Dr Law. Certainly, from the Court’s perspective, and as I pointed out in the course of final address by Mr Allan of counsel for the plaintiff, this is a troubling aspect of the plaintiff’s claim.  The plaintiff’s explanation that she did experience pain during this aforementioned period of time in relation to her right arm and yet attended on her doctor for unrelated matters but made no reference to the right arm or elbow pain is, frankly, difficult to accept.
41. Mr Allan argued however that I should err on the side of caution and accept the plaintiff’s account that on occasions the pain she experienced to her right arm had dissipated by the time of her attendances on Dr Law and that the importance of such matters that prompted the consultations with him had overtaken mention of right arm pain. The plaintiff said that the pain and discomfort she experienced dissipated, or at lessened, several hours after onset. I found this to be an unconvincing explanation on behalf of the plaintiff particularly as she accepted under cross-examination that there were no inhibitions operating to have prevented her mentioning any matters of concern when attending Dr Law.
42. The defendant furthermore pointed to the provision of certificates by Dr Law during the period of time under consideration that the plaintiff was employed with MICM and the absence of reference in any such certificate to the right arm or elbow.
43. Mr Allan was unwilling to concede an insufficiency of evidence to support the plaintiff’s account that she was suffering from symptoms associated with the right arm work related injury in this period of time. He referred to the fact of the plaintiff’s son testimony who recounted his mother suffering limitations and experiencing pain after work whilst employed at MICM. His evidence was largely non-specific and to the extent it related to the plaintiff’s right arm, it was unconnected causally to any particular event related to her work in connection with the bins.
44. Despite the lack of medical corroborative evidence in relation to the right arm injury during this period of time, the plaintiff’s direct evidence was that had she not resigned her employment with MICM because of difficulties with some co-workers, she would not have been in a position to have continued in the employment because of pain she was experiencing with her right arm and elbow. The issues the plaintiff experienced with her co-workers was not explored in depth, but the plaintiff did say, that part of the problem involved a complaint she made to management that her co-workers were not pulling their weight with the result that she was being left to clean up after them in relation to the refuse bins.

Assessment of sufficiency of evidence

45. Had it proved necessary for me to determine the plaintiff’s claim based only on whether she was capable of performing bin work at MICM or, whether such work she undertook with MICM of whatsoever similarity to the work she had undertaken with the defendant and whether of like frequency to the work performed with the defendant, the proper determination of the matter would have proved more problematic because of fact that the plaintiff did not present with any like problem to the right arm or elbow whilst employed with MICM of the character she experienced as a result of the work performed with the defendant. However, this does not mean that the plaintiff has failed to establish on the balance of probabilities that she has a current ongoing incapacity for her pre-injury duties. The circumstance in which the plaintiff may be entitled to succeed on this basis, ultimately finds resonance in a recent report of Mr Brearley and the relevant legal meaning of “incapacity”.
46. Can it be said of the plaintiff that she suffers an incapacity for her pre-injury duties?  Incapacity is at the heart of a compensable injury. Put another way, has the plaintiff established on the balance of probabilities that she does not have a capacity for her pre-injury duties and that her employment amounted to a material contribution? 
47. It is sufficient to satisfy the test of “material contribution” of the contribution of work-related injury that incapacity is greater than de minimus. A classical exposition of principle is contained in Bonnington Castings Ltd v Wardlow (1956) AC 613 in which Lord Reid described material contribution as follows:

“What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how they can be something too large to come within the minimus principle but yet too small to be material.”

Incapacity

48. I am satisfied on the balance of probabilities that the preponderance of evidence led before me does support a conclusion that the plaintiff suffers an incapacity that renders her unfit for pre-injury work.
49. The work description at MICM did not describe the duties of bin work. The plaintiff said she only brought a couple of bins out at the City Road building. She said she had difficulty coping with work at MICM. It was suggested by the defendant that the plaintiff coped with that work at MICM. Her current employment as a concierge seems quite sedentary and does not involve the use of the right arm and elbow or indeed the performance of duties that she performed regularly at the defendant and much less so at MICM.  The plaintiff’s evidence was that had the employment at MICM not been complicated by untoward treatment by co-workers she would not have been able to have continued in any event because of the experience of pain. I accept her uncontested evidence on this matter.
50. The question is essentially distilled to whether the plaintiff’s work injury materially contributes to an ongoing incapacity for pre-injury duties. The medical evidence adduced by the plaintiff satisfies me on the balance of probabilities that it does. I am of the opinion based on the current reporting by Mr Brearley. He furnished two medico-legal repots dated 30 September 2015 and 4 October 2016. In the more recent report he wrote that:

If she were to return to this form of work once more, she undoubtedly would develop a recurrence of a previous condition and it would be quite disabling.

Operation of 6 June 2014, namely right ulnar nerve decompression, did help but her residual symptoms did remain and they would be lit up again were she to do any work involving pushing and pulling of the heavy bins.

It is necessary for her to avoid all significant physical work involving the arms and this is the requirement for the foreseeable future. In fact there is no likelihood at all that she would ever be able to do the heavy work again lest she suffer a recurrence of her ulnar neuritis.

51. Satisfied as I am that the plaintiffs pre-injury duties included the heavy manoeuvring and clearing of rubbish bins and that such duties are not capable of being performed because of the effects to the plaintiff’s right arm as outlined by Mr Brearley, I am further satisfied that the plaintiff does not have capacity for pre-injury duties and that such incapacity continued through until the second entitlement period.
52. Ms Tsikaris submitted that Mr Brearley’s report failed to disclose the fundamental factors upon which the ultimate conclusion expressed by him is based. In particular, counsel submitted that the report failed to identify the constituent parts of the employment comprising the bin work that had been undertaken by the plaintiff with the defendant, and then by way of a comparison, such work as was performed by her with MICM. It was submitted that the language used in Mr Brearley’s report that the work with MICM was not “suitable” work posed more questions than it answered. In particular, it was submitted, that Mr Brearley failed to identify why it was not suitable work by reference to the indicia of the work. One of the difficulties associated with this submission, is in fact, the language used by Mr Brearley which by way of comparison fixed the work with bins at MICM to the work injury occasioned to the plaintiff by bin work performed with the defendant. Mr Brearley made no mention of the plaintiff lifting weights of up to 5kg as part of her rehabilitation and within weight restrictions recommended by her doctor. That activity is not of course akin to bin duties as I have described that task.
53. I acknowledge the criticism levelled by Ms Tsikaris at Mr Brearley for the lack of analysis of the bin work, which even by the plaintiff’s account, presented with a considerable variation to the work performed with the defendant. Ms Tsikaris submitted that this evidentiary gap was unable to be filled or made good by the clinical notes or evidence of the plaintiff’s general practitioner Dr Law. I agree with that observation. I have already found that the clinical notes are devoid of a connection of complaint or attendance for pain associated with the right arm or elbow, and otherwise than by the plaintiff’s own evidence, and that of her son, there is scant material to suggest otherwise than that that the plaintiff undertook bin work with MICM without any reported pain or evidence of undue intrusion of pain.
54. However, as Mr Allan pointed out the opinion expressed by Mr Brearley in his report dated 4 October 2016[1] is that the plaintiff could not go back to the preinjury duties with the defendant without putting herself at risk. Mr Brearley in response to a letter from the plaintiff’s solicitors dated 4 October 2016 wrote:

[1] Part of Exhibit P16

“I am in receipt of your letter of today’s date and I have studied my notes.

In reply to your particular questions:

1.In your opinion, has the injury that Ms Holland suffered during her employment with ( ), trading as Makesafe Security Solutions, rendered her more susceptible to future aggravations of her condition? Please provide reasons for your answer:

The injuries she sustained working for (base) was right ulnar neuritis, i.e. nerve irritation along the course of the ulnar nerve and particularly in the region of the medial epicondyle. This injury would undoubtedly render her more susceptible to aggravations of this condition. Were she to do any work involving significant pushing and pulling then there would be no doubt that her condition would recur.

2.If Ms Holland was to return to work that involved the pushing and pulling of commercial bins full of rubbish as she described to you on 30 September 2015, what would be the likely effect on her condition? Please provide reasons for your answer:

The work which she described to me, namely the pulling and pushing of commercial bins full of rubbish, was of a heavy nature in deed and this did play strain on the arms and the right arm in particular and more especially, the region of the elbow where she sustained clinical irritation of the ulnar nerve. If she were to return to this form of work once more, she undoubtedly would develop a recurrence of her previous condition and it would be quite disabling.

Operation of 6 June 2014, namely right ulnar nerve decompression, did help her residual symptoms did remain and they would be lit up again wishing to do any work involving pushing and pulling of the heavy bins.

It is necessary for her to avoid all significant physical work involving the arms and this is the requirement for the foreseeable future. In fact there is no likelihood at all that she would ever be able to do the heavy work again lest she suffer a recurrence of her ulnar neuritis.”

55. I am satisfied that the plaintiff is not able to perform her pre-injury duties. If I am wrong in that finding of fact, then I am also satisfied that if she returned to her pre-injury duties she would at risk of a flare up of her work injury. I am satisfied that on whichever of these findings the position is governed by applicable legal principle that results in a favourable decision for the plaintiff.

The Law

56. In Arnotts Snack Foods Ltd v Yacob (1985) 155 CLR 171 at p 177 the High Court endorsed the approach to the concept of “incapacity for work” as one that:

“…denotes a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work…”

57. I have already found that the plaintiffs preinjury duties included the pushing and pulling of heavy bins. In Arnotts, Brennan J said at p 183:

“Accordingly, the appropriate question to pose in order to determine whether or not there is an incapacity for work is “whether the injury has left the worker in such a position that in the open labour market his earning capacity in the future is less than it was before the injury”.

58. As I have also mentioned, if it was the case contrary to the preponderance of evidence and my finding that the plaintiff’s injury has resolved , the  consequence of the opinion expressed by Mr Brearley in the extract of his report dated 4 October 2016 to which I have referred resonates in the decision of the High Court in Asioty v Canberra Abattoir Proprietary Limited (1989) 167 CLR 533 in which Toohey J. ( with whom Mason CJ, Brennan, Dawson and McHugh JJ agreed) said [541]:

“However, there is no reason why a diseases which produces susceptibility to some debilitating condition should not be regarded as aggravated when that susceptibility is heightened by a circumstance such as work of a particular type or in particular conditions. The Ordinance does not require an aggravation of the symptoms of a disease. The Federal Court did not meet the appellant’s claim that, by reason of the aggravation caused by his employment with the respondent, is now unable to return to work because to do so will produce symptoms which have already prevented him from continuing at work.”

59. In my judgement, this statement from Asioty accords with the probable situation facing the plaintiff and as recounted in the recent opinion of Mr Brearley. That report not only can and should be considered in light of the decision of the High Court in Asioty, but when seen as well in conjunction with the whole of the evidence, also meets the principle stated by the High Court in Yacob [at pages 179 to 180] that:

“In the present case because the Commission found that the respondent’s injury disabled him from performing part of his pre-injury work, it followed that he was partially incapacitated for work-he was unable to undertake clerical duties which involved climbing, lifting and bending. His incapacity for work, due to injury, was clearly relevant to his pre-injury employment and to his ability to sell his labour on the open market. Potential employers, like the appellant, who have jobs for clerks who are required to climb, lift and bend, would not employ him”.

60. In my judgment, if the accepted view in relation to the meaning to be accorded “incapacity for work” is  as expressed by the High Court in Yacob at [page 177],  as something that “… denotes a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work...” then, in my opinion, based on the factual analysis and medical opinions referred to in these reasons, the plaintiff suffers from and continues to suffer from a relevant “incapacity for work” for her pre-injury duties for which there has been a material contribution because of her work injury. I am not persuaded that because the plaintiff has exhibited a capacity to perform some, but not all, of duties I have found amounted to her pre-injury duties that a partial incapacity is a disentitling fact. I respectfully adopt the reasoning of His Honour Judge Parish in Chelberg v Urban Maintenance Systems Pty Ltd [2011] VCC 973 when he said [at paragraphs 86 to 90]:

“There is no issue that the plaintiff suffered a myocardial infarction (the death of heart muscle tissue) on or about 10 or 11 September 2009 arising out of or in the course of his employment with the defendant. The Claim for Compensation lodged by the plaintiff alleging stress and harassment during the course of his employment precipitating the infarct was ultimately accepted in payments of compensation made to 13 June 2010. The only ground sought to be relied on by the defendant for termination of such payments is that the plaintiff has no incapacity for work within the meaning of s 93 of the Act.

It is for the defendant to establish as a matter of probability that the plaintiff has no “physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work” [Arnotts Snack Products Pty Ltd  v Yacob at p 177].

In this sense, a distinction was sought to be made between the plaintiff having an “incapacity for work” with the defendant but no incapacity for work which he might reasonably be expected to perform such as work with City Facilities. Counsel for the plaintiff highlighted that the test as set out in Yacob only involved a consideration of whether a worker had the capacity to perform all aspects of his pre-injury employment.

In my view, this issue is decided by the statement of the High Court already referred to in paragraph 16 of these Reasons. In particular, based on a finding that Yacob was partially incapacitated for work, in that he could not perform the relevant climbing duties, the High Court stated:

“… His incapacity for work, due to injury, was clearly relevant to his pre-injury employment and to his ability to sell his labour on the open market. Potential employers, like the appellant, who have jobs for clerks who are required to climb, lift and bend, would not employ him”.

In this sense, I am of the view, that if the plaintiff is found to be “partially incapacitated for work” in that he cannot perform aspects of his pre-injury employment, and his ability to sell his labour on the open labour market is reduced, as potential employers, such as the defendant, would not employ him.”

Conclusion

61. For the reasons stated above, I am satisfied that the plaintiff is entitled to the following relief and I make the following orders:

i.A declaration that the defendant is liable for injury to the plaintiff, being “right ulnar neuritis”

ii.Pursuant to the Accident Compensation Act 1985 (the Act) the defendant is to pay the plaintiff:

(a)    weekly payments of compensation from 27 January 2014 until the expiry of the second entitlement period under the Act;

(b)   reasonable medical and like expenses from 27 January 2014;

(c)    Interest at the prescribed rate on the amount of outstanding weekly payments pursuant to s 114E of the Act pursuant to the Act;

(iii)Liberty to apply is reserved in respect of s 114 EA of the Act

(iv)The defendant to pay the plaintiff’s costs including reserved costs:

(a)On Magistrates’ Court Scale G up to 11.00am on 29 September 2016; and

(b)Thereafter on Magistrates’ Court Scale G, as if the costs prescribed by that scale were increased by 25% pursuant to Rule 26.08(2)(b)

1. Certify for plaintiff’s counsel’s fees as follows:

   (a)Two refreshers (item 54);

   (b)Two hours of conference (item 51);

   (c)Brief to take judgement at mention (item 54)

(vi)The proceedings otherwise dismissed.