Gazic v Form 700 Pty Ltd

[2011] VCC 927

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-10-01003

LUKE GAZIC	Plaintiff
v
FORM 700 PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	7, 9 & 10 June 2011
DATE OF JUDGMENT:	14 July 2011
CASE MAY BE CITED AS:	Gazic v Form 700 Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VCC 927

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 – s.134AB – application for leave in respect of pain and suffering damages and pecuniary loss damages – injury to low back – primary reliance upon sub-paragraph (a) of the definition of serious injury – issue of whether in relation to pecuniary loss plaintiff was likely to have been made redundant – calculation of “without injury” earnings – factors to be considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with	Zaparas Lawyers
Ms N Wolski
For the Defendant	Mr A Moulds SC with	Lander & Rogers
Ms R Kaye
HIS HONOUR:

Background

1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in relation to both pain and suffering damages and pecuniary loss damages. In bringing his application, the plaintiff relies upon sub-paragraphs (a) and (c) of the definition of serious injury found in s.134AB(37) of the Act. It would be fair to say that sub-paragraph (c) received very little attention throughout the course of the application. The injury upon which the plaintiff relies is one to the low back, this occurring in approximately February and March 2008, and the reaction to and consequences thereof.

2          Mr T Tobin SC with Ms N Wolski of counsel appeared on behalf of the plaintiff. Mr A Moulds SC with Ms R Kaye of counsel appeared on behalf of the defendant. The plaintiff was called to give evidence and was cross- examined, as was Dr Clayton Thomas, a consultant in rehabilitation and pain medicine, who has treated the plaintiff. The balance of the evidence was documentary in nature and was tendered by consent.

3          I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this and shall endeavour to apply the principles set out in them in coming to a decision in this case. I shall not list such cases here but shall refer to any which I consider to be specifically relevant in the course of this Judgment. It was not argued but that the plaintiff bears the burden of proof.

4          As indicated above, minimal attention was paid to the application insofar as it relied upon sub-paragraph (c) of the definition. Indeed, in his closing address Mr Tobin stated that he did not propose to make any submission in relation to it. It seems to me to be unnecessary to go into the details concerning it, save for any issue as to psychological or psychiatric factors which would need to be disregarded for the purposes of s.134AB(38)(h) of the Act. Suffice to say that, insofar as sub-paragraph (c) of the definition is concerned, the plaintiff has failed to discharge the burden of proof and does not succeed on the basis of any permanent severe mental or permanent severe behavioural disturbance or disorder.

Factual background

5          The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.

(i) The plaintiff

6          In essence I found the plaintiff to be a credible witness and have no reason to doubt his reliability. That extends to his description of his symptoms and the consequences of the injury which he has suffered. I note that Dr Gary Davison, occupational physician, examining the plaintiff at the request of the defendant, described him as pleasant and co-operative. Mr Michael Dooley, orthopaedic surgeon, also examining on behalf of the defendant, expressed the opinion that he did not believe that the plaintiff was deliberately exaggerating his presentation, although also observing that he does tend to look on the gloomy side of all aspects of his life. Mr David Brownbill, consultant neurosurgeon, examining the plaintiff at the request of his solicitors, described the plaintiff as being alert and co-operative without embellishment. These are views with which I agree.

7          In summary, I accept the plaintiff as a witness of truth. Further, and in relation to the plaintiff’s appearance, there are a number of references in the material to the plaintiff’s height and the role this played in his sustaining injury and suffering consequences. There is not doubt but that he is a tall, broad shouldered man but not one of an overweight appearance.

(ii) The plaintiff’s education, background and training prior to the injury

8          The plaintiff is aged 30 years, having been born on 1 August 1980. He is a single man who currently lives at home with his mother and brother. He was educated to Year 11 and then worked as a forklift driver and labourer for approximately two years. Thereafter he worked intermittently as a casual labourer before obtaining a security licence after completing a two week course. He obtained this licence in approximately 2000. Having worked for approximately a year in the security industry, he then lost his job as a result of interference with his security licence because of convictions for theft. I might say that the plaintiff has had a number of scrapes with the law, and these were the subject of some detailed cross-examination. In relation to these particular dishonesty offences, they seem to have occurred in the aftermath of drinking and resulted in a penalty of 180 hours community service. Nevertheless, the plaintiff was convicted and this was sufficient for him to lose his security licence and his employment.

9          Thereafter the plaintiff obtained casual labouring jobs via labour hire organisations, and these kept him in employment most of the time. In 2004 he commenced labouring on building sites for MC Labouring Services, one such organisation. He performed this for some three years before commencing with the defendant in approximately September 2007. His work with the defendant basically consisted of erecting and dismantling floors. This involved levelling of the underside of concrete floors which form the ceiling of the level below. This work required him to perform his duties from a mobile platform.

(iii)	The injury
(a)	The state of the plaintiff’s health prior to the injury

10        The plaintiff had suffered some problems of a psychiatric or psychological nature prior to suffering the relevant injury. His father died of cystic fibrosis in October 2004, and the plaintiff suffered from depression during the later stages of his father’s illness. He saw a general practitioner, Dr Levar, and was prescribed anti-depressant medication. He again became depressed in 2005 when he broke up with a long-standing girlfriend, was again placed on anti-depressant medication, and was referred by Dr Levar to a psychiatrist whom he saw on one occasion. His depression recurred in 2006 and Dr Levar again sent him to the psychiatrist whom he saw on one occasion only. In late 2006 the plaintiff’s general practitioner was apparently so concerned about the plaintiff’s condition that she called the CAT team, who were of assistance to the plaintiff for a period. He also stopped using marijuana, which had been somewhat of a problem, at this time.

11        The plaintiff also had some back problems, seeing a chiropractor called Dr Mitrevski in mid-2003. The plaintiff has little recollection of this. He can remember going to Dr Mitrevski’s rooms, but cannot remember what the doctor looked like or any details of his visits. He could not recall telling Dr Mitrevski such things as the back pain having an insidious onset. The notes of Dr Mitrevski would indicate that, for example, the plaintiff took six Panadol in two hours and had a pain “blowout” approximately every three months lasting three or four days at a time. Again, the plaintiff had little recollection of this. In his affidavit of 9 November 2009 he has referred to occasional back pain in the past, but nothing which prevented him from working. He believes that he had seen a chiropractor in 2002 on two or three occasions, that chiropractor being in Sunshine, and another chiropractor in Taylors Lakes for a couple of months in 2006, together with an osteopath on another occasion in 2007. There appears to have been another attendance at a chiropractor on 8 January 2008 in relation to central low back pain for the preceding week. The history would seem to indicate that this was associated with work but without there having been any specific trauma.

12        The plaintiff also has a history of a whiplash injury, and of concussion after falling from a bicycle when he was 17 years of age. I attach no great significance to either of those injuries. Clearly the plaintiff does have a history of some back problems prior to the relevant incident of injury, together with a history of depression and similar psychiatric problems. They seem to me to be the items of medical history potentially relevant to the present case.

(b) The injury of early 2008, its treatment and the assessments of it

13        In early 2008 the plaintiff was working for the defendant at Docklands on a carpark levelling the underside of floors as described above. The plaintiff was required to stand on a mobile platform whilst chipping rough concrete and pieces of formwork from the underside of the floor which formed a ceiling above him. As stated, he is a tall man and he found that he had to work in a bent position as the height of the platform was not adjustable, and he could not stand up straight upon it because the ceiling above him was too low. He performed this work for a couple of weeks and developed back pain. He complained to the foreman and his duties were altered. He was given work performing similar tasks, but using an electric sander and working from an adjustable platform. However the work was done above his head and involved pushing the sander into the concrete. Whilst doing this his back pain gradually got worse, causing him to visit Mr Peter Malic, an osteopath. On approximately 12 March 2008 whilst working, the plaintiff bent over in order to pick up a tool and experienced a sharp pain in his low back. He reported the matter and arranged to see Dr Levar on 14 March 2008. The plaintiff ceased work and, save for a brief attempted return in June 2008, he has not worked since.

14        That employment is implicated in the plaintiff’s injury is not denied by the defendant and indeed liability was accepted in relation to the payment of statutory benefits.

15        On 14 March 2008 the plaintiff attended upon Dr Levar who took an appropriate history and found upon examination that the plaintiff was tender over the L5/S1 region with bilateral positive straight leg raising findings. He was certified as being unfit for work, placed on medication, and referred for physiotherapy. A CT scan of the lumbar spine was performed on 14 March 2008 and this revealed a broad posterior L5/S1 disc prolapse indenting the theca with narrowing of the left lateral recess and intervertebral foramen. The radiologist also concluded that there was a probable compromise to the traversing left S1 nerve root. The physiotherapist, Mr Malic, had sent the plaintiff for an x-ray on 7 March 2008. This had revealed a narrowed L5/S1 disc space which could have been developmental or could have represented a prolapse, with the radiologist suggesting that a CT scan should be performed.

16        During April 2008 Dr Levar referred the plaintiff to an occupational therapist with the hope of having some alternative work duties identified. The plaintiff commenced these alternative duties in June 2008, working four hours a day with no bending or lifting more than five kilograms. He attended again with exacerbation of low back pain and tightness over the back muscles and did not return to work.

17        Dr Levar referred the plaintiff to Dr Clayton Thomas, consultant in rehabilitation and pain management, who saw him on 11 July 2008. Dr Thomas noted that the plaintiff was very concerned about his back and noted that the Oswestry Disability Questionnaire scored highly for disability. Dr Thomas wondered whether non-organic components were acting as pain magnifiers, but also arranged for an MRI scan. This was performed on 15 July 2008. The radiologist concluded that there was a broad based left paracentral L5/S1 disc protrusion abutting the left L5 nerve root within the foramen without obvious compression, although it is apparent that this protrusion was indenting the thecal sac and abutting the existing left L5 nerve root within the foramen.

18        Having seen the results of the MRI, Dr Thomas believed that the plaintiff’s problems were stemming from the lumbosacral disc level. He referred the plaintiff to the Dorset Rehabilitation Centre, having formed the view that the plaintiff’s work capacity was compromised. Dr Thomas’ attitude in relation to non-organic components seems to have been modified thereafter. I shall return to this.

19        Dr Thomas has reviewed the plaintiff on a number of occasions since, noting such things as complaints of ongoing significant back pain and some left leg pain. The back pain is the dominant problem. He also noted that the plaintiff expressed a high degree of motivation in relation to a return to work, although he was somewhat ambivalent concerning doing a computer course.

20        When Dr Thomas reviewed the plaintiff on 21 September 2009, the plaintiff, following a medico-legal examination, wished to talk about the option of spinal fusion. The plaintiff was not eager to pursue this and Dr Thomas advised against it, feeling that a conservative approach was reasonable and appropriate. The plaintiff, when seen in September 2009, was looking at retraining courses and spoke of a possible position dealing with spare parts in a warehouse for a motorbike company. This seemed to Dr Thomas to be reasonable. When reviewed on 26 March 2010, the plaintiff predominantly had back pain with difficulty sitting and standing. Dr Thomas also noted that the plaintiff was suffering from depression and was on medication. At this time the plaintiff was doing a retraining course, involving the use of a computer, in occupational health and safety. Upon examination, spinal movements were about half of normal.

21        Dr Thomas reviewed the plaintiff again on 25 June 2010, by which time the plaintiff had suffered a significant aggravation of his condition, in particular with pain in his back, left buttock and left leg. Dr Thomas noted an antalgic gait and a slightly diminished left calf reflex. He recommended a further MRI of the lumbar spine, this being carried out on 13 July 2010. It revealed a degenerative L5/S1 disc which potentially could irritate the budding left S1 nerve root, although there was no significant displacement or distortion. There had been no change in appearance of this discal contact over the left S1 nerve root since the previous MRI of July 2008. Dr Thomas, who apparently viewed the MRI, has also referred to end plate changes at L5/S1 and a small left sided annular bulge/tear on the background of a left sided diffuse disc bulge. In his report of 16 August 2010 Dr Thomas concluded that the plaintiff had a back condition with predominantly back pain and some leg pain to which work remained a material contributor. He was of the view that the pain arose from the lumbosacral spine with some left leg radicular-type symptoms. He did not believe that the plaintiff was capable of returning to pre-injury employment but had some work capacity if he could find a position that did not involve bending, lifting and twisting below waist level or above chest height.

22        Dr Thomas again saw the plaintiff on 18 October 2001 at which time the back pain remained the dominant problem. Dr Thomas prescribed Celebrex tablets as an anti-inflammatory, and noted that Cialis, which had been previously prescribed for erectile dysfunction, had been helpful. He also made observations concerning the plaintiff’s capacity to engage in employment with restrictions, but limiting such work to no more than 24 hours per week. I shall return to a discussion of this subsequently.

23        In his oral evidence Dr Thomas, who was an impressive witness, essentially did not resile from the opinions expressed in his reports. He gave evidence that there had not been any significant change in the plaintiff’s condition since the report of 28 October 2010. There had been fluctuations and changes in medication, the plaintiff now being prescribed Neurotan and Taigin, which was described by Dr Thomas as being a new opioid. He stated that he would recommend Tramadol. He also expressed the view that the plaintiff’s erectile dysfunction would be due to the back injury and the medication for it rather than to other factors. He also observed that the plaintiff has always presented in what he described as an “organic manner” with no functional signs – see T 40 (henceforth I shall refer to transcript references in this way). He also stated that the emotional aspects of the case were in proportion to the underlying organic problem. However, what Dr Thomas has noted over the lengthy period of time during which he has been dealing with the plaintiff is the underlying organic aspects of his presentation – see T 42. Essentially he was of the view that the reason for the plaintiff’s ongoing pain was the abnormal disc at L5/S1. He also gave evidence that he would anticipate that the plaintiff would suffer constant pain. An interesting observation of Dr Thomas (at T 48) follows a remark that he sees people across the whole spectrum of age groups and from those who are purely non-organic to people who are very much organic in relation to the injury. He gave evidence as follows:

“The history’s important and if not it’s the history, examination and investigations, and what you really want is sort of a ticking all the boxes. And this man has that. He has the right history, and appropriate examination for history and an appropriate examination for the investigation.”

24        He further observed at T 50:

“He comes in with a history which sounds organic, an examination

which clearly was organic.”

25        Dr Thomas also stated that the type of work of which the plaintiff would be capable would be a “back friendly job”, which meant no forward bending, no lifting of more than five kilograms between waist and chest and no lifting and arching the back backwards – see T 61. He further stated that, when the plaintiff was attending the rehabilitation program at the Dorset Rehabilitation Centre, neither he nor others looking after the plaintiff knew of any inconsistency in the plaintiff’s presentation when a comparison was made with his complaints.

26        I have spent a considerable amount of time discussing the evidence of Dr Clayton Thomas because he is an important witness in this application. Not only is he a consultant in rehabilitation and pain medicine, but he has now treated the plaintiff over almost three years. Further, his treatment continues and he is in a position to give a comparatively current assessment of the plaintiff. In addition, he gave oral evidence and was subjected to appropriate, relevant and incisive cross-examination from which he emerged without damage. As stated, he was an impressive witness and I found his evidence persuasive.

27        The plaintiff has also continued to be seen by Dr Levar. A report of 26 April 2011 indicates that she had last seen him on 1 April 2011 when his leg pain was better but not his back pain. She diagnosed persistent low back pain and reactive depression and listed the medication which the plaintiff is taking, and which could be described as considerable. It includes the anti-depressants Avanza and Lovan in addition to Tramal, Celebrex, Alepam and Neurontan. Apart from stating that the plaintiff’s prognosis is uncertain, she concluded her most recent report by saying that he was not fit for pre-injury duties and would be able to work in alternative duties in which he was mobile and active, performing light physical work with restriction of bending and not lifting more than five kilograms.

28        It should also be pointed out that, in May 2009, Dr Levar referred the plaintiff to Mr Armin Drnda, neurosurgeon. Mr Drnda expressed the view that the plaintiff did not require surgery, needed retraining, and placed restrictions upon the type of activities in which he should engage. It would appear that Mr Drnda saw the plaintiff on one occasion only.

29        Turning to medico-legal assessment of the plaintiff’s physical injuries, he was seen at the request of his solicitors by Mr David Brownbill, consultant neurosurgeon, on 15 July 2009. Mr Brownbill diagnosed a single level lumbosacral intervertebral disc derangement and placed various restrictions upon the type of activities in which the plaintiff could engage. When reviewed on 6 October 2010 by Mr Brownbill, the plaintiff stated that he was much the same as when previously seen, with low back pain that was constant and worse with physical activity, and with intermittent left leg pain. Mr Brownbill expressed the opinion that there was no indication which would cause him to modify the opinion that he expressed in his previous report. He implicated employment and referred to disc damage and a disc prolapse.

30        Mr Justin Hunt, orthopaedic and spinal surgeon, examined the plaintiff at the request of his solicitors on 23 August 2010. Mr Hunt diagnosed an acute exacerbation of lower back pain symptoms as a result of the work injury, the injury itself (along with leg pain symptoms) being due to degenerative disc disease with associated annular tear and a broad based disc protrusion at the L5/S1 motion segment. He was of the view that the plaintiff’s clinical presentation matched radiological findings. He implicated employment and his comments concerning capacity shall be discussed subsequently. He reviewed the plaintiff on 29 April 2011. He again implicated employment and diagnosed symptomatic lumbar spondylosis with lower back and left leg pain secondary to degenerative L5/S1 motion segment with a broad based disc bulge and annular tear. He was again of the view that the clinical presentation matched the findings revealed by radiology. He was of the view that the plaintiff had no capacity for either pre-injury employment or any alternative employment as at the date of the report and considered it unlikely that the plaintiff would be able to work in the future. In a supplementary report of 6 June 2011, which does not appear to have been associated with any further examination of the plaintiff, Mr Hunt expressed the view that the plaintiff was at the more severe end of the spectrum of patients experiencing mechanical lower back symptoms, describing these as being ongoing and unremitting. He then commented upon various employment options which have been suggested. His opinions in this regard shall be referred to again later.

31        The plaintiff has also been examined for medico-legal purposes at the request of the defendant. Mr Paul Kierce, orthopaedic medico-legal consultant, saw the plaintiff on 17 June 2008. Mr Kierce expressed the opinion that the plaintiff had aggravated a pre-existing injury to his lumbosacral spine, namely a posterior rim fracture of the fifth lumbar vertebral body, causing narrowing of the L5/S1 neural foramen with posterior bulging of the lumbosacral disc at that level. He considered it “just possible” that this could be an un-united fracture of the epiphyseal plate which had occurred whilst the plaintiff was growing. He believed that the injury under consideration was an aggravation of a pre- existing problem but that the work component was still materially contributing to any incapacity for work. He regarded the plaintiff as being permanently incapacitated for work which did not comply with various restrictions. When subsequently forwarded a report of the MRI of 15 July 2008, Mr Kierce stated that it was likely that the disc protrusion demonstrated would gradually shrink so that symptoms should settle. He regarded it as possible but unlikely that there would be a need for surgical intervention, placed restrictions upon the type of work in which the plaintiff could engage, and stated that the plaintiff was permanently precluded from returning to his pre-injury duties.

32        Mr Kierce saw the plaintiff again on 3 August 2009. He was of the view that the plaintiff should be weaned off Tramadol and was not employable whilst taking it. At the time the plaintiff had just commenced a computer course. He believed that the plaintiff was still suffering from the effects of his work-related aggravation of lumbosacral degeneration resulting in herniation of the lumbosacral disc with clinical evidence of instability at that level. He also expressed the opinion that none of the plaintiff’s current symptoms were due to functional overlay, exaggeration, psychological or psychosomatic factors.

33        Mr Kierce emphasised that the plaintiff’s current condition was still work- related and that he was permanently unfit for his pre-injury employment. He would be fit for suitable employment if he could manage without Tramadol. Having considered whether various employment suggestions were suitable, and not dissenting in relation to some of these, Mr Kierce concluded that surgery may have to be considered, expressing the view that the plaintiff would benefit from fusion of the lumbosacral joint. It was probably the expression of this opinion that caused the plaintiff to discuss fusion surgery with Dr Thomas who, as stated, advised against it.

34        Mr Michael Shannon, surgeon, saw the plaintiff at the request of the defendant on 5 August 2009. He found lumbar flexion to be limited by two- thirds and with significant restriction of extension, along with some restriction of straight leg raising. Mr Shannon expressed the view that the plaintiff had sustained aggravation of pre-existing lumbar disc degeneration in the form of a left foraminal disc protrusion. He described the plaintiff’s restriction of movement as being “apparently genuine”. Mr Shannon was essentially examining the plaintiff for the purpose of Whole Person Impairment pursuant to the AMA Guides. He was prepared to make such an assessment.

35        Dr Gary Davison, occupational physician, saw the plaintiff at the request of the defendant on 21 January 2010. The plaintiff appears to have given to Dr Davison a comparatively comprehensive synopsis of the back problems from which he suffered prior to the relevant incident of injury. Dr Davison agreed with the diagnosis of Mr Kierce to the effect that the plaintiff suffered a work- related aggravation of lumbosacral degeneration resulting in herniation of the lumbosacral disc with clinical evidence of instability at that level. Whilst referring to the pre-existing lower back problems, Mr Davison described what the plaintiff was now suffering from as being a persisting aggravation. He placed restrictions upon the requirements of any alternative employment and commented upon suggested occupations. In essence, he seems to have favoured positions such as sales representative and sales assistant.

36        Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 3 March 2011 at the request of the defendant’s solicitors. He expressed the view that, in March 2008, the plaintiff suffered the onset of acute low back pain and pain radiating into his lower limbs, and that in this episode the plaintiff sustained a lumbosacral disc prolapse against the background of his degenerating disc. Mr Dooley was not in favour of surgical intervention, but expressed the view that the plaintiff would struggle if employed in heavy physical work, but could cope with light physical work and clerical duties. Whilst remarking upon the plaintiff’s depression, Mr Dooley also stated that he did not believe that the plaintiff was exaggerating his presentation.

37        It could be said that there is not a great deal of difference between the views of the various medical treaters and examiners. In relation to the injury suffered by the plaintiff, I prefer and accept the opinions of Dr Thomas, Mr Brownbill and Mr Hunt that the plaintiff has an abnormality, derangement or protrusion at the L5/S1 level and that the work in question has materially contributed to the injury and its consequences. On balance, I accept that the injury sustained was probably in the nature of an aggravation in that, as stated by Dr Thomas in his evidence, radiological examination carried out immediately prior to March 2008 would probably have revealed the existence of some abnormality in the disc in question. I might say that the views expressed by Dr Thomas, Mr Brownbill and Mr Hunt do not differ greatly from other opinions expressed, including that of Mr Kierce.

38        Insofar as the injury is in the nature of an aggravation, in accordance with the authorities it is the consequences of the injury as aggravated which should be considered. I accept that the plaintiff was suffering from some backaches and problems prior to February and March 2008. However, I also accept that the amount of treatment which he had had over the preceding six or seven years was not great and that he had been able to perform demanding physical work during that time. Further, he had been performing particularly demanding physical work with the defendant in the months prior to the onset of the severe symptoms which brought his employment to an end. In my opinion the consequences and symptoms of the injury as aggravated are essentially the consequences and symptoms from which the plaintiff now suffers. Previously he was able to perform heavy work and the interference with his lifestyle was not marked. It should be said that, at the outset, Mr Moulds stated that causation by way of aggravation was not an issue in the case – see T 20.

39        I am also of the view that the consequences of the relevant injury are permanent within the meaning of the Act. I am satisfied that they will persist for the foreseeable future. Dr Thomas has stated that the prognosis is for persistent backache going forward, with occasional left leg sciatica. He has also stated that the plaintiff will not be able to return to unrestricted physical work, which, whilst essentially a comment on capacity, contains within it a reflection on permanency. Mr Brownbill has commented that ongoing pain is likely to occur in a fluctuating manner indefinitely. Mr Hunt has observed that the plaintiff will have employment difficulties for the foreseeable future as a result of his injury, a remark which touches upon both capacity and permanency. In his more recent report Mr Hunt has stated that he does not believe that the plaintiff will be able to work in the future. Mr Shannon, examining on behalf of the defendant, was prepared to make an assessment of permanent impairment. He described the impairment as stabilised. Dr Davison, also examining on behalf of the defendant, observed that the plaintiff’s condition had stabilised and that he was likely to report persisting symptoms indefinitely. Bearing these opinions in mind, I am of the view that the consequences of the plaintiff’s injury will persist for the foreseeable future and are permanent within the meaning of the Act.

40        Pursuant to s.134AB(8)(h) of the Act, psychological or psychiatric consequences are not to be taken into account other than for the purposes of sub-paragraph (c) of the definition of serious injury. Clearly the plaintiff has suffered from depression over the years and continues to take medication in relation to this. I would also accept that, as stated by Dr Thomas, there is almost inevitably some emotional reaction in a situation such as this.

41        However, as stated, Dr Thomas emphasised the underlying organic aspects of the plaintiff’s presentation, stating that there have certainly not been any functional signs and that everything seemed to be very much in proportion to the underlying problem. He effectively described the plaintiff as “ticking all boxes” in that the plaintiff has the right history, and appropriate examination for the history and an appropriate examination for the investigations – see T 48.

42        Similarly, Mr Hunt commented that the plaintiff’s clinical presentation matches imaging findings and also noted that the plaintiff’s injury was consistent with his presentation. Whilst Mr Dooley observed that the plaintiff’s depressive illness was impacting on his presentation in that he tended to look on the gloomy side of all aspects of his life, he also pointed out that the plaintiff had suffered from depression prior to his injury. Mr Shannon, examining on behalf of the defendant, described the plaintiff as having genuine restriction of movement with some spasm. Mr Kierce, similarly examining, expressed the opinion that none of the plaintiff’s current symptoms were due to functional overlay, exaggeration, psychological or psychosomatic factors.

43        The plaintiff was referred for treatment to Dr Samir Ibrahim, consultant psychiatrist, who has seen him since 16 July 2010, and who has diagnosed depression and prescribed anti-depressant medication. Unfortunately Dr Ibrahim has very little history of the plaintiff’s pre-injury depressive episodes, which appear to have been of some magnitude. The plaintiff sees Dr Ibrahim every three months and also sees a counsellor approximately once a month. The plaintiff’s presentation in the witness box did not strike me as florid or as exhibiting the functional signs that even a lay observer can sometimes detect.

44        In summary, consequences of a psychological or psychiatric nature shall not be taken into account for the purposes of the application insofar as is based on sub-paragraph (a) of the definition but I am not satisfied that such consequences are of great magnitude. I prefer and accept the evidence of Dr Clayton Thomas who has had considerable contact with the plaintiff and who, particularly in his oral evidence, emphasised the organic basis of the plaintiff’s presentation. The overall picture may also be a little cloudy because of the plaintiff’s episodes of depression prior to the relevant injury.

(iv) The plaintiff’s employment and other developments since the occurrence of injury

45        I have already dealt with the plaintiff’s medical treatment since the injury. I have also referred to the fact that he returned to employment with the defendant on a restricted basis for a very short period. The plaintiff has undertaken two courses. In July 2009 he did a basic computer course and an occupational health and safety course at Preston TAFE in March 2010. The plaintiff obtained a Certificate IV in Occupational Health & Safety, having completed the course which required him to attend the TAFE once a week for a three hour session for some 15 weeks. The plaintiff said that he did not attend each session and, to use his words, he scraped through. The computer course which he did was reasonably basic and he does not possess a laptop or a computer at home, although he has access to one. Whilst the plaintiff has looked for some work, he has not applied for a job as an occupational health and safety officer, stating that he does not “really think that I’m up to scratch with it” – see T 112.

46        Various employment possibilities were put to the plaintiff in cross-examination, to which he frequently replied that he would “give it a go”, although also on occasions qualifying this with references to his lack of experience and the pain which he might suffer. The plaintiff is seeking approval to be able to visit the Parkville Juvenile Gaol for the purpose of talking to the inmates and counselling them in an endeavour to get them “to straighten their act up” – see T 25. The plaintiff will need police approval in order to do this and he has something of a police record which, whilst it might assist him in being able to speak in a credible fashion to the young offenders, may also present some difficulties. In any event, this is all very much a plan and whether it in any way would resemble paid employment seems highly doubtful.

47        The plaintiff has had some difficulties with the law, but these are of marginal relevance save that, in respect of those which have occurred since the injury, arguably they may have some bearing upon physical capacity or alleged restrictions of lifestyle. Prior to the relevant injury the plaintiff committed a number of driving offences which resulted in periods of suspension of his licence. Some of these occurred when he was in fact driving to and from places where he was working when he should not have been so driving. On 20 July 2008 he was charged with driving with a blood alcohol content in excess of .05 and his licence was cancelled for six months. The event occurred at night and the plaintiff had been socialising. He was also charged with assault in relation to an offence which occurred on 23 July 2008 at the Kealba Hotel when he became involved in a family dispute and placed another person in a headlock. He was fined in this regard. I might say the plaintiff stated frankly that he had been involved in episodes such as these “before I learned what mixing painkillers and alcohol does” – see T 91. He was also involved in a fight at a nightclub when he thought someone had stolen his wallet and was again picked up for drink driving in the early hours of the morning of 31 March 2010. He stated that he does not regularly attend hotels and nightclubs, that this was the first time he had been out for a long time and that he was in essence “letting off steam”. He has since had his driving licence restored. In January of this year he was charged with aggravated burglary, the details of which are somewhat confusing but seem to have involved him in being struck on the head with an iron bar. As I understand it this charge is on the verge of being withdrawn. He was also charged with using and possessing cannabis in 2009.

48        I regard much of this evidence as being of doubtful relevance other than in the context which I previously described, but as some emphasis was placed upon it in cross-examination, I have recounted it here.

Ruling

(i) Pecuniary loss damages

49

I am of the opinion that the plaintiff has discharged the burden of proof in relation to leave to bring proceedings for pecuniary loss damages. I have arrived at this conclusion for the following reasons which are not listed in order of importance or significance.

(a)

I am satisfied that the plaintiff has no capacity to return to the type of labouring work which he has done over the years. Essentially there is no dispute in this regard. As early as June 2008 Mr Kierce, examining on behalf of the defendant, was stating that the plaintiff’s future would lie in non-manual work. A little over a year later he was confirming that the plaintiff was not fit for his pre-injury employment. Dr Davison and Mr Dooley reported in terms of the plaintiff being able to participate only in lighter work, Mr Dooley stating that the plaintiff “would struggle to be employed in heavy physical work”. The treating general practitioner, Dr Levar, has stated in her report of 26 April 2011 that the plaintiff is not fit for pre-injury duties and only able to work within a range of restrictions. Dr Thomas is of a similar view, as is Mr Brownbill. In essence it is the opinion of Mr Hunt that the plaintiff is unfit for all employment. In summary, this man who earned his living performing physically demanding work, and essentially labouring, is now precluded from engaging in this.

(b)

In relation to “without injury” earnings, the plaintiff’s earnings varied considerably over the years. They included, for example, a gross annual income of $73,853 for the financial year 2004/05, a portion of which falls within the six year “window” referred to in s.134AB(38)(f). With the defendant, the plaintiff received an average gross weekly income of $1,624.58 (I would refer to the wage records produced and to the summary at p.95 of the plaintiff’s court book). This represents a gross annual figure for 52 weeks of $84,478.16. Such figure allows nothing for holidays, and it is to be remembered that the plaintiff essentially worked for labour hire companies, but then again arguably it demonstrates capacity as opposed to actual earnings. In any event, if it were felt that continually working 52 weeks per year would be a proposition that does not most fairly reflect the plaintiff’s earning capacity had the injury not occurred, and the number of working weeks per annum was reduced to 48, the resultant figure would be $77,979.84 without taking into account any possible post-injury salary increases.

The defendant argued that there is evidence in an attachment to the affidavit of Ms Elizabeth McLean, the manager of workplace rehabilitation with the defendant, that during 2009 the defendant was significantly affected by the global financial crisis, resulting in very few new projects being undertaken and those that were being small. Redundancies were carried out by the defendant in 2009, these involving approximately 40-50 per cent of Victorian employees. The plaintiff’s employment was officially terminated on 5 June 2009. It is the opinion of Ms McLean that the plaintiff’s employment with the defendant was unlikely to have lasted any length of time, and it was likely that he would have been made redundant in 2009. There was also a reference to the plaintiff’s performance being poor. There is some weight in Mr Tobin’s argument that the statement of Ms McLean in this and some other regards is of dubious weight because of its hearsay nature. Certainly statements in relation to the plaintiff’s performance such as “The feedback that I received at the time” do not inspire great confidence.

In any event, it was argued by Mr Moulds that, when assessing the “without injury” earnings, I should look at the evidence that within the six year “window” the plaintiff would have been retrenched. He submitted that I should look at all that occurred in the six year period. He argued that the figures revealed by the pay records do not represent “without injury” earnings because such figures would not have continued on throughout the six year period and therefore do not most fairly reflect the plaintiff’s capacity had the injury not occurred. If “capacity” in fact meant “maximum capacity”, the legislature would have used that language. Matters like the effect of the global financial crisis upon the building industry cannot be ignored and should be taken into account when considering what most fairly represents the situation had the injury not occurred. Further, it was argued, the six year period was introduced in order to confine speculation as to what might have happened or might not have happened for the very purpose of a situation such as this. The realities of what occurred within the six year period should be taken into account. In Acir v Frosster Pty Ltd [2009] VSC 454 Forrest J referred to contingencies that crystallise within the three year period after the injury. Further, it was argued, no evidence was put forward by the plaintiff in relation to the effects of the global financial crisis and any recovery that might have taken place in the building industry following it. It was submitted that in the particular circumstances of the manner in which “without injury” earnings should be calculated, and bearing in mind the need to obtain a reflection which is most fair, a proper approach would be to allow only the ordinary rate of pay without overtime or to average the earnings in the three years prior to injury and add four per cent per annum compounding over the three years after the injury. The latter way, it was submitted, might be fairest in that the plaintiff would have been faced with problems in the building industry in 2005 and 2006, and then enjoyed a bubble of good income with the defendant. It is also to be remembered that a figure which includes a large amount of overtime is misleading because of the above and because the plaintiff endeavoured to perform work which, because of his height, he was not physically able to do. However, it was argued, more importantly the redundancy likelihood should be factored into the calculation.

Mr Moulds went on to refer again to the decision in Acir, referring to the extract from the Second Reading Speech set out by Forrest J in paragraph 162 of that judgment. It was submitted that this supported a proposition that depletion of employment opportunities is to be taken into account. To quote Mr Moulds, “What is obviously good on one side of the ledger in that regard is good for the other side of the ledger…” – see T 154. It was further argued by him that this is a situation unlike that in State of Victoria v Rattray [2006] VSCA 145, in which case what was being considered was suitable employment as opposed to earnings. Further, in Acir his Honour dealt with the concept of both actual earnings and capacity to earn, as these are set out as alternatives in s.134AB(38)(f)(ii). His Honour also referred to whether, in the hypothetical situation, there would have been an increase or decrease in wages bearing in mind the prospects of promotion. However it is viewed, Mr Moulds submitted, the facts subsequent to the injury within the six year period are relevant. Reference is also made to paragraphs 174 and 175 of the judgment in Acir. Ultimately, the Court has to do its best to come up with a figure that most fairly reflects the loss of earning capacity, having regard to the fact that the plaintiff would have been made redundant in 2009. Mr Moulds submitted that the defendant had no objection to the Court taking in account the fact that there has been a recovery, at least to some extent, from the global financial crisis. It is a fair figure, omitting the overtime that was available during the “bubble”, at which the Court should arrive.

The contrary argument in relation to this point, and it is a point which certainly deserves considerable attention, was argued by Mr Tobin. His argument was to the effect that, if the submission on behalf of the defendant was correct, such things as the global financial crisis would only be taken into account in relation to section 134AB(38)(f)(ii) and not for (f)(i). However, it is capacity that is to be considered and concepts such as “suitable employment” do not have things such as the global financial crisis built into them. Capacity is what is important, and the plaintiff is entitled to be assessed as if he were one of the employees retained with the defendant, as opposed to one probably retrenched. Further, Mr Tobin drew the following example. If a person qualified as a neurosurgeon had not so practiced within the six year “window”, the potential earnings of a neurosurgeon could not be relied upon even though the person in question possessed the capacity to so earn. If, however, during that period the person in question exercised the earning capacity of a neurosurgeon, but had expressed the intention of taking time away from neurosurgery in order to do voluntary work, the period of this to commence immediately after the injury, it could not be said that the “without injury” earning capacity had been reduced to zero. Certainly, as discussed in Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121, a couple of weeks involving overtime work, which was a rarity, could be ignored when considering what fairly reflects an incapacity. In the present case the plaintiff worked overtime regularly and this should be taken into account in assessing capacity. Mr Tobin further argued that the possibility of retrenchment within 12 months of the injury should not be taken into account, this being a measure of the labour market rather than of capacity.

Further, he submitted, there exists a reverse evidentiary onus upon the defendant to raise specific alternative employment available for the plaintiff in the community when it is established that the plaintiff is incapacitated for pre-injury employment or for other suitable work that might be available with the defendant as employer – see Giankos paragraphs 115 and following. Whether or not the plaintiff would have been retrenched at some date after the occurrence of injury is not a matter which requires consideration by the Court. There was no necessity for evidence from the plaintiff as to what employment he might have obtained in 12 months time if he happened to be one of the group of people who had been retrenched. Submissions along these lines may be appropriate in a damages action, but not in a serious injury application. Further, it was argued, reference is made to the decision of the Court of Appeal in Roleff v Chubb Insurance Company of Australia Pty Ltd [2011] VSCA 21. In Roleff there was an absence of evidence as to any post-injury salary increase, and indeed such evidence as existed pointed to the fact that the plaintiff would not have gained the benefit of any increase. In the present case the agreed figures would show that there would have been an increase in the plaintiff’s earning capacity. It is agreed that the hourly rate of pay for someone performing the type of work in which the plaintiff had engaged had increased by 15.75 per cent over the three year post-injury period – see, for example, T 174. It was repeated by Mr Tobin that the test is earning capacity.

I have dealt with the competing arguments in relation to this point at some length because it is not one regularly encountered, although it has the potential to impact upon other cases, and because counsel had gone to considerable trouble to put before me detailed submissions including references to numerous authorities.

I am of the view that the arguments advanced by Mr Tobin are essentially correct, although, as shall be discussed, in this case it seems to me that the mathematics are such that the outcome of this particular argument may not have a great deal of bearing upon the result. However, as counsel for both parties obviously put a considerable amount of thought and preparation into the presentation of the competing arguments, I shall express my opinion.

Firstly, it seems to me that there is a marked difference between the amount of evidence available as the foundation for the argument advanced on behalf of the defendant in the present case compared with the evidentiary basis in Roleff. Basically, all that could be said in the present case is that, because of the global financial crisis, in 2009 up to half of its employees were made redundant by the defendant. That the plaintiff would probably have fallen into that category is in essence an assertion contained in a statement by the defendant’s manager of workplace rehabilitation to an investigator and based upon “feedback” received at the time of the injury from unnamed supervisors. Not only is this vague and unsatisfactory, but it is far from clear whether the employment situation prevailing in the economic climate of 2009 has altered and whether the defendant has resumed hiring labourers. Further, it is to be remembered that the plaintiff has obtained work through labour hire companies, and his earnings have not been confined to employment and earnings with one particular entity. All of this is in marked contrast with the situation in Roleff. The plaintiff Roleff was working pursuant to a particular contract, remuneration pursuant to which was effectively performance related. One of the factors under consideration was whether the income of the plaintiff would have increased in the post-injury period. In paragraph 34 of the judgment of the Court of Appeal there are lengthy extracts from the judgment at first instance in which are set out details of the almost voluminous material and evidence available in this regard. This led to the conclusion at first instance, a conclusion not varied by the Court of Appeal, that it was highly unlikely that the plaintiff would have earned an increased amount had he remained in employment with the defendant. Further, the plaintiff had resumed working in the insurance industry, and much hinged upon what he would have earned pursuant to the particular contract with the defendant, as compared with what he was earning elsewhere in the same industry. The distinction between the two factual backgrounds is significant.

Secondly, reference has been made to the decision in Acir. The judgment of Forrest J seems to me to emphasise clearly and repeatedly that it is capacity that is to be considered and that this is a limited enquiry which is not to be confused with the questions to be asked in a damages claim. I would refer in particular to the following extract from paragraph 175 of the judgment:

“It follows, I think, in the context of s.134AB(38)(f) that the question to be answered is not what would the injured worker have earned taking into account the supervening event, but rather, what was the worker’s ability to earn money in the workforce, taking into account his pre-injury state of health, level of employment and career opportunities as at the time of injury. The consideration of the period of the three years after the injury is confined to these matters.” (My italics)

The use of the word “opportunities” seems to indicate that his Honour had in mind such things as promotions, better positions and the like.

A supervening economic downturn occurring almost a year after the incident of injury, and as a result of which the plaintiff may or may not have been made redundant, and where such redundancy may have been temporary or permanent and the plaintiff may or may not have obtained employment elsewhere in the same industry (and particularly through a labour hire company) does not seem to me to fall within the matters to be considered as set out by Forrest J in Acir and as referred to above. True it is that his Honour also referred to matters such as the loss of employment opportunity and the availability of work (see, for example, paragraphs 167 and 175), but I am not of the view that the somewhat vague potential situation upon which reliance is placed in the present case falls within the list of matters to be considered as set out by his Honour. Were it not so, every time a worker was injured in the employ of a company or employer that subsequently went into liquidation or otherwise collapsed during the “window” period, the “without injury” figure could arguably be substantially decreased, even to zero. Surely the Act does not contemplate such an outcome when it is earnings from personal exertion, considered during the “window” period both before and after the injury, that most fairly reflects the worker’s earning capacity had the injury not occurred that is to be assessed.

In addition, such an approach would lend itself to the very capricious results referred to by Forrest J in paragraph 177 of Acir. If an economic downturn with redundancies strikes one day after the three year period, it would be disregarded. However, if such economic downturn impacted one day prior to the expiration of the three year post-injury period, arguably a worker’s “without injury” earnings can be substantially downgraded or reduced to zero. As said by Forrest J, such capricious results could not have been intended by the legislature.

In summary, and particularly bearing in mind that it is earning capacity that is to be considered, and, as stated by Forrest J in Acir, the enquiry to be made is limited, the issues involved are not to be confused with those which arise in a trial for damages. In summary, I prefer the arguments advanced by Mr Tobin.

(c)	In arriving at a figure for “without injury” earnings, and bearing in mind the importance of capacity, I am not of the opinion that overtime earnings should be disregarded or diluted. I agree with Mr Tobin that had there been, for example, overtime worked in an extraordinary situation and for a very short period, there could be a forceful argument that it should be ignored. That is not the situation here. The wage records reveal that the plaintiff worked regular and quite substantial overtime hours, the amount of which fluctuated, from the commencement of his employment with the defendant virtually until he began to experience difficulties because of his height when working on the mobile platform in early 2008. In other words, essentially he worked regular overtime hours until, virtually, the commencement of the relevant symptoms. I see no reason why earnings from overtime should be excluded from the calculation of “without injury” earnings.
(d)	There is no challenge to the proposition that the hourly rate for the type of work performed by the plaintiff increased by 15.75 per cent over the three year post-injury period. I was informed that this calculation was agreed. I am urged by Mr Tobin to take such increase into account and, if I did so, it would mean that, at the end of such period, his weekly earnings would have increased from $1,624.58 to $1,880. The alternative approach submitted by Mr Moulds (apart from looking only at ordinary time rate of pay without overtime) was to average the plaintiff’s earnings for the years 2005 to 2007 and then add four per cent a year compounding for the post-injury period. I am not quite sure as to the logic behind this approach, which would result in an increase over the three post-injury years of 12.49 per cent. I am more inclined to accept what is apparently the agreed increase figure of 15.75 per cent, although again the distinction between the two will not affect the outcome. If four weeks unpaid annual leave was again allowed, the gross annualised figure based upon a weekly wage of $1,880 (after applying the 15.75 per cent increase) would be $90,240. This seems to me to most fairly reflect the plaintiff’s earning capacity had the injury not occurred. It is to be remembered that in the financial year ending 30 June 2005 he had demonstrated the capacity to earn $73,853. In other words, whilst part of that financial year was outside the “window” period, he had demonstrated the capacity to be a high earner. This is consistent with him, some five to six years later, demonstrating the capacity to earn in excess of $90,000. I might add that, if the increase of 12.49 per cent was added to the plaintiff’s average pre-injury weekly earnings with the defendant, the end result would be $1,827.89 or an annual income of $87,738.72 for a 48 week working year.
(e)	I turn now to “after injury” earnings. I appreciate that it is the view of Mr Hunt that it is unlikely, for the foreseeable future, that the plaintiff will be able to work in either his pre-injury employment or earning alternative employment. However, I am of the view that the plaintiff does have some capacity for suitable work providing that a considerable number of restrictions are in place. I have referred to some of the observations of medical practitioners in this regard earlier, and in particular I would accept the restrictions imposed by Dr Thomas in relation to the need for the plaintiff to find a position that did not involve bending, lifting and twisting below waist height or above chest height and with lifting of not more than five kilograms involved. Further, I accept the evidence of Dr Thomas that the plaintiff is only fit for part-time work. The maximum of 24 hours per week suggested by Dr Thomas seems to me to be reasonable. This restriction is referred to in his report of 28 October 2010 and essentially he did not resile from it in his oral evidence. He made what I consider to be a minor concession that, in a hypothetical situation if the plaintiff was at a worksite that was reasonably accessible and there were no physical requirements, he could probably do more than 24 hours work per week as an occupational health and safety officer, a position which Dr Thomas believed was not suitable for the plaintiff in any event. As previously stated, Dr Thomas was an impressive witness who has had considerable dealings with the plaintiff and is a consultant in rehabilitation and pain medicine. In relation to this last-mentioned qualification, I would refer to paragraphs 96 and following of Giankos. I accept that the plaintiff’s maximum capacity for suitable employment is 24 hours per week.

Once it is found that the plaintiff is capable of only part-time work not exceeding 24 hours per week, the figures produced by the defendant in respect of various employment options would all be productive of a financial loss in excess of 40 per cent. If one took the suggested position of an occupational health and safety officer or inspector, which is by far the best paid of the suggested options, and allowed a 38 hour week for the full 52 weeks of the year (as opposed to 48 weeks in relation to the “without injury” earnings) the gross annual income would be $80,860. If this figure were to be reduced in order to make allowance for a 24 hour working week, the gross annual figure would be $51,069. When measured against the “without injury” gross annual income of $90,240, the financial loss would be 43.4 per cent. That is assuming that the position of a part-time occupational health and safety officer or inspector exists and that it is suitable employment within the meaning of the definition contained in s.5 of the Act. I might say that I have very considerable doubts in relation to this latter proposition, concerning which Dr Thomas also seemed to have major doubts – I would refer to T 66. It is also to be recalled that in the above calculations I am giving to the defendant the benefit of a full 52 week working year as a part-time occupational health and safety officer inspector as opposed to a 48 week working year as a casual labourer on a building site.

(f) Bearing in mind the evidence, the ingredients of “suitable employment” as set out in the definition contained in s.5 of the Act, and my observations of the plaintiff in the witness box and the impression made by him, I am not of the view that the position of an occupational health and safety officer or inspector, whether part-time or full-time, represents suitable employment. In particular, I am taking into account the plaintiff’s education, skills and work experience. He has “scraped through” a course which involved three hours per week of lectures for 15 weeks and described himself as being “pretty much in over my head” – see T 109. He also stated that he had not made any application for such work as he found it daunting and “Don’t really think that I’m up to scratch with it” – see T 112. I accept this and it coincides with the impression which I have formed of the plaintiff.

It may be that the plaintiff is capable of working on a part-time basis in a position such as a sales representative selling building products, this being another option suggested on behalf of the defendant. The salary for that position, being $1,058 per week or $55,016 per annum, when reduced to make allowance for a 24 hour working week, is productive of a financial loss well in excess of 40 per cent. The other five positions suggested on behalf of the defendant all pay wages which, without even making any reduction for part-time work, would produce the financial loss required by the Act.

(g)	In summary, I am of the view that when the appropriate comparison is made, the end result is that the plaintiff has a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
(h)	I have already dealt with the question of permanence. In my opinion the plaintiff will continue permanently to suffer the loss referred to above.

(i)         Accordingly, the plaintiff has discharged the burden of proof and is entitled to leave to issue proceedings for pecuniary loss damages.

(ii)       Pain and suffering damages

50        The plaintiff having established that he is entitled to leave in respect of pecuniary loss damages, he is then also entitled to leave in respect of pain and suffering damages. In this regard I would refer to the decision of the Court of Appeal in Advance Wire and Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170. I would also refer to the various decisions of this court to similar effect.

Conclusion

51        The plaintiff is successful. He has discharged the burden of proof. Leave is granted to him to bring proceedings in respect to both pain and suffering damages and pecuniary loss damages. I shall hear the parties as to any ancillary orders that are required.