Jonuzi, Emire v Grandiflora Nurseries Pty Ltd

[2009] VCC 1206

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MELBOURNE
WORKCOVER LIST

SERIOUS INJURY DIVISION

Case No. CI-07-04742

EMIRE JONUZI	Plaintiff
v
GRANDIFLORA NURSERIES PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE SHELTON
WHERE HELD:	Melbourne
DATE OF HEARING:	24 and 25 June 2009
DATE OF JUDGMENT:	13 November 2009
CASE MAY BE CITED AS:	Jonuzi, Emire v Grandiflora Nurseries Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 1206

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – serious injury application – s.134AB Accident Compensation Act 1985 – Chronic Pain Syndrome – no need to “disentangle” – grant of leave for recovery of damages for pain and suffering follows grant of leave for loss of earning capacity – Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 – Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 – Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G A Lewis SC with	Patrick Robinson & Co
Mr R C Forsyth
For the Defendant	Mr A W Sandbach with	Minter Ellison
Ms M Britbart
HIS HONOUR:

Introduction

1 This is an application by way of Originating Motion seeking leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of damages in respect of a lower back injury allegedly suffered by the plaintiff in the course of her employment with the defendant on 31 December 2001 (“the injury”). On that day, the plaintiff, whose back had been hurting for the previous week, experienced severe pain in her low-back when bending over and fell backwards to the floor (“the accident”).

2 S.134AB(19)(a) of the Act provides that I must not give leave to bring the proceedings unless satisfied on the balance of probabilities that the injury suffered was a “serious injury”.

3 S.134AB(37) of the Act, so far as relevant, defines “serious injury” as follows:

“serious injury means –

(a)	permanent serious impairment or loss of a body function
. . .
(c)	permanent severe mental or permanent severe behavioural disturbance or disorder.”

4          The body function relied upon by the plaintiff for the purpose of paragraph (a) is her lumbar spine.

5 The plaintiff seeks leave to bring proceedings in relation to consequences with respect to both pain and suffering and loss of earning capacity: see s.134AB(38)(b) of the Act.

6 S.134AB(38)(j) requires me to assess whether, at the present time, the plaintiff has a serious injury.

The Issues

7          It is not in issue that the accident occurred. What is in issue is the present extent of both the physical consequences and the psychological or psychiatric consequences of the injury.

8          Should I decide that the plaintiff has suffered a “serious injury” as defined in paragraph (a), there is no need for me to determine whether the plaintiff has suffered a “serious injury” as defined in paragraph (c).

The Plaintiff’s Evidence

9          The plaintiff relies upon two affidavits sworn by her on 12 June 2007 and 2 December 2008. She also gave viva voce evidence through an interpreter.

10        The plaintiff was born on 25 May 1973 in Macedonia, and thus is now aged thirty-six. She has never attended school. She came to Australia in October 1990 at age seventeen, and was married a week later. She has three children. She commenced work with the defendant in February 1995 and continued working there until the accident, apart from time off when her second and third children were born.

11        Following the accident, she was seen to be in considerable pain and crying, and was taken by ambulance to hospital. She attended her general practitioner, Dr Dennis Baldwin, of the Langton Medical Centre, Dandenong, on 2 January 2002. She states that she intended to return to work on light duties on 14 January 2002, but was only able to manage two days’ work. She then had severe back pain and received an injection at the Dandenong Hospital. It was noted that she had muscle spasms. She endeavoured to return to work during 2002 without success. She has not worked since September 2002. On 24 February 2003, she was taken to the Emergency Department at Dandenong Hospital with a flare-up of her condition and was then transferred to the Victorian Rehabilitation Centre where she spent several days as an inpatient.

12        The plaintiff states that presently she has severe pain in her lower back, with referral to her right leg and a pulling sensation. She also experiences pins and needles down the right leg, as well as pain in the left knee and leg. She currently takes Panadeine and Panadeine Forte to relieve the pain. She states that she cannot sit or stand for long periods. She states that she is limited in her social and everyday life, and is limited in the extent to which she can engage in domestic activities. Her husband, in an affidavit sworn 2 December 2008, has confirmed the veracity of the plaintiff’s two affidavits.

13        Under cross-examination, the plaintiff stated that her present symptoms were pain in the lower back and pain in her right leg. She cannot move her toes because of the pain. She says that on the odd occasion she has pain in her left leg, and in her right leg she has pins and needles, sharp pain, and sometimes it feels numb and very painful. She says she has not been to physiotherapy for some years. She stated that her mother-in-law, who lives with her, does most of the cooking and housework.

Medical and Like Evidence

14        As mentioned, the plaintiff consulted her general practitioner, Dr Dennis Baldwin, on 2 January 2002. She has consulted him regularly since then.

15        In a report dated 15 July 2003 to the plaintiff’s solicitors, Dr Baldwin states:

“No one has made an exact diagnosis of the nature of her injury, but rather have excluded disc prolapse, spinal derangement and progressive invasive disease such as tumours. ... I believe she is genuine in her presentation of her symptoms and can see no psychological overlay or secondary gain clouding the issue. In April 2003, I suggested she start a course of Avanza, an anti-depressant, as I felt her chronic pain was leading towards secondary depressive illness.”

16        In a report dated 25 November 2003 to the plaintiff’s solicitors, Dr Baldwin confirms that Avanza was prescribed for the plaintiff on 16 April 2003 and that in his opinion “she did have a degree of depression secondary to the constant pain of her back condition”.

17        His clinical notes for 14 July 2005 state that there was “no conscious exaggeration” in the plaintiff’s presentation. On several occasions he noted muscle spasm on the part of the plaintiff. His clinical notes of 6 May 2002 state “very convincing story of sciatica despite relatively negative MRI”.

18        In a report dated 7 October 2008 to the plaintiff’s solicitors, Dr Baldwin states:

“Mrs Jonuzi’s condition remains unchanged. She presents every few weeks with back and leg pain and stiffness which varies in severity, such that she reports she is sometimes immobilised by pain. In July 2005, she had an MRI of her lumbar spine which I believe showed L4-5 and L5-S1 disc desiccation.

...

Mrs Jonuzi presents as being frustrated and depressed by her ongoing symptoms and the lack of definitive treatment. My assessment is that she has a regional pain syndrome/fibromyalgia type pain syndrome secondary to her original low back injury. Her MRI shows disc desiccation at two levels and this is consistent with her original presentation. As noted in the original report, her CAT scan at that time was reported as normal. Evidence of disc disruption may not show on CAT scans initially and may take up to twelve months to show on MRI. The development of chronic pain syndromes is difficult to prevent and some individuals seem to be susceptible to this complication.

Over all, Mrs Jonuzi remains unchanged in the last five years and her prognosis of returning to work is poor.”

19        In a further report to the plaintiff’s solicitors of 27 March 2009, Dr Baldwin states:

“She attends approximately every two weeks for medication for her pain. She mainly reports lower back pain and a sensation of ‘deadness’ in her right leg especially. She reports her domestic and social activities are severely affected and her chronic pain is causing some interpersonal strains with her family. She does not appear capable of working in any productive capacity and reported struggles with routine household tasks.

For the foreseeable future I think her reported pain levels would preclude any meaningful employment in work to which she is suited. I do not believe she is exaggerating her symptoms nor is there any psychiatric illness. Chronic pain syndromes are a well established clinical entity.”

20        Physiotherapist, Gerald Lee, first saw the plaintiff on referral from Dr Baldwin on 14 January 2002 and treated her periodically thereafter. In a report of 2 July 2003, he states:

“On my first objective examination, she claimed intermittent sharp pain over the lower lumbar region, intermittent paraesthesia down left lateral limb to knee level. The range of movement of her lumbar spine was also limited.

21        He also states:

“Palpation and passive mobilisation reproduced her usual sharp pain and stiffness over the central L4-5 and L5-S1 IV joints and the associated facets, to a lesser extent the L1 to L3 IV region, there was a very marked muscle spasm over the lumbar region.”

22        Mr Neil Cullen, orthopaedic surgeon, saw the plaintiff on referral from Dr Baldwin on 25 February 2002 and again on 25 June 2002. In a report to the plaintiff’s solicitors dated 15 July 2003, he states that on examination on 25 February 2002 he found “severe protective muscle spasm”. He states:

“The CT scan [3 January 2002] showed very little in the way of pathology and an MRI scan [17 March 2002] was subsequently arranged which showed only minor disc bulging at the L4-5 and L5-S1 levels with a developmentally small spinal canal. ... Reviewing the CT and MRI information available, the only pathology present was mild bulging associated with presumed underlying disc degeneration at the L4-5 and L5-S1 levels with no evidence of frank or focal disc prolapse causing nerve root compression. ... At the time of last contact, the clinical presentation was that of an individual significantly incapacitated as a consequence of a soft tissue injury to the lower back and I would regard her as totally incapacitated at that point in time.”

23        Dr Clayton Thomas, consultant in rehabilitation and pain medicine, saw the plaintiff on 28 March 2002, 18 June 2002, 8 April 2003 and 5 August 2003. He states, in a report to the plaintiff’s insurer dated 19 July 2003:

“When I saw her she described pain across her lower back as her worst problem. She complained of pain down her right leg with associated paraesthesia and numbness. These symptoms were episodic. They usually occurred first thing in the morning or in the first two hours of the day. ... The cause for her back pain was not determined by the imaging that had taken place. It did have a mechanical feeling and therefore it was probably related to the facets or discs in her lower back. ... I would have thought that she would have difficulty returning to pre-injury employment. I would have thought that she would have difficulty repetitively bending even with light objects such as roses. ... It is likely that there will be a prolonged period of incapacity.”

24        In a further report of 18 September 2003 to the insurer, he states:

“I noted the presence of a number of non-organic signs. ... In the presence of no hard abnormal neurological signs and an unremarkable MRI, the problem seems to be more of a chronic pain syndrome than anything else.

This is not to say, that there may not have been a component coming from either the facets or the discs, but the predominant problem more than that, was that she was behaving not as a typical mechanical back ache.”

25        Mr Michael Pullar, neurosurgeon, saw the plaintiff in June 2002 on referral from Dr Baldwin. In a report of 6 June 2002, he states:

“On examination, she localises the pain to the low lumbar region (approximately L4-5). Spinal mobility is significantly restricted with moderately severe paravertebral muscle spasm. ... Her MRI scan shows moderate disc degeneration at L4-5 (without a specific annular tear being visible) and very mild degeneration at L5-S1. There is no significant disc protrusion and no significant nerve root compression.

It’s really hard to be sure as to the source of her pain – other than it is referred from the low-back region. It could be either disc, facet joint or musculo-ligamentous. The right lower limb pain does seem to be a referred pain, and the groin pain suggests that at least some component of the pain syndrome is mediated by the facet joints.”

26        He suggested referral to Dr Tim McCarthy, anaesthetist specialist, “for consideration of facet joint blocks and, possibly, radio-frequency facet joint denervations”. The plaintiff saw Dr McCarthy, but, according to Dr Baldwin, his treatment “made little difference to her recurrent exacerbations of severe pain”.

27        Dr Robert Gassin, musculoskeletal physician, saw the plaintiff in August 2004 on referral from Dr Baldwin. In a report of 4 August 2004 to Dr Baldwin, he states:

“Emire most likely has an underlying low lumbar disc problem and some of the pain is probably referred from this. However, formal examination findings are inconsistent with her observed level of function and mobility. This suggests that non-physical factors are in play. However this should not distract from our attempts to treat any correctable cause of pain.”

28        He suggested a referral to a psychologist specialising in pain rehabilitation.

29        Mr Peter Wilde, orthopaedic surgeon, first saw the plaintiff in March 2004 for the defendant’s insurer and then became a treating doctor.

30        Mr Wilde first examined the plaintiff on 25 March 2004. In a report of 28 March 2004 to the insurer, he states:

“She demonstrated many features of non-organic illness behaviour. ... The worker does not have a capacity to undertake pre-injury employment. ... Mrs Jonuzi has a very limited capacity to return to sedentary or light duties work. ... I believe she will be incapacitated for at least two years and perhaps as long as five years.

The diagnosis is mechanical lumbar back pain, secondary to L3-4 internal disc injury, without clinical radiological evidence of radiculopathy. ... It is likely that there was a degree of asymptomatic degenerative disc disease prior to this injury; however the injury caused further internal disc derangement thus precipitating symptoms. ... The prognosis is guarded and I expect that she will always suffer with low grade symptoms of chronic lumbar pain and stiffness.”

31        Mr Wilde was then forwarded, by the insurer, a report by Mr Anthony Buzzard, orthopaedic surgeon, dated 1 April 2004. He examined the plaintiff on 1 April 2004. It was his view that the plaintiff had probably suffered a strain to her low-back region, but that the accident was no longer contributing to her physical condition. He thought that the plaintiff was suffering from a functional, as against a physical, problem. Further, he thought that there was a suggestion of “functional overlay at a deliberate level”.

32        After Mr Buzzard had examined the plaintiff again on 5 November 2004, in a letter of 6 November 2004, he stated that the plaintiff appeared to be suffering from a functional rather than a physical problem, although he, on that occasion, did not find “functional overlay at a deliberate level”. He stated that the plaintiff’s incapacity for employment was dominated by non-physical considerations.

33        Mr Wilde was also forwarded a report from Mr John Hart, orthopaedic surgeon, dated 29 April 2004. He had examined the plaintiff on that day. In the report, Mr Hart stated that the plaintiff probably had a lumbosacral sprain with a gross supratentorial response. It was his view that she should be able to return to her previous work if her supratentorial problems could be overcome. He suggested psychiatric assistance for the plaintiff.

34        The receipt of the reports from Messrs Buzzard and Hart did not alter Mr Wilde’s views. In a report of 24 June 2004 to the defendant’s insurers (and he was not at that stage the plaintiff’s treating doctor), he states:

“ … there is a structural reason why Mrs Jonuzi is not capable of undertaking her former or any employment of manual work. The structural reason is mild internal disc injury at L4-5. She does have a capacity for sedentary work (although she has never done this type of work in the past and has minimal education or training that would facilitate such employment). In the short term, I don’t believe she could even do sedentary work although the situation will change over the next six months.”

35        When pressed as to his earlier comment that “she demonstrated many features of non-organic illness behaviour,” he states:

“This does not alter my opinion of work capacity. She does have a lumbar condition, which in time and with regular exercise will improve, although it may never completely resolve.”

36        In a report to the plaintiff’s solicitors dated 21 February 2006, Mr Wilde states that he had examined the plaintiff twice, on 31 January 2006 and 9 February 2006, on referral from Dr Baldwin. In general, he confirms the views expressed in his earlier reports. He states that:

“ … the degree of non-organic illness behaviour ... is impairing her recovery. ... It is my opinion that her employment resulted in aggravation of lower lumbar degenerative changes. ... It is difficult to explain the stated ongoing symptoms and stated lack of improvement over a period of five years on the basis of purely physical organic pathology. Perhaps the reason for the severity of her persistent pain is that she has developed a complex lumbar pain syndrome due to an abnormal neurological response with marked psychological overlay which further aggravates the symptoms. ... Mrs Jonuzi does not have a capacity to undertake pre-injury employment and she has a very limited capacity to return to sedentary or light duties work. I believe she will be incapacitated for at least two years and perhaps as long as five years.

She does have a lumbar condition, which in time and with regular exercise will improve, although it may never completely resolve. ... There is significant psychological embellishment of what I consider to be a minor longstanding degenerative lumbar condition. Further therapy should be directed heavily to this aspect of the problem rather than physical lumbar dysfunction.”

37        Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff on 17 November 2008 for the purposes of a medico-legal assessment at the request of her solicitors. In a report of that date to the plaintiff’s solicitors, he states:

“Your client suffers from unresolved aggravation of lumbar intervertebral disc degeneration. She has referred symptoms into the right lower limb. There are no clinical signs of radiculopathy. ... She presented with a number of non-organic physical signs. ... The physical injury is consistent with the stated cause. Mrs Jonuzi had pre-existing L4-5 and L5-S1 lumbar disc degeneration which compromised the integrity of these intervertebral discs and predisposed her to lumbar disc injury. ... The incident was not associated with discrete lumbar disc protrusion and there has not subsequently been evidence of neurological impingement. She has reported right lower limb pain from the time of the injury. Radiating pain is typical of discogenic pain and is not necessarily associated with nerve compression. … Her condition will persist as described with no prospect of improvement in the foreseeable future. … Her physical injury has permanently incapacitated her for pre-injury employment or alternative employment that involves prolonged static postures, bending, lifting and undertaking work that imposes stress on her lower back. The injury has also confined her to light domestic and recreational activities. ... Taking into account her occupational history and her current condition, I would regard her as totally incapacitated for work for which she is suitably trained and experienced.”

38        He again examined the plaintiff on 1 June 2009.

39        In a report of that date to the plaintiff’s solicitors, he states that the plaintiff’s:

“physical condition is now difficult to evaluate because of the somewhat overwhelming clinical signs of a non-specific chronic spinal pain syndrome.”

He states:

“Her clinical presentation of pain and disability is now greater than it was
when I last examined her which is a very poor prognostic sign.

Her physical injury would prevent her from undertaking physically based employment. ... Evaluation of her physical capacity for work is now difficult because of the deteriorating chronic spinal pain syndrome. In her current condition she is incapable of undertaking any employment and her situation is likely to persist indefinitely.”

40        Mr Simm also gave viva voce evidence. He stated that muscular spasm is a physical sign observed when a person flexes forward, and is usually a protective mechanism to avoid pain. He assumed that within the disc structure there was tearing or rupturing of the annular fibres which caused an internal disc disruption which could not be detected on an MRI scan. He conceded that in making this assumption he was heavily reliant on what he was told by the plaintiff, particularly as to her level of pain. He stated that an inconsistency of physical signs is typical of a person with a pain syndrome, and he now regards the plaintiff as having a residual physical injury combined with a reactive pain syndrome. He conceded that it was possible that her actual physical restriction was very small. In all the circumstances, he is of the view that the plaintiff probably has an ongoing underlying physical problem.

41        Mr Robin Jackson, consultant orthopaedic surgeon, examined the plaintiff on 11 November 2003 at the request of the defendant’s insurers. In a report of 17 November 2003, he expresses the view that the plaintiff sustained “some type of injury to her lower back, the nature of which is uncertain”. He was aware of the presence of non-organic factors. He expressed the view that at that stage the plaintiff was not suitable for any form of employment.

42        Mr Geoffrey Klug, neurosurgeon, examined the plaintiff on 7 April 2003 for the defendant’s insurers. In a report of 11 April 2003, he states that the plaintiff probably suffered a musculo-ligamentous injury involving her low-back, and that she appears to have developed a chronic pain syndrome in response to the initial injury. He stated that at April 2003, the plaintiff’s chronic pain syndrome would prevent her undertaking any form of employment. He was not able to say whether there would be any permanent impairment. He stated that he found the plaintiff “a sincere person”.

43        Mr B G Reid, surgeon, examined the plaintiff on 4 February 2002 at the request of the defendant’s insurers. In a report of that date to them, he states that as a result of the accident, the plaintiff had sustained a musculo- ligamentous injury to her lower back.

44        Dr David Fish, consultant occupational physician, examined the plaintiff for the defendant’s insurers on 18 September 2002. In a report of 23 September 2002 to them, he states that the plaintiff probably suffered some annular tearing of one of the low lumbar discs in the accident. He commented that the plaintiff appeared:

“... significantly more disabled than the underlying organic pathology would suggest. In fact she has developed some of the features of a chronic pain state and I am concerned that she has not adopted, or been encouraged to adopt, a more active exercise program in order to return to work at an earlier stage.”

45        Mr Hart re-examined the plaintiff in November 2008. At the time, he was not aware of the earlier examination. He conducted the examination totally independently of his previous assessment. He found that the examination findings were “absolutely identical” to those of four years previously. This suggests that the plaintiff was genuine in her presentation.

46        Finally, to complete the picture, I turn to consider psychiatric evidence.

47        Dr Edward Cole examined the plaintiff at the request of her solicitors on 15 October 2008 and 20 March 2009. It was his view that she was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood. He stated in a report of 27 March 2009 to the plaintiff’s solicitors:

“She remains more aware of and preoccupied by her pain and limitations
than might be the case if she had come to better terms with her injuries.”

48        He could find no evidence of exaggeration of her symptoms.

49        Consultant psychiatrist, Dr Timothy Entwisle, examined the plaintiff at the defendant’s insurer’s request on 10 November 2004. In a report of 18 November 2004, he states that the plaintiff did not have any psychiatric condition.

50        Dr Dush Shan, consultant psychiatrist, examined the plaintiff for the defendant’s solicitors on 15 October 2008 and provided a report of that date which indicates that he is of the same view as Dr Entwisle.

Discussion and Conclusions

51        The picture which emerges from the above medical evidence is that the injury suffered by the plaintiff in the accident was a relatively minor disc injury. For example, Mr Simm described it as “an internal disruption which cannot be detected on an MRI scan”. Still, it caused ongoing muscle spasm for some time after the accident and required visits to hospital for some months after the accident.

52        Further, there is medical evidence that the plaintiff is still suffering physical consequences of the injury. As noted, this is the opinion of Mr Simm.

53        Some eighteen months or so after the accident the plaintiff developed non- organic symptoms resulting from the accident. These symptoms developed, and the preponderance of medical opinion is that she is now suffering a chronic pain syndrome.

54 In considering the application I note, of course, the provisions of s.134AB(38)(h) of the Act.

55        Mr Lewis, Senior Counsel, who with Mr Forsyth appeared for the plaintiff, submitted that the medical condition of the plaintiff here was somewhat similar to that of the plaintiff in Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167. He particularly relied upon the judgment of Ashley JA, at paragraphs [139]-[164].

56        Although the High Court gave leave to appeal in Jayatilake on 29 May 2009, both parties proceeded on the basis that Jayatilake was still applicable law in Victoria. I also note that Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, which was decided on 28 July 2009, that is after leave to appeal to the High Court was granted, considered Jayatilake as good law in Victoria: see Footnote 2.

57        Also pertinent is the comment of Buchanan JA in Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230, where His Honour stated, at paragraph 25:

“This was not a case that required the disentangling of the effects of physical and psychiatric conditions. Rather, the question was whether or not the respondent suffered from complex regional pain syndrome, which did have an organic or physical basis ... I consider that the medical evidence taken as a whole warranted the conclusion that the respondent’s foot injury produced a complex regional pain syndrome, that is, real, chronic and disabling pain, which was physical, not psychiatric, in origin ... .”

58        Here too, I am of the view that the injury “produced a complex regional pain syndrome, that is, real, chronic and disabling pain, which was physical, not psychiatric, in origin”.

59        The plaintiff was not, in my view, shaken in cross-examination, and I accept her as an honest witness. Medical examiners did too. I refer to the comments of Doctors Baldwin and Cole and my comments upon the two examinations by Mr Hart.

60        Mr Sandbach, who with Ms Britbart appeared on behalf of the defendant, submitted that the injuries suffered by the plaintiff were relatively minor, that is now completely resolved and that the plaintiff’s present condition was functional rather than organic.

61 However, s.134AB(38) requires me to focus on the consequences of the injury upon the plaintiff.

62        As to the plaintiff’s capacity for employment, Dr Baldwin and Mr Simm have expressed the view that some years after the accident, the plaintiff is not suitable for any form of employment, whether manual or sedentary. Given the plaintiff’s lack of education and the evidence that she cannot read a newspaper either in Albanian or English, that in English she can only write her name and address, I agree that she is not fit for any form of employment and that this is permanent.

63        I conclude that the plaintiff at present has no working capacity and that this is permanent. There has clearly been a loss of earning capacity in excess of 40 per cent.

64 The plaintiff has clearly satisfied s.134AB(38)(e), (f) and (g). The plaintiff has also, in my view, satisfied s.134AB(38)(b) and (c), so far as loss of earning capacity consequences are concerned.

65        Having so found, in accordance with Advanced Wire & Cable Pty Ltd v Abdulle (supra) at paragraph 63, I also find that the plaintiff has suffered a “serious injury” with respect to pain and suffering consequences.

66        Having found that the plaintiff has suffered a “serious injury” as defined in paragraph (a) with respect to both pain and suffering and loss of earning capacity, there is no need for me to consider whether the plaintiff has suffered a “serious injury” within the meaning of paragraph (c).

67        I give leave to the plaintiff to issue proceedings for the recovery of damages with respect to both pain and suffering and loss of earning capacity.

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