Luo v Australian Clothing Company Pty Ltd
[2014] VCC 259
•4 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03260
| LIU PING LUO | Plaintiff |
| v | |
| AUSTRALIAN CLOTHING COMPANY PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3, 4 and 5 March 2014 | |
DATE OF JUDGMENT: | 4 April 2014 | |
CASE MAY BE CITED AS: | Luo v Australian Clothing Company Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 259 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering and loss of earning capacity consequences – injury to neck – whether the consequences of such injury are “very considerable”.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Watts v Rake (1960) 108 CLR 158.
Judgment: Leave granted to the plaintiff to commence a proceeding claiming damages for pain and suffering and loss of earning capacity in respect of injuries suffered by her in the course of her employment with the defendant between August 2007 and April 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Moulds SC with Mr M Clarke | Zaparas Lawyers |
| For the Defendants | Mr I Gourlay | Wisewould Mahoney Lawyers |
HIS HONOUR:
1 Liu Ping Luo alleges that she suffered injury to her neck in the course of her employment with the defendant between August 2007 and April 2009. She seeks the leave of this Court to issue a proceeding to recover pain and suffering and loss of earning capacity damages in respect of that injury.
2 Her right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that she has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as a “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of Ms Luo’s cervical spine.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33 at paragraphs [18] to [19]
6 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering or loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[3]
[3]Section 134AB(38)(c)
7 With respect to loss of earning capacity damages, leave is not to be granted by the Court unless, in addition to her establishing that the consequences of her loss are at least very considerable, she also establishes that, at the date of the hearing of the application, she has suffered a loss of earning capacity of 40 per cent or more calculated in accordance with ss(38)(e), (f) and (g).
8 Ms Luo submits that the pain and suffering and loss of earning capacity consequences of her injuries can fairly be described as being more than significant or marked and at least very considerable. The defendant denies this is so.
9 The matters in issue and to be determined in this application are:
(a)What injury has Ms Luo suffered to her neck?
(b)Can the pain and suffering and/or loss of earning capacity consequences of such injury be fairly described as being “at least very considerable”?
(c)Has she suffered a loss of earning capacity of 40 per cent or more when measured in accordance with s134AB(38)(e), (f) and (g) of the Act?
Background
10 Ms Luo is aged fifty-four. She was born in China and migrated to this country in 1991. From soon after her arrival, she worked as a machine operator, and later at a newsagency which she operated with her husband.
11 Ms Luo commenced work with the defendant in August 2007 as a machine operator. She ceased work as a consequence of the injuries the subject of this application in April 2009 and has not worked since.
12 Her work with the defendant involved operating embroidery machines. It was fast and repetitive work.
13 Approximately six months after she commenced employment with the defendant, Ms Luo began to experience pain in her right hand. Her hand began to shake and felt weak. Her right elbow also became sore. She attributed this to exerting a lot of force in placing hats in a frame. She began to have difficulty with simple tasks such as pushing a button.
14 By late April 2009, her right-hand pain became worse. She attended on Dr Yu, who had been her general practitioner since her arrival here in 1991. He arranged a CT scan of her cervical spine. His clinical notes do not make any reference to neck pain or referred symptoms in the right upper limb until she saw him on 24 April 2009. On that occasion, Dr Yu recorded “Chronic painful neck with numbness of fingers”.
15 In June 2009, Ms Luo commenced attending upon a different general practitioner, Dr Chiang. She was aware that he offered treatment by way of acupuncture and physiotherapy, whilst such treatment for her neck and arm was not available through Dr Yu. She continued seeing Dr Yu for other general medical matters.
16 Dr Chiang has certified Ms Luo unfit for work since April 2009, describing her injury as “W/C neck injury with cervical spine disc protrusion and reactive depression”.[4]
[4]Plaintiff’s Court Book (“PCB”) 102
17 Ms Luo had physiotherapy with a Ms Poon until August 2010, when the claims agent ceased funding such treatment.
18 In July 2011, Dr Chiang referred Ms Luo to a neurosurgeon, Professor Richard Bittar and soon after she underwent an MRI scan.
19 At about the same time, Dr Chiang referred her to a psychiatrist, Professor Tan. She was diagnosed by him as suffering from severe depression.
20 In January 2012, Professor Bittar recommended that Ms Luo undergo investigations by way of a right C6 nerve sheath injection with local anaesthetic and steroids, together with a review by a pain specialist, Dr Richard Sullivan. Funding for such treatment was sought from the claims agent but was refused.
21 The following month, Ms Luo was advised that all WorkCover benefits were terminated, including medical and like expenses. Accordingly, the investigations recommended and requested by Professor Bittar were never carried out. Similarly, her treatment with Professor Tan did not continue.
22 Since that time, Ms Luo has continued to see Dr Chiang on a regular basis but has received no other specific treatment.
Diagnosis of injuries
23 A CT scan taken on 27 April 2009 was reported as showing:
(a)At the C5‑6 level, moderate asymmetric broad disc protrusion which impinged slightly on the right anterior aspect of the spinal cord;
(b)At C6‑7, mild posterior disc bulging which did not contact the spinal cord.
24 The MRI scan of 6 July 2011 was reported as follows:
(a)Intervertebral disc height loss and desiccation at C4‑5 and C5‑6;
(b)At C5‑6, central protrusion and disc osteophyte complex which contacted the central cord, resulting in mild central canal and mild bilateral neural exit foraminal stenosis;
(c)At the C6‑7 level, minimal right paracentral protrusion indenting the thecal sac and just avoiding contact with the cord, central canal and neural exit foramina patent;
(d)The conclusion by the radiologist was:
“1.Disc osteophyte complex at C4/5 results in moderate right neural exit foraminal stenosis and thus mass effect upon the exiting right C5 nerve.
2.Central protrusion and disc osteophyte complex at C5/6 results in mild right neural exit foraminal stenosis and thus mass effect upon the exiting right C6 nerve.”[5]
[5]PCB 84-5
25 Those scans were directly examined by a number of medical practitioners. That is, the actual scans were viewed rather than merely relying on the radiologist’s report.
26 Professor Bittar examined the MRI scan and concluded that there was a focal kyphosis at the C5‑6 level with right-sided foraminal stenosis at that level, together with degenerative changes at the C5-6 and C6-7 levels. His conclusion was consistent with that of the radiologist. He considered that there had been an aggravation of cervical spondylosis and that it was likely that Ms Luo’s right-arm pain was emanating from the C5‑6 level.
27 Professor Brazenor also examined the scans. He considered that the scans (allowing for differences when comparing a CT scan with an MRI scan) were identical and normal for a woman of Ms Luo’s age. In his report of November 2013, he said that both scans showed a loss of cervical lordosis in the supine position in which she was scanned, and a very mild central disc bulge at C5‑6. He did not think that the slight central prominences at the C4‑5 and C6‑7 discs could be called protrusions, however mild. He considered there was no significant central canal stenosis.
28 In his report, when referring to the radiologist’s report of the July 2011 MRI scan, Professor Brazenor omitted any reference to the radiologist’s conclusion that:
“Central protrusion and disc osteophyte complex at C5‑6 results in mild right neural exit foraminal stenosis and thus mass effect upon the exiting right C6 nerve.”[6]
[6]PCB 80
29 That omission was, to my mind, significant. In his oral evidence, towards the end of a lengthy cross-examination, Professor Brazenor for the first time referred to what he said was an inconsistency in the radiologist’s report - that was, that in the body of the report, the radiologist had referred to mild bilateral neural exit foraminal stenosis, whereas in the conclusion, he had referred to a mass effect upon the exiting right C6 nerve. No reference had been made to any such inconsistency in any of Professor Brazenor’s reports.
30 Both Professor Brazenor and Professor Bittar gave oral evidence and were cross-examined at length.
31 I found Professor Bittar to be a witness who presented his opinions in a measured and considered manner. He readily acknowledged that experienced and competent medical practitioners might have different views concerning the diagnosis of a patient’s injury or symptoms. In contrast, Professor Brazenor seemed unwilling to concede that any competent practitioner could have views differing from his own. An example was Professor Brazenor’s comments on Professor Bittar’s report of February 2012 in which he expressed the view that there was a reasonable chance that Ms Luo would require surgical intervention. Professor Brazenor’s response to this was to suggest that any experienced neurosurgeon who expressed such a view ought not to be practising. Professor Brazenor was also belatedly critical of the radiologist who reported on the July 2011 MRI scan.
32 Professor Brazenor expressed the opinion that Ms Luo’s allegation of continued pain for more than four years after ceasing work was “simply untenable”.[7] He regarded her behaviour during his examination of her as “simply bizarre”.[8] He did not consider that she presented with a bona fide cervical soft-tissue injury. Further, he considered that DVD surveillance films tendered showed her to have a normal range of neck movements and an ability to move her right arm for gesticulating, inspecting items on shelves, and transferring produce. He considered that she suffered “no significant injury whilst in the employment of Australian Clothing Company”.[9] Those opinions were not universally shared by other doctors who examined her.
[7]Defendant’s Court Book (“DCB”) 105
[8]DCB 105
[9]DCB 105
33 Where Professor Bittar’s views were contrary to those of Professor Brazenor, I preferred those of Professor Bittar.
34 In March 2011, Mr Jonathan Hooper, surgeon, was of the view that Ms Luo had evidence of degenerative disc disease in her cervical spine, together with some pressure on the C6 nerve root on the right-hand-side, notwithstanding that there was an emotional response to her pain problem. He was of the view that it appeared that the problem occurred in the course of her work. He thought that she would be quite unable to return to her pre-injury duties.[10]
[10]DCB 43-5
35 Mr Hooper reviewed Ms Luo in October 2011, having seen the radiology report concerning the July 2011 MRI scan referred to previously. At that time, he thought that she had developed right-sided brachialgia and neck pain and had evidence of significant degenerative disc disease. He thought that it could be argued that her work had aggravated a pre-existing constitutional problem, but as she had not worked for some time, the aggravation had ceased. He thought that her problems were due to age-related degenerative disease in her neck.[11]
[11]DCB 46-9
36 In August 2011, Dr Kostos, rheumatologist, considered that Ms Luo, by the time her symptoms began, had well-established disc degeneration and osteoarthritis in her cervical spine which had not been caused or accelerated by her employment. It was his view that MRI scans generally could not reveal the cause of neck pain.
37 Mr Roy Carey, orthopaedic surgeon with a stated special interest in low-back pain, saw Ms Luo in March 2012. He had personally examined the MRI scan of July 2011 and the radiologist’s report concerning it, and stated:
“Apart from the cervical flattening/kyphosis in the mid-cervical region I would otherwise agree with the report.”[12]
[12] DCB 68
38 Mr Carey’s view was that Ms Luo had chronic neck and back pain with right upper-limb symptoms but no radiculopathy. He thought there had been an aggravation of cervical spondylosis with right upper-limb symptoms. He did not find myelopathy. His opinion was that she suffered a right-sided C6‑7 disc protrusion/herniation in the course of her work as described to him. This was sufficient to produce typical neck and right upper-limb symptoms, but was in the absence of specific radiculopathy. He thought that, for various reasons, she had gone on to develop non-organic signs of abnormal illness behaviour. He specifically disagreed with the opinion of Dr Kostos wherein he had said that the disc degeneration and osteoarthritis of her cervical spine was not caused or accelerated by her employment. Mr Carey thought that Dr Kostos had ignored the MRI findings concerning C6‑7 which, in his opinion, suggested resolution of a right-sided C6‑7 disc protrusion/herniation, quite likely to have caused her complaints. He strongly disagreed that Ms Luo had never had any significant physical pathology.
39 In July 2012, Mr Justin Hunt, orthopaedic and spinal surgeon, was of the view that Ms Luo appeared to be in obvious pain, had reduced cervical lordosis, and had suffered an injury to her cervical spine with a C5‑6 disc prolapse and right-arm radicular pain. He considered that she had right upper-limb pain and loss of function.[13]
[13]PCB 52-3
40 In May 2013, Dr Yong considered that Ms Luo had an onset of neck and upper-limb pain which was likely to have commenced with a discal injury. This had been complicated by the development of a psychological co-morbidity.
41 In June 2013, Mr Rodney Simm, orthopaedic surgeon, had also personally reviewed the MRI scan and concluded that there were degenerative changes at the C4‑5 and C5‑6 levels and degenerative disc desiccation and posterior disc osteophyte complexes. He thought that pathology was unlikely to cause nerve-root impingement. In describing the radiologist’s report, Mr Simm omitted the radiologist’s comment that there was mild right neural exit foraminal stenosis and thus “mass effect upon the exiting right C6 nerve”.[14] He thought her condition was predominantly due to non-organic and/or psychological factors. He thought that her employment was responsible for initiating and aggravating symptoms from pre-existing constitutional degenerative pathology, and that there had been no recovery from those symptoms. He thought that although her physical condition was now obscured by non-organic and/or psychological factors, it was not possible to state that she had made a full symptomatic recovery from degenerative cervical pathology.
[14]PCB 85
42 There is no suggestion that Ms Luo had any symptoms of neck pain prior to the commencement of her employment with the defendant. Her evidence is that symptoms of neck pain commenced gradually in the course of that employment, reaching a point in April 2009, when she sought medical attention and was certified unfit for work.
43 Despite the evidence of pre-existing degenerative changes at various levels of her cervical spine, there was no evidence that Ms Luo would inevitably have suffered the symptoms of which she complains, regardless of her employment duties. Insofar as the defendant submits that Ms Yuo’s asymptomatic cervical spine would have inevitably become symptomatic (as suggested by Mr Hooper), I consider the defendant carries the onus of proving that that would have occurred.[15] I am not satisfied it has discharged that onus.
[15]Watts v Rake (1960) 108 CLR 158
44 On the balance of probabilities, I find it likely that, in the course of her employment with the defendant, she has suffered an aggravation of pre-existing but asymptomatic degenerative changes in her cervical spine resulting in the symptoms of which she complains – namely, persisting neck pain with referred right-arm pain. It is likely that this involved a C6/7 disc herniation with pressure on the C6 nerve.
45 Some practitioners expressed the view that her symptoms should have resolved within a reasonably short period of time following cessation of employment. Under cross-examination Professor Brazenor conceded that in the case of “most” persons such symptoms would resolve. However, my task is not to consider what would occur in most cases. It is to determine what has happened in Ms Luo’s case. Whilst it is possible that her symptoms have resolved over the years since she ceased work, I do not find it a probability.
46 In addition to physical injuries, Ms Luo alleged that she had suffered from a “serious injury” within the meaning of part (c) of the definition of that term in the Act. She alleged that she had suffered a permanent, severe mental or permanent, severe behavioural disturbance or disorder.
47 Her treating psychiatrist, Professor Tan, considered that she was suffering from severe depression which had arisen from her persistent neck pain and loss of function of her right upper limb. His formal diagnosis was one of a severe Adjustment Disorder with marked depressive features.
48 In March 2011, Dr Dharwadkar, psychiatrist, considered that Ms Luo was suffering from a mild Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered that her physical injury and chronic pain condition were still a cause of that condition. On review in October 2011, he considered that she had worsened emotionally in the previous six months, and made a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought there had been a psychological amplification of pain, and elements of chronic sick role, which demonstrated that she was unwell through “illness behaviour”.
49 In July 2011, Dr Chiang referred Ms Luo to a psychologist, Joanna Zhu. Ms Zhu diagnosed Ms Luo as suffering from severe reactive depression and anxiety in relation to physical injury and the previous two years’ experience of being left in an uncertain position regarding treatment, future work, life direction etc. The major contributing factors to her psychological state appeared to be her physical injury caused at work, her loss of identity as a capable worker, a severe language barrier and lack of understanding of the WorkCover system, her need for psychological counselling which had not been picked up or followed through, and lack of an appropriate treatment plan. She said that Ms Luo had felt lost, frustrated, angry and distrustful.
50 In August 2011, Dr Stephen Stern, psychiatrist, considered that Ms Luo was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, and that such state was related to her work injury of April 2009 and the continuing pain thereafter. He thought that she should be treated with anti-depressant medication.
51 Dr Timothy Entwisle, psychiatrist, saw Ms Luo in July 2013 on a medico-legal basis. He diagnosed her with a major depressive illness, and considered her prognosis was guarded.
52 As a matter of diagnosis, I consider it likely that, as a consequence of injuries suffered in the course of her employment, she has developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
Consequences of injuries
53 Psychological or psychiatric consequences of a physical injury are only to be taken into account for the purposes of paragraph (c) of the definition of “serious injury” and not for the purposes of paragraph (a).[16]
[16]Section 134AB(38)(h)
54 Here, Ms Luo claims to have suffered a “serious injury” as defined in both paragraphs (a) and (c) of the definition. I have found that she has suffered both a physical injury to her spine and also a psychological injury in the form of an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
55 In assessing the consequences of her physical injury, I take into account Ms Luo’s evidence of pain and the way that it has interfered with her life. This obviously involves an assessment of the truthfulness of her evidence.
56 Much of the hearing was occupied in the showing of six DVD films depicting Ms Luo on four occasions in 2011, in February and August 2012, and finally in February 2014. The first four of these DVD films had been shown to a number of doctors whose opinions were in evidence.
57 Counsel for the defendant placed considerable emphasis on the films. He submitted that they showed Ms Luo conducting herself on the dates on which she was filmed in a normal manner that was inconsistent with her claims of pain, restriction of movement and reduction in her general activities.
58 I have carefully reviewed the films. I find that they depicted Ms Luo performing minimal activities, none of a strenuous nature. Mostly, she was shown walking slowly with her husband at what I describe as a slow, strolling pace. At times she was observed walking arm in arm with her husband – sometimes using her right arm, but sometimes her left. Her neck and upper limb movements were modest at best. She did not flex or extend her neck other than minimally. Lateral movements were not observed. She was seen at times to rotate her neck left and right to approximately 30 to 45 degrees. She did not grimace or show any overt signs of pain. On occasions, she squatted to inspect items in shops at a low level but this did not involve any significant movement of her neck. From time to time, she moved her right arm, for example, to point at something. She did not use her arm to perform any action of extravagance or vigour.
59 Ms Luo has been examined by doctors in connection with this proceeding. In the main, on such occasions, she demonstrated little movement of her neck and right arm.
60 Ms Luo claims to have suffered chronic neck and arm pain for more than five years. The films depicted her on the six occasions referred to previously. Whilst I agree that her neck and arm movements were something more than negligible on those occasions, I do not conclude that her movements were indicative of exaggeration, lack of honesty or lack of genuine injury on her part. In short, I do not consider that the DVD films were, in any significant way, inconsistent with Ms Luo’s affidavit or oral evidence.
61 In addition, the defendant conceded that it had arranged for surveillance of Ms Luo on a further five dates between August 2011 and July 2012 for periods of five hours or more on each of those occasions and had not observed her outside her home at all.
62 I accept that her neck and arm movements shown in the films were probably greater than those shown to some examining doctors on other dates. However, insofar as doctors gave evidence that the films in some way demonstrated that Ms Luo moved in a pain-free manner, inconsistent with injury, I do not accept that evidence. I consider that the limited and modest activities depicted in the films do not warrant such a conclusion.
63 In the end, I am largely dependant on Ms Luo’s evidence in determining the extent of her symptoms and the consequences to her of her injuries.
64 Ms Luo gave her evidence through an interpreter. That is not uncommon in personal injury cases involving a person who was born and raised outside Australia. Where an interpreter is involved it is often difficult to form a view concerning a witness’ reliability. Nevertheless, here, I have formed the view that she was attempting to give her evidence in a straightforward manner and with honesty. It may be that on some occasions when examined by doctors she demonstrated a range of movement that was less than on the occasions she was filmed. However, I take into account that she is a person with limited education, few English language skills and little familiarity with the medical or the legal professions. I have no doubt that examinations by doctors in connection with this application would be a stressful and uncomfortable experience for her. I conclude that, in a more relaxed situation, she would probably have been able to show a range of movement that was a little greater than that apparently displayed in examination. However, I do not conclude that she deliberately attempted to mislead doctors or the Court.
65 I do not consider that the DVD films advanced the defendant’s case. Nor, on the other hand, did they assist Ms Luo in establishing the extent of the consequences of her injuries.
66 I am satisfied that the consequences of her neck injury are:
(a) She suffers from constant pain in her neck which radiates into her right arm.
(b) Her levels of pain require her to take regular analgesic medication.
(c) She has difficulty using her right arm in performing even relatively light tasks, although I do find that she has some use of it.
(d) Her right arm is relatively weak compared with the left.
(e) She is unable to perform most household tasks requiring use of both arms.
(f) She has difficulty cooking, an activity she used to enjoy.
(g) She is unable to engage in knitting, crocheting and overlocking, activities she enjoyed before her injury.
(h) She has difficulty sleeping and is regularly woken by neck and arm pain.
(i) Whilst she did not play competitive sport pre-injury, she did enjoy social snooker and badminton before her injury. She is no longer able to engage in those activities.
(j) She has difficulty driving for more than short distances.
(k) She has some difficulty with some aspects of dressing herself.
(l) She regularly requires treatment from her general practitioner, Dr Chiang.
67 On the basis of all of the medical evidence, I find, on the balance of probabilities, that these consequences are physical consequences of Ms Luo’s neck injury. I accept the medical evidence of a number of doctors that there is a pathological explanation for her ongoing pain. On balance, I find that the pain and disability alleged by her have a substantial organic basis.
68 I find, on the balance of probabilities, that those consequences are permanent, in the sense that they are likely to continue for the foreseeable future.
69 I am satisfied that those pain and suffering consequences of her physical injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as being more than significant or marked and as being at least very considerable.
70 With regard to loss of earning capacity, again there were differing medical opinions.
71 Dr Yong and Mr Simm considered Ms Luo had a capacity for light work with restrictions in lifting and the use of her right arm.
72 Professor Brazenor considered she had no restrictions whatsoever and was fit for all forms of full-time employment. This view was unsurprising, as he had found her to have suffered no organic injury, a view I have rejected.
73 In July 2013, Ms Luo’s general practitioner, Dr Chiang, considered she was totally unfit for employment.
74 Professor Bittar has consistently been of the view that Ms Luo was permanently incapacitated for employment as a machine operator with negligible capacity for suitable employment. These views were expressed before and after he viewed DVD films depicting Ms Luo.
75 I prefer the evidence of Professor Bittar and Dr Chiang. The latter has an advantage over all of the other doctors whose evidence was before the Court. He has seen Ms Luo on numerous occasions since June 2009 and continues to see her regularly. He would be ideally placed to determine the extent of her symptoms and her capacity for employment, and I accept his evidence.
76 In reports of March 2012, Mr Carey was equivocal as to Ms Luo’s capacity for work.[17] The views of Mr Francis, Mr Hooper, Dr Kostos, Dr Rowe, Mr Hunt and Ms Poon are all expressed some three years ago or more and are of lesser assistance to my assessment of her current work capacity.
[17]DCB 71
77 Taking all of the evidence into account, I am satisfied, on the balance of probabilities, that Ms Luo has no capacity for suitable employment at present and that that incapacity is permanent, in the sense that it is likely to continue for the foreseeable future.
78 I am satisfied that her loss of earning capacity is such that it satisfies the test laid down by ss(38)(c). Further, I am satisfied she has suffered a loss of earning capacity of more than 40 per cent. Prior to her injury, she had a capacity for a wide range of physical employment. As a consequence of the injury to her spine, I am satisfied she has lost that capacity.
Conclusion
79 For the reasons set out above, I am satisfied that Ms Luo has suffered a “serious injury” as defined in the Act.
80 There will be leave pursuant to s134AB(16)(b) of the Act for her to commence a proceeding to recover damages for pain and suffering and loss of earning capacity in respect of injuries suffered by her in the course of her employment with the defendant.
81 I shall hear the parties in respect of consequential orders sought.
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