Miftari v Victorian WorkCover Authority
[2013] VCC 830
•25 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-05535
| FLUTURIJE MIFTARI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January 2013 | |
DATE OF JUDGMENT: | 25 June 2013 | |
CASE MAY BE CITED AS: | Miftari v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 830 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – application brought within time – psychiatric condition
Legislation Cited: Accident Compensation Act 1985, s135A
Cases Cited:AEP Industries Australia Pty Ltd v Mahmoud (2007) 17 VR 144; Humphries v Poljak [1992] 2 VR 129; Papercorp Pty Ltd v Nicolaou (Howden v Ansett Australia) [2006] VSCA 143; M & J Rawlings Builders and Contractors v Rawlings [2010] VSCA 306; Smith v Canberra Press Pty Ltd [2009] VSCA 200; Edwards v McSaveney [2005] VSCA 252; Paget v JLT Workers Compensation Services Pty Ltd & Anor (2005) 12 VR 692; Cranbrook School v Stanley [2002] NSWCA 209; Commonwealth of Australia v Smith [2005] NSWCA 478; Pattison v Herald & Weekly Times Ltd [2013] VSCA 121.
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Verduci Lawyers |
| For the Defendant | Mr N Chamings | Thomsons Lawyers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s135A of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with The Alfred Hospital between June 1986 and April 1997.
2 The plaintiff brings this application pursuant to paragraphs (a) and (c) of the definition of “serious injury” to be found in s135A(19) of the Act. However, the plaintiff relied upon paragraph (c) of the definition of “serious injury”.
3 There, “serious injury” is defined as meaning:
“(c)severe long-term mental or serve long-term behavioural disturbance or disorder.”
4 The plaintiff has suffered a severe psychiatric reaction to the contraction of the Hepatitis B virus.
5 The plaintiff relied upon two affidavits, sworn 26 June 2011 and 21 February 2012. The plaintiff was not cross-examined. In addition, reports and other material which were referred to me in submissions were tendered in evidence. I have read all the material referred to in submissions.
The Issue
6 Counsel for the defendant accepted that the plaintiff did have a “serious injury” pursuant to s135A(4) of the Act, and that employment with The Alfred Hospital was a contributing factor.[1] However, counsel for the defendant submitted that the s135A application was not made within the relevant time period. The s135A application was issued on 29 June 2011. The relevant date three years prior to 29 June 2011 for the purposes of s135AC(b) is 29 June 2008. The defendant submitted that the plaintiff’s injury satisfied the definition of “serious injury” and the plaintiff knew it prior to 29 June 2008. Accordingly, she is barred from bringing this application.
[1]s135A(2)
Relevant Legal Principles
7 Under s135AC(a) of the Act, any application for determination pursuant to s135A(2B) must be issued before 1 September 2000. The plaintiff’s application was not issued until 29 June 2011 and is therefore, prima facie, out of time, and she is precluded from bringing proceedings against the defendant. However, under s135AC(b) of the Act:
“… if the cause of action arose before 12 November 1997 and the incapacity arising from the injury was not known until after 12 November 1997 …”;
the plaintiff may bring her application provided she does so –
“… before the expiration of three years after the date the incapacity became known.”
8 Thus, the plaintiff must prove, the onus being upon her, that prior to 29 June 2011, she was not aware of the serious consequences of the injury arising from her pre-November 1997 employment.
9 In AEP Industries Australia Pty Ltd v Mahmoud,[2] the Court of Appeal accepted on appeal that s135AC(b) involved a two-step process: first, the trial judge must identify what the injured worker in fact knew in relation to his injury at the relevant time; and second, whether those facts constituted knowledge of serious injury incapacity as explained in Humphries v Poljak.[3]
[2](2007) 17 VR 144
[3][1992] 2 VR 129
10 As Ashley JA, with whom Maxwell ACJ and Nettle JA agreed, stated in Papercorp Pty Ltd v Nicolaou:[4]
“It is for the judge hearing a s 135A(4)(b) application to decide what the worker knew about the extent of and probable duration of his or her incapacity arising from the compensable injury at a particular time; and, always assuming that what the worker knew represented the truth of the situation, whether what the worker knew fitted the template of serious injury incapacity, that template involving elements of fact, degree and value judgment.”
[4]Howden v Ansett Australia [2006] VSCA 143, at paragraph 50
11 Further, Ashley JA stated[5] that the “knowledge of incapacity arising from the injury may be either constituted by pain and suffering, or pecuniary disadvantage or both”.
[5]Papercorp Pty Ltd v Nicolaou (supra) at paragraph [33]
12 The issue for determination is what was the plaintiff’s knowledge of the extent and probable duration of her incapacity arising from her psychiatric injury as of 29 June 2011? What is relevant is the plaintiff’s knowledge of facts which, when viewed objectively, constitute a “serious injury” pursuant to s135A of the Act. In this case, it is whether the symptoms of which the plaintiff was aware at the relevant time would have been perceived objectively, at that time, as incapacity arising from severe mental or permanent severe behavioural disturbance.[6]
[6]M & J Rawlings Builders and Contractors v Rawlings [2010] VSCA 306 at paragraph [49]
13 As Beach AJA said in Smith v Canberra Press Pty Ltd:[7]
“… successive decisions of this court have established, the fact that a worker does not know that his injuries constitute a serious injury is not relevant for the purposes of s 135AC. What is relevant is knowledge of facts which, when viewed objectively, constitute serious injury incapacity. By the same reasoning, a lack of awareness that a worker had a cause of action arising from the injuries the subject of an application under s 135A has no bearing when considering whether the application under s 135A(2B) was brought within time or not.”
[7][2009] VSCA 200 at paragraph [11]. See also Redlich JA’s judgment in AEP Industries Australia Pty Ltd v Mahmoud (supra)
14 Thus, the knowledge is not knowledge of serious injury, but rather knowledge of “incapacity arising from injury”.[8]
[8]Edwards v McSaveney [2005] VSCA 252
15 Knowledge means the subjective knowledge of the worker, not suspicion or knowledge as objectively assessed.[9]
[9]Paget v JLT Workers Compensation Services Pty Ltd & Anor (2005) 12 VR 692 at paragraphs [26] and [29]
16 While the knowledge is the subjective knowledge of the plaintiff, it is not her “subjective value judgment” of incapacity[10] which is to be taken into account.
[10]Papercorp Pty Ltd v Nicolaou; Howden v Ansett Australia (supra)
17 As Nettle JA said in Papercorp:[11]
“There is a long way between Callaway JA’s man of fortitude and a man or woman who beyond fortitude or for some other reason deliberately closes his or her eyes to the obvious; … .”
[11]at paragraph [5]
Legal Background
18 On 22 October 2008, the plaintiff instructed and retained Shine Lawyers in relation to her injury.[12]
[12]PCB 21E paragraph 12 of the Defence
19 On 29 June 2011, the plaintiff’s current solicitor applied for a serious injury determination from the Victorian WorkCover Authority (“the Authority”). On 26 October 2011, Thompsons Lawyers, acting for the Authority, informed the plaintiff’s solicitor:
(i) that the Authority accepts the plaintiff does have a serious injury pursuant to s135A(4) of the Act for the injury the subject of the application; and
(ii) that the plaintiff does not satisfy the provisions of s135AC, as the serious consequences of the injury were known to the plaintiff more than three years prior to the submission of the application.
20 On 17 November 2011, the plaintiff filed the current proceedings.
21 In July 2011, the plaintiff commenced proceedings in the Supreme Court against Shine Lawyers alleging that that firm failed to issue an application under s135A(4).
22 On 30 November 2011, DLA Piper, solicitor for Shine Lawyers in the Supreme Court proceedings, wrote to the plaintiff’s solicitor stating that the plaintiff’s right to make an application pursuant to s135A(2)(B) of the Act is preserved and will not expire until 8 December 2011 as the plaintiff did not suffer incapacity for work until 9 December 2008.[13] Consequently, the plaintiff was within time to apply pursuant to s132A(2)B for a determination in respect of her Major Depressive Disorder and therefore not precluded from bringing proceedings for common law damages.
[13]PCB 21A
23 Accordingly, the plaintiff’s application before me is to mitigate her loss in the context of the proceedings which she has commenced against her former solicitor.
The factual background
24 The plaintiff migrated to Australia in 1975. In 1984, she commenced employment as a cleaner at the Queen Victoria Hospital. In 1986, she commenced employment as a cleaner at The Alfred Hospital. She then worked as an assistant nurse, and then as an orderly. In 1997, she was retrenched. Her work at The Alfred Hospital involved cleaning of patients’ rooms, ward areas and furniture. She had contact with patients, as well as the by-products of patient treatment, including disposable needles and other materials.
25 In 1998, the plaintiff commenced employment with Drake Personnel Ltd and was allocated to The Royal Melbourne Hospital as a cleaner.
26 On 16 February 1999, a blood sample was taken from the plaintiff because she was feeling tired and lethargic.
27 From 15 May 2000 she was employed by The Royal Melbourne Hospital as a cleaner and was allocated to the Infectious Diseases Laboratory. Her duties involved cleaning the laboratories, sweeping, mopping and buffing floors throughout the building, including toilet and bathroom areas, occasionally picking up test tubes, picking up microscopic glass slides from the floor and placing them into wet paper bags.
28 In May 2007, the plaintiff commenced work in the Infectious Disease Laboratory in North Melbourne working with polio samples. On 23 May 2007, she was advised to have a polio injection. A blood test was taken which disclosed the plaintiff as being Hepatitis B core antibody positive. She was shocked by the discovery and was referred to a consultant hepatologist, Dr Nicoll. The plaintiff was advised that her condition remained controlled but by reason of the Hepatitis B virus within her system, she was at risk of developing cirrhosis of the liver, liver failure and potentially liver cancer.
29 The plaintiff developed a psychological reaction to the contraction and sought medical assistance from her general practitioner and a psychologist.
30 It was initially thought that the plaintiff’s exposure to Hepatitis B occurred while working at The Royal Melbourne Hospital. On 1 February 2008, the blood sample taken on 16 February 1999 was re-tested and was found to be Hepatitis B positive, which indicated the plaintiff contracted the virus when employed by The Alfred Hospital.
31 On 13 March 2008, the plaintiff reduced her hours of work because of her psychological symptoms.
32 In December 2008, the plaintiff ceased work because of her psychological symptoms.
33 On 6 January 2010, the plaintiff’s employment was terminated.
The Plaintiff’s evidence
34 The plaintiff deposed that in May 2007 she was informed she was Hepatitis B positive. Since December 2007 she has been treated by a psychologist, Mr Karamanos, and has continued to struggle with the psychological impact of her condition. She has brooded over the fact that she has a potentially fatal illness and fears becoming seriously ill as a result of the Hepatitis B infection. Her sleep patterns are disturbed. Her depression has led her to cry and withdraw from family and social activities. Her sexual relationship with her husband has ceased since the time of her diagnosis. She no longer engages physically with her family; for example, hugging or kissing her children or grandchildren because of fears about the virus. She worked full-time hours. Mr Karamanos, in conjunction with Dr Sheriff, recommended a reduction in her hours of work and she worked three days a week until December 2008, when she ceased work because of fatigue, lethargy and psychological symptoms of depression.
The medical evidence
Mr John Karamanos
35 Mr Karamanos, treating psychologist, provided reports dated January, March, July and December 2008 and July 2009. He commenced treating the plaintiff in December 2007 on referral from her general practitioner, Dr Sheriff. The plaintiff reported feelings of tiredness, fatigue, depressed mood, impaired concentration, low self-esteem and social withdrawal resulting from the diagnosis of Hepatitis B. The plaintiff was concerned that her husband, children and grandchildren may have been infected through their contact with her.
36 In January 2008, Mr Karamanos said the positive Hepatitis B result had created significant distress and anxiety for the plaintiff, who thought she may have infected her husband and children with a life-threatening disease. He diagnosed the plaintiff as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood and also with a generalised Anxiety Disorder. It was his opinion the plaintiff was psychologically fit to perform her normal duties on reduced hours. He said she will require ongoing psychological treatment of fifteen sessions of one hour for Anxiety and Depression. He said that it was too early to make any predictions about treatment efficacy and said the plaintiff’s prognosis was guarded.
37 On 13 March 2008,[14] Mr Karamanos said the plaintiff was having significant difficulty coping with her full-time work and felt that a reduction in her hours to part-time work was indicated. He confirmed that he had spoken with the plaintiff’s general practitioner, who agreed that the plaintiff would benefit from working her normal duties in a part-time capacity.
[14]The date on the report is March 2007; however, it was agreed that was an error in the report and the report was in fact prepared in March 2008.
38 In July 2008, Mr Karamanos reported that the plaintiff’s reduced working hours assisted her in coping with her work duties but said she reported tiredness and fatigue by the end of the day. He did not change his opinion or diagnosis from his January 2008 report. He said she will maintain her heightened depressive and anxiety symptoms to a moderate to moderately severe levels. The plaintiff is psychologically fit to continue on her current working schedule. Her prognosis must be guarded.
39 In December 2008, Mr Karamanos said that the plaintiff was having “significant difficulty focusing on her duties as a result of the constant tiredness and lack of energy”. He said the plaintiff “is at present psychologically unfit to perform any work duties”.
40 In June 2009, Mr Karamanos reported the plaintiff “is psychologically unfit for her pre-injury duties or any other type of work as a result of her moderately severe depressive and anxiety symptoms and depleted energy levels”.
Dr Andrew Jakobovits
41 On 18 April 2008, Dr Jakobovits, gastroenterologist, reported to the insurer and said he thought it was more likely that the plaintiff acquired the Hepatitis B infection from The Alfred Hospital between 1986 and 1997 in view of the fact that she had more patient contact at that hospital than anywhere else. He said it was by no means certain.
Dr A A Sheriff
42 In July 2008, Dr Sheriff, general practitioner, reported to the Accident Compensation Conciliation Service. He said that while the plaintiff’s claim mentioned the date of injury as May 2007, that was when she lodged her claim. He said the status for Hepatitis B antedates this because there was no specific injury around those dates and the blood test of a sample of 2000 was positive. He confirmed that the plaintiff remained depressed and had not been able to return to full-time work. He confirmed that she will require psychological treatment for the foreseeable future, that she suffered insomnia, weightloss and was being prescribed medication of Cipramil, 20 milligrams daily.
43 Certificates of Capacity were provided by Dr Sheriff from 13 March 2008 to 18 November 2008 confirming that the plaintiff was fit for alternative duties eight hours per day, three days per week. Dr Sheriff provided Certificates of Capacity from 10 December 2008 to 12 July 2011 confirming that the plaintiff was unfit for any duties.
Dr Albert Kaplan
44 In March 2009, the plaintiff was referred by her general practitioner to Dr Kaplan, psychiatrist, for psychiatric treatment.
45 On 29 March 2009, Dr Kaplan reported to her general practitioner that the plaintiff had developed an obsessive fear that she might infect family members. The fear had a major impact on her life and she experienced a range of somatic symptoms. She reported experiencing difficulty coping with her work as a result of her condition; she reduced her hours in April 2008 and finally ceased work in December 2008.
Submissions
46 It was submitted by counsel for the defendant, that before the cut off date of 29 June 2008, the plaintiff was suffering significant consequences that she was reporting to doctors and had reduced her hours of work by 40 per cent. By December 2007, the plaintiff was receiving treatment from a psychologist, Mr Karamanos. In a report dated 18 January 2008, he described the plaintiff’s symptoms of:
·brooding and preoccupation with negative thinking, particularly obsessive thoughts relating to infecting her family members with the Hepatitis B virus;
·sleeping difficulties;
·depressed mood with frequent crying;
·diminished concentration;
·forgetfulness;
·loss of interest in pleasurable activities;
·feelings of tiredness and diminished energy levels;
·diminished confidence and self-esteem.
47 Mr Karamanos said the plaintiff was currently psychologically fit to perform her normal duties on reduced hours. He described her prognosis as guarded.
48 Counsel submitted that this was consistent with what she had told Dr Kaplan in March 2009. Further, counsel referred to her affidavit and submitted that she deposed that –
“Mr Karamanos in conjunction with my local doctor Mr Sheriff, recommended a reduction in my hours of work for the remainder of my work. Until December 2009, I was working three days a week.”
49 That is a misstatement of what the plaintiff deposed to in her affidavit. The plaintiff said in her affidavit:
“… Mr Karamanos in conjunction with my local practitioner Dr Sheriff recommended a reduction in my hours of work and for the remainder of the period of my work until December 2009 I was working three days a week.”[15]
(my emphasis).
[15]Plaintiff’s Court Book at page 18, paragraph [15]
50 The plaintiff is stating what in fact occurred.
51 Counsel for the plaintiff submitted that the deterioration in the plaintiff’s level of function, both assessed in terms of pain and suffering and in terms of earning capacity, was not spontaneously “severe” following the blood test result of 1 February 2008, but rather a gradual loss of function. Counsel referred to the plaintiff’s earlier diagnosis with the Hepatitis B virus, her attendances on Mr Karamanos from December 2007 and her reported gradually increasing problems with sleeping, feelings of tiredness and diminished energy levels; diminished concentration; depressed mood; anticipatory anxiety and pre-occupation; forgetfulness; loss of interest in pleasurable activities; diminished confidence and self-esteem.
52 On 30 July 2008, Mr Karamanos was reporting that the plaintiff remained psychologically fit enough to continue her current work levels but by March 2008 she had reduced her work levels by 40 per cent from five days a week to three days a week. It was not until December 2008 that the plaintiff was forced to cease work because of fatigue, lethargy and depression.
Analysis of the evidence
53 The issue for me to determine is whether the application was brought by the plaintiff within time. I must consider the plaintiff’s knowledge of the extent and probable duration of her consequences arising from her psychiatric injury as of 29 June 2008. The burden of proof is on her to satisfy the Court that prior to 29 June 2008, she did not know of the incapacity arising from the injury, which may be either constituted by pain and suffering or pecuniary disadvantage, or both.
54 In this case, the serious injury is said to be a severe long-term mental or severe long-term behavioural disturbance or disorder. Such an injury cannot be approached or regarded in the same way as a physical injury.[16] The Court of Appeal said that when a Court is considering a claim by a plaintiff who is suffering a disease, be it mental or physical, of which the existence and consequences were only ever capable of being revealed by expert diagnosis, it is only when and if the worker is so diagnosed that it can be said that facts are known sufficient from which objectively to discern that the worker has suffered a compensable injury.[17]
[16]Cranbrook School v Stanley [2002] NSWCA 209 at paragraph [68] (Heydon JA); Commonwealth of Australia v Smith [2005] NSWCA 478 at paragraph [16]
[17]Pattison v Herald & Weekly Times Ltd [2013] VSCA 121 at paragraph [37]
55 In determining the state of the plaintiff’s knowledge in this case, I have considered her affidavits, the histories she has provided to various medical practitioners and the opinions of various doctors, particularly treating doctors over the relevant time. I have also considered the Certificates of Capacity provided by the plaintiff’s general practitioner and a statement made to an investigator for the purpose of a WorkCover claim. The plaintiff did not give evidence viva voce.
56 In December 2007, the plaintiff reported to her psychologist, Mr Karamanos, symptoms of brooding and pre-occupation, sleeping difficulty and tiredness, diminished energy, frequent crying, forgetfulness and diminished concentration. Further, she reported to Mr Karamanos that she was demoralised to the point where she ceased driving, hugging her children and grandchildren, and her sexual relationship with her husband ceased after May 2007. As at December 2007, the plaintiff was being prescribed medication for anxiety.
57 By January 2008, the plaintiff knew that she had a psychological injury. She reported consequences to Mr Karamanos and Mr Karamanos diagnosed her as suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood and also with a generalised Anxiety Disorder as a result of the discovery that she had contracted Hepatitis B.
58 In January 2008, Mr Karamanos said the plaintiff was fit for normal duties on reduced hours and her prognosis was guarded.
59 However, the plaintiff believed that the symptoms she suffered were as a result of her employment with The Royal Melbourne Hospital. It was not until February 2008, that the plaintiff knew that the Hepatitis B diagnosis was as a result of her employment between June 1986 and April 1997 with The Alfred Hospital, the defendant in this application.
60 In March 2008, Mr Karamanos said the plaintiff required ongoing psychological treatment for her injury. He reported:
“She appears to have significant disabilities coping with full time work and I feel that a reduction in her hours, to part time work is indicated. I have spoken with Mrs Miftari’s GP, Dr Sheriff, and he also shares my view that Mrs Miftari will benefit from working her normal duties in a part time capacity.”
61 In March 2008, Dr Sheriff commenced providing Certificates of Capacity for eight hour days, three days per week.
62 I accept that by March 2008, the plaintiff was suffering a loss of earning capacity of 40 per cent. Her work had been reduced from five days a week to three days per week. She was aware in March 2008 that she did not have the capacity to perform her normal duties. In July 2008, Mr Karamanos reported that the reduced hours of work assisted her in coping with her work duties but she reported tiredness and fatigue by the end of the day.
63 The plaintiff’s evidence was that she has continued to struggle with the psychological impact of her condition since she was diagnosed. She regularly consulted her general practitioner and psychologist and was prescribed medication for her condition, including anti-depressant medication.
64 Although the question I must determine is what the plaintiff herself knew of the long-term future of her condition at the relevant time, I consider that the contemporaneous opinions of doctors are relevant as important indicators of what the plaintiff was likely to have been advised at the time, and of assistance in assessing what she was likely to be thinking about her condition.
Pain and Suffering
65 I accept that prior to 29 June 2008, the plaintiff knew that she had a psychological/psychiatric condition of an Adjustment Disorder with Mixed Anxiety and Depressed Mood and also with a generalised Anxiety Disorder. However, I am not satisfied that she had knowledge at that time that her incapacity arising from the injury constituted by pain and suffering was long-term.
66 There was no evidence by the plaintiff or her medical witnesses that she was being told anything about the long-term effects of her injury.
67 The plaintiff was not cross-examined and did not depose to her knowledge as to the long-term future of her condition in her affidavit. The medical reports of Mr Karamanos did not refer to this aspect. In January 2008, Mr Karamanos said “Her prognosis was guarded”.
68 On 14 July 2008, in a report to the Accident Compensation Conciliation Service, Dr Sheriff said the plaintiff would require psychological treatment for the foreseeable future. However, that was after the cut-off dated of 29 June 2008.
69 Accordingly, I am satisfied that prior to 29 June 2008, the plaintiff had no knowledge of the long-term future of her injury as constituted by pain and suffering.
Pecuniary Loss
70 Counsel for the defendant submitted that in March 2008, on the recommendation of Mr Karamanos and Dr Sheriff, the plaintiff reduced her hours of work by 40 per cent, as she did not have the capacity to perform normal duties, which was within her knowledge prior to 29 June 2008. Accordingly, the plaintiff had the requisite knowledge of her pecuniary loss and satisfied the serious injury incapacity.
71 I accept that the evidence is that, from March 2008, the plaintiff reduced her work hours to 24 hours per week on the recommendation of Mr Karamanos and Dr Sheriff, as she did not have the capacity to perform normal duties.
72 I accept that prior to 29 June 2008, the plaintiff knew that she suffered a 40 per cent loss of earnings incapacity. However, I am not satisfied on the evidence before me, that she had knowledge that the loss of earning capacity of 40 per cent was long-term. Prior to 29 June 2008, there was no evidence from any medical witness or the plaintiff that she was being told about the long-term effects of her loss of earnings incapacity.
73 Prior to June 2008, there is no evidence that the medical witnesses took the view that the plaintiff’s reduction in her work hours was long-term. Accordingly, I accept the submission of the plaintiff’s counsel that the plaintiff’s deterioration in her level of function both assessed in terms of pain and suffering and in terms of earning capacity was not spontaneously “severe” following the blood test result of 1 February 2008.
74 Accordingly, I take the view that the plaintiff was not aware of the serious injury incapacity as explained in Humphries v Poljak[18] arising from her pre- November 1997 employment prior to 29 June 2008.
[18]Supra
75 Accordingly, I grant the plaintiff’s application.
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