Ozunlu, Azmi v Toyota Motor Corporation Pty Ltd

[2009] VCC 1765

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-00269

AZMI OZUNLU	Plaintiff
v
TOYOTA MOTOR CORPORATION PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE KINGS
WHERE HELD:	Melbourne
DATE OF HEARING:	25 and 26 November 2009
DATE OF JUDGMENT:	18 December 2009
CASE MAY BE CITED AS:	Ozunlu, Azmi v Toyota Motor Corporation Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 1765

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – Serious Injury application – mental disorder – whether pain and suffering consequences severe – whether loss of earning capacity attains 40 per cent level.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J A Riordan with	Zaparas Lawyers
Mr R H Stanley
For the Defendant	Mr C J Blanden SC with	Minter Ellison Lawyers
Ms D E Galbally
HER HONOUR:

1          In this proceeding, the plaintiff seeks leave to commence proceedings at common law seeking damages arising out of an incident which occurred in the course of his employment with the defendant on 26 August 2003.

2 The plaintiff was employed by the defendant as an assembly worker at the Altona North premises. On 26 August 2003, he was working on the chassis line 1. He was bending down to pick up an elastic band. As he was straightening up, his head made contact with a screw gun held by a fellow employee. The screw went into the plaintiff’s scalp, in the skin on the back of his head. It is the plaintiff’s case that as a result of the incident he has suffered a permanent severe mental behavioural disturbance as defined by subsection (c) of the definition of “serious injury” appearing in s.134AB(37) of the Accident Compensation Act 1985 (as amended) (“the Act”).

3          The plaintiff seeks leave to claim damages against the defendant both with respect to pain and suffering and economic loss consequences of the accident.

4          In bringing the application, the plaintiff relies upon two affidavits dated 25 September 2008 and 3 August 2009.

5          In his first affidavit, the plaintiff deposes that:

• He is thirty-six years of age, born in Australia but returned at the age of three to Cyprus with his mother and brother, where he was educated to Year 7 level, then commenced work as a welder for six years. He returned to Australia in 1996, had periods of employment and unemployment and commenced work with the defendant in 2002. He worked long hours, the work was strenuous and it had to be performed at a fast rate.

• Prior to the injury he had been employed doing ironing and sewing work in a clothing factory and for periods as a welder/fabricator and as a plasterer.

• The incident was a frightening experience and he was worried that if the screw was removed from his head he might die.

• On the day of the incident, he attended the Alfred Hospital where X- rays and CT scans were performed. Under local anaesthetic the screw was removed and a single stitch inserted. He was discharged a few hours later.

• On 28 August 2003, he consulted his general practitioner, Dr Uluca, who prescribed painkilling and anti-inflammatory drugs. Later he removed the suture and referred him to a psychologist, Ms Ozturk, in October 2003.

• He returned to work the day after the incident and continued to work with difficulty. He was worried about working under cars as he feared he might hit his head and aggravate his injury. He was anxious and irritable and found it uncomfortable working eight hours on the production line whilst standing in the same spot. He was moved to the engine line where he helped three co-workers which gave him greater freedom to move. He encountered difficulties coping and concentrating on the new job. He was nervous, suffered sweats and difficulties in sleeping. In March 2004, he was told by his employer to stay at home until he improved. He was terminated in November 2005.

• He was receiving medical treatment on a regular basis (once per week) from Dr Uluca, who prescribed anti-depressants, Cipramil and subsequently, Effexor, and referred him in March 2004 to a neurologist, Professor Helme. He saw Ms Ozturk on a weekly basis, who provided counselling, which helped him cope.

• Following the incident, he suffered numbness and a burning sensation in his head, headaches and continues to be anxious and depressed. He was tearful, irritable and had outbursts of anger. He had difficulty concentrating, suffered from loss of confidence and self-esteem. He had difficulty in sleeping. He found it difficult to enter into a meaningful relationship and a pre-accident relationship broke up. He had thought about suicide. He lacks energy and motivation and finds difficulty in performing normal household chores. He is limited with outdoor activities. Because he is bad-tempered, he upsets friends. He has become withdrawn.

6          In his second affidavit, the plaintiff:

• provided a work history prior to employment with the defendant;

• stated he saw the psychologist on a fortnightly basis and his general practitioner every month or so;

• described his daily life and how he is affected;

• outlined his attempts to obtain employment.

7          The plaintiff, in cross-examination, said that he resumed work the day after the incident and went to the doctors after work because he had headaches. He was frightened that something was going to happen to the back of his head. He was given a medical certificate. He has been looking for work, but once prospective employers knew he was on WorkCover, no one would employ him. He has obtained a truck licence and sought accreditation to drive a commercial passenger vehicle and/or private bus.

8          The plaintiff, in re-examination, said he was a confident and strong man prior to the incident. He ceased work because his employer told him to go off work. He has been looking for work since.

9          The plaintiff impressed me as a very sensible and genuine witness.

The Plaintiff’s Medical Evidence

10        The plaintiff relied on medical evidence from his general practitioner, Dr Uluca, who had treated him since 1997, and a psychologist, both of whom have had regular contact with the plaintiff since the incident. Dr Uluca gave evidence at trial.

11        The medical evidence relied upon by the plaintiff may be summarised as follows:

Dr Uluca

(i)	Dr Uluca, the plaintiff’s general practitioner, reported on 20 November 2003 that the plaintiff presented to him on 28 August 2003 complaining of headaches, tingling over his head, being uptight and a painful left upper arm as he had had an adult diphtheria tetanus injection. He was seen again on 1 September 2003 for the removal of the suture from his head. He complained of being anxious and was given a medical certificate for 1 and 2 September 2003. The general practitioner reviewed him on 3 September 2003, when he presented again as very anxious and said he could not work at his usual job. He was given a certificate for 3 to 5 September 2003 and was reviewed again on 6 September 2003, complaining of numbness on his head and expressed his fear. Dr Uluca encouraged the plaintiff to return to work and gave him a WorkCover certificate, with line work restriction, for 8 to 12 September 2003. He saw him again on 13 September 2003 and discussed with him a return to work plan. He saw him again on 19 and 20 November 2003, when he referred him to a psychologist. Dr Uluca expressed the opinion that he had suffered a penetrating head injury without involvement of intracranial structures and an Adjustment Disorder which progressed to anxiety/depression. He considered he had a limited capacity for work; six hours daily chassis line work and two hours daily engine line work. He was due to be reviewed on 5 December 2003;
(ii)	In a further report dated 21 October 2004, Dr Uluca reported that he had been seeing the plaintiff regularly and that his present complaints were right-sided headaches, pins and needles, and numbness over the right side of his head, anxiousness and depression with limited concentration. The doctor commented that the Post-Traumatic Stress Disorder had progressed to an anxiety/depression and that the plaintiff was prescribed Amitriptyline at night. He considered the plaintiff had a capacity for modified duties: eight hours daily, offline work only and rest breaks as required;
(iii)	In a report dated 20 October 2005, Dr Uluca noted that in December 2004, he stopped the plaintiff’s medication because of poor response and side-effects. The doctor commenced him on Effexor, 75 milligrams per day which was increased to 150mg per day. He reported that a neurological assessment was performed in December 2004 and it revealed no deficit, but significant emotional elaboration of the original injury with high levels of anxiety. He considered the plaintiff had a capacity for full-time work with restrictions on online duties;
(iv)	A report provided in November 2005 stated that the Post-Traumatic Stress Disorder had progressed to anxiety/depression. Dr Uluca reiterated his previous view of the plaintiff’s work capacity;
(v)	A further report of 6 December 2007 noted the plaintiff had stopped his anti-depressants of his own accord. He reiterated his previous views on his work and considered the psychological effects are likely to affect his working, as well as previous life;
(vi)	In a report dated 3 April 2009, Dr Uluca considered the plaintiff was benefitting from psychological input and doubted that he would ever be able to do line work again. He considered him fit to do other duties;
(vii)	In a report dated 16 November 2009, Dr Uluca considered that in October 2009 the plaintiff’s depression had worsened. He increased his medication. He commented that his diagnosis was a Post-Traumatic Stress Disorder and that his prognosis remains unfavourable and considered it likely that the plaintiff’s psychiatric injury may have long- term consequences on his lifestyle;
(viii)	In evidence, Dr Uluca stated that the plaintiff had no capacity to work online where constant attention is required. He could not perform work which requires ongoing full attention. He said the plaintiff has a capacity to do other duties, which do not involve ongoing attention. He requires breaks during the period. He thought that he could perform gardening duties, limited office work and stacking shelves;
(ix)	In answers to questions raised in cross-examination, Dr Uluca agreed that the plaintiff had no medical reason to cause him concern. He accepted that the psychological aspects of the injury were making the plaintiff anxious. Whilst he accepted that the plaintiff’s reaction was unusual, he said it depended on the personality of the patient. He agreed that the plaintiff made no complaint to him about his work from the incident until he was terminated. At that time he agreed the plaintiff had a capacity for work. He agreed that the plaintiff could have worked as a welder. The level of anxiety in the plaintiff meant that he was not fit to do similar work to that which he had performed previously. He encouraged the plaintiff to return to work. He considered it would improve his recovery. He considered he was capable of driving a taxi and had completed forms on behalf of the plaintiff for the Victorian Taxi Directorate. He agreed that when the plaintiff returned from overseas, there was no major change in his presentation and that he seemed to care for himself while travelling;
(x)	In re-examination, Dr Uluca described the plaintiff, prior to the incident, as easygoing with no psychological problems. He stated that the plaintiff now presents as a person who does not initiate conversation and who now has an animation on the low side.

Dr Serpil Ozturk

(i)	Ms Ozturk, psychologist, wrote, in a report of 23 April 2004, that the plaintiff complained of problems with his memory, eyesight, concentration and flashbacks of his accident. She considered the problems were caused as a result of a severe head injury sustained on 26 August 2003;
(ii)	In her report of 5 January 2005, Ms Ozturk understood that a screw penetrated the plaintiff’s skull at his place of employment. The plaintiff complained that he found it difficult to relieve co-workers at work as his head throbs and he finds it unbearable. He complained of a loss of confidence in himself. Ms Ozturk said the plaintiff presented as suffering from nervous tension, irritability, low mood and complaining of pain and numbness at the back of his head where the injury occurred. He was forgetful; he had been attending psychotherapy sessions weekly and the results of the psychometric assessment indicated that the plaintiff had suffered severe, depressive and anxiety symptoms. It was her opinion that the plaintiff suffered from a Post-Traumatic Stress Disorder – Chronic, and an Adjustment Disorder with Mixed Anxiety and Depressive Mood. She considered that the plaintiff had developed emotional and behavioural symptoms in response to his work-related accident, that these symptoms and behaviours are clinically significant as there was evidence that the plaintiff experienced marked distress, that is in excess of what would be expected from exposure to the stressor and that he has experienced significant impairment in occupational functioning and daily functioning in terms of relating to others, and doing household chores. She considered he was not ready to return to work, to his previous duties but that he may be able to commence on light duties part time and depending on his progress gradually increase this. She recommended that he continue his current treatment regime and psychological therapy on a weekly basis for the next twelve months. She noted that there was no neurological deficit as a consequence of the injury;
(iii)	In a further report of 7 July 2008, in her opinion, the experience of anxiety, low mood, anger outbursts, inability to organise, set goals and focus represented ongoing barriers to the plaintiff returning to work. She noted that his limited English literacy skills and limited transferrable skills limited his vocational options;
(iv)	In a report of 28 May 2009, Ms Ozturk said that the plaintiff continued to attend therapy once every four weeks and he was not taking anti- depressants. It was her view that the plaintiff responded reasonably well to psychological treatment, trying to understand his behaviour and to apply strategies he learned in session in the outside world. His progress was slow. It was her opinion that he had suffered a Post-Traumatic Stress Disorder - Chronic – and Adjustment Disorder with Mixed Anxiety and Depressed Mood – Chronic, which resulted from the accident. He was severely limited in his capacity for pre-injury duties despite his desire to overcome difficulties and become involved in the workplace again. Her prognosis was that his psychological heath is poor;
(v)	In a report dated 2 November 2009, Ms Ozturk had seen the plaintiff on 17 September 2009 when he was distressed. The plaintiff had no capacity for pre-injury employment, and based on the plaintiff’s efforts to train and find himself alternate duties and subsequent inability, suggested that he may not be fit for alternate duties. This is inconsistent with the view expressed by the general practitioner, Dr Uluca, and the fact that the plaintiff was working until 2004. I accept that Ms Ozturk’s reports though very long were repetitive, and that her view of the plaintiff did not change, nor did her treatment and neither did the plaintiff. This was concerning, given the fact that the plaintiff has consulted her for a number of years.

Dr George P. Wahr

(i)

In a report dated 10 October 2008, Dr Wahr, psychiatrist, expressed the opinion that the plaintiff was suffering from Post-Traumatic Stress Disorder constituting an impairment of 35 per cent which is work-related and primary. He considered that the plaintiff was currently unfit to work in any capacity, that the Post-Traumatic Stress Disorder had affected his social and domestic life and recreational activities and day-to-day activities;

(ii)

In November 2009, Dr Wahr reiterated his opinion of October of 2008 and considered that the plaintiff’s condition was now firmly established and chronic, and in that context, had stabilised. He considered the plaintiff’s prognosis was poor and that from a psychiatric point of view; the plaintiff was not able to engage in any work activity.

Dr Paul Kornan

(i) Dr Kornan, psychiatrist, saw the plaintiff on 4 June 2009 and reported on 10 June 2009. It was his diagnosis that the plaintiff was suffering from a Post Traumatic Stress Disorder with mixed disturbances of emotions and conduct (anxiety, depression and paranoid behaviour features). From a psychiatric viewpoint, he did not consider the plaintiff was fit to work either with his pre-injury duties or with alternate duties. He gained the impression that the plaintiff had a disturbed presentation and that his prognosis was poor.

Dr Norman Lewis

(i) Dr Norman Lewis, psychiatrist, in his report dated 13 November 2009, stated that he had seen the plaintiff that day. His diagnosis was a post traumatic neurosis with a moderately severe degree of anxiety, depression with marked anger and that there were strong features of Post Traumatic Stress Disorder. He considered that the plaintiff’s capacity to perform pre-injury duties or alternate duties, from a psychiatric perspective, was very poor.

12        I accept the submission of Mr Blanden, counsel for the defendant, that Doctors Wahr, Kornan and Lewis do not explain why the plaintiff’s condition on presentation stops him from obtaining work. Further, I note that Dr Lewis does not say the plaintiff cannot work.

The Defendant’s Medical Evidence

13        The defendant relied upon a series of medical reports from Dr Graeme Symington, neurologist, Dr Phillip Cohen, psychiatrist, Dr Timothy Entwisle, psychiatrist, Professor Simon Crowe, consulting neuropsychologist, and Dr Robert Wilkes, clinical psychologist.

Dr Graeme Symington

(i) Dr Symington provided two reports of 13 November 2003 and 29 April 2004. He reported that the plaintiff sustained a minor penetrating injury to the scalp and that there is no actual physical incapacity for work. Any incapacity the plaintiff may have would be psychologically based. He considered the plaintiff had a physical capacity to undertake his pre- injury employment. Dr Symington re-examined the plaintiff on 29 April and reported on that day that the plaintiff’s symptoms related to an anxiety state. Dr Symington considered that the plaintiff did not have a physical disorder or physical effects from his injury, but he had a psychological disorder. He referred to the report of Dr Phillip Cohen dated 21 January 2004 in which he diagnosed “acute Post Traumatic Stress Disorder with mixed anxiety and depressed mood”. He considered questions of fitness to work and prognosis were determined purely by psychological factors and that guidance should be obtained from the psychiatrist.

Dr Phillip Cohen

(i) Dr Cohen assessed the plaintiff on 21 January 2004 and reported on that day. It was his view that the plaintiff had become very anxious and fearful that he may suffer further injuries and had a variety of rather vague symptoms which are probably anxiety-based. In his opinion, he diagnosed the plaintiff as suffering from acute Post Traumatic Stress Disorder with mixed anxiety and depressed mood, DSM IV - Item 309.28. It was his opinion that there was a clear connection between the original injury and the subsequent development of his psychiatric condition. He thought he was temporarily incapacitated for employment.

Dr Timothy J. Entwisle, Psychiatrist

(i)	Dr Entwisle examined the plaintiff on 6 October 2004 and reported on 11 October 2004. On examination, the plaintiff was a nervous, emotional, reactive but nonetheless pleasant man who perspired freely during interview and found the process distressing. It was his view that the plaintiff had suffered a Post Traumatic Stress Disorder with anxiety and depressed mood and features of traumatisation (avoidance, hyper- arousal, vigilance, flashbacks). He considered that the plaintiff had an ongoing incapacity for pre-injury duties which was likely to be permanent. He considered he was permanently impaired from his pre- injury duties. He considered the plaintiff was traumatised.
(ii)	In May 2005, Dr Entwisle reviewed the plaintiff and reported on 11 May 2005. He diagnosed the development of a Post Traumatic Stress Disorder with agitation (hyper-arousal), irritability and a disturbed sleep pattern. He considered the plaintiff suffered from a work-related condition. As time goes by, he expected that presentation would become more attenuated. In May 2005, he believed that the plaintiff had a work capacity, if only some form of appropriate work could be found. Even though he accepted there was no ongoing incapacity, he said there was a degree of permanent impairment. He regarded the plaintiff’s prognosis as guarded.
(iii)	Dr Entwisle provided a supplementary report on 29 June 2005 and said that the plaintiff continued to suffer from a Post Traumatic Stress Disorder with agitation (hyper-arousal, irritability and some sleep disturbance). He considered the plaintiff would require considerable assistance, support and clear direction as to his return to work. In a further report of July 2005, Dr Entwisle found the plaintiff to continue to suffer from a Post Traumatic Stress Disorder with agitation, irritability and sleep disturbances. He had considered a report from Dr Serpil Ozturk who had indicated the plaintiff required a graduated return to work program. He commented that there was nothing wrong with Ms Ozturk’s suggestion and he considered there was no psychological basis as to why the plaintiff would be unable to seek employment.
(iv)	Dr Entwisle saw the plaintiff on 5 December 2008 and noted in his report of 20 December 2008 that the plaintiff had indicated he had been looking for work. In the doctor’s opinion, the plaintiff continues to present with signs and symptoms of a chronic Post Traumatic Stress Disorder with depressed and anxious mood (agitation, hyper-arousal, irritability, disturbed sleep pattern). It was his opinion that the plaintiff did not suffer from a psychiatric incapacity for work. He considered the plaintiff was genuine in his attempts at looking for work and had applied for a truck licence. He considered the plaintiff was suffered from a compensable psychiatric injury. His symptoms occur in the context of the fear of dying and the subsequent sequelae of a psychological nature that followed from that. It was his opinion that the plaintiff presented with a chronic Post Traumatic Stress Disorder with depressed and anxious mood.
(v)	The plaintiff was examined by Dr Entwisle on 16 November 2009. It was Dr Entwisle’s view that the plaintiff had a Post Traumatic Stress Disorder with depressed and anxious mood. He remained of the opinion that the plaintiff had no incapacity for work from a psychiatric perspective and believed, once he found work, his situation would improve.

Dr Simon Crowe

(i) Dr Crowe reported, as a result of performing a neuropsychological assessment of the plaintiff in December 2004. It was his conclusion that the plaintiff suffered no deficit. However, he had a significant emotional elaboration of the original injury, but moderate levels of self-reported depression, high levels of self-reported anxiety and a maximal level of self-reported abnormal illness behaviour. He considered that the plaintiff’s emotional state was his principal problem, that he could return to the process work that he was capable of prior to the injury.

Dr Robert Wilkes

(i) Dr Wilkes examined the plaintiff on 10 October 2007 and reported that day. He considered the plaintiff’s response to his injury as a “somewhat histrionic and possibly manipulative response”. He used such words as “learnt illness behaviour or a chronic pain syndrome”. He recommended the tapering off of psychological treatment over the next three to six months.

14        In summary, the reports obtained by the defendant suggested that the plaintiff could obtain work and his situation would improve. It is clear that the plaintiff is looking for work.

Has the Plaintiff Established His Entitlement to Commence Proceedings with
Respect to the Pain and Suffering Consequences of the Incident?

15        In order to establish his entitlement to commence proceedings seeking damages for pain and suffering and loss of enjoyment of life, the plaintiff must establish, on the balance of probabilities, that he has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder, the pain and suffering consequences of which, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, may be fairly described as being more than “serious” to the extent of being “severe”. The assessment of the plaintiff’s condition is to undertaken as at the date of the application.

16        It is clear from the medical reports relied upon by the plaintiff and from his evidence that the plaintiff has required regular medical and psychological treatment for many years. It is clear from the doctors that the plaintiff’s social life has been dramatically affected; he has changed from being a genuine hardworking man to a person who lives a sad and lonely life with no activities. The evidence from the plaintiff’s doctors is that he has a severe Post- Traumatic Stress Disorder. This condition is chronic and ongoing. He also suffers from a mixed anxiety and depressive state.

17        The psychiatric medical evidence relied upon by the defendant, namely, the reports of Dr Cohen and the numerous reports of Dr Entwisle, to some extent agree. In January 2004, Dr Cohen said the plaintiff was suffering from acute Post Traumatic Stress Disorder with mixed anxiety and depressed mood, DSM IV – Item 309.28. Dr Entwisle, who examined and reviewed the plaintiff on many occasions until December 2008, diagnosed a person who presented with signs and symptoms of a chronic Post Traumatic Stress Disorder with depressed and anxious mood (agitation, hyper-arousal, irritability, disturbed sleep patterns). He stated that the plaintiff was suffering from a compensable psychiatric injury; his condition was one of primary psychiatric nature. Whilst he did suffer a physical injury, his symptoms occur in the context of the fear of dying and the subsequent sequelae of a psychological nature that followed from that. He presented with a chronic Post Traumatic Stress Disorder with depressed and anxious mood. He further examined the plaintiff in November 2009 and had a copy of Dr Wilkes’s report. It was still his opinion the plaintiff had a Post Traumatic Stress Disorder with depressed and anxious mood. He considered the report of Mr Wilkes was more in keeping with his own assessment of the plaintiff. The consultant neuropsychologist, in December 2004, considered the plaintiff had a significant emotional elaboration of the original injury with moderate levels of self-reported depression, high levels of self-reported anxiety and a maximal level of self-reported abnormal illness behaviour. He considered the plaintiff’s emotional state was his principal problem.

18        Dr Uluca, the plaintiff’s general practitioner, was examined and cross- examined. He was a genuine and intelligent witness who spoke frankly about the plaintiff. He had been the plaintiff’s general practitioner since March 1997. He had witnessed a confident and genuine hardworking man lose all enthusiasm for life and become socially isolated. Based on the evidence of the plaintiff as to his restrictions that his symptoms imposed upon his lifestyle and the consistent complaints to all doctors of the effect upon his lifestyle, I am satisfied that the plaintiff’s lifestyle has been substantially affected to justify the description of “severe”. The plaintiff has sought medical and psychological assistance since the incident on a regular basis.

19        Further, I am of the opinion the medical evidence which the plaintiff relies upon from his treating general practitioner does establish the contention that the incident has caused him to suffer a severe permanent mental or behavioural disturbance. I refer to the reports from Dr Uluca, and his evidence in Court. I have commented upon the limitation of the reports from the psychologist, Ms Ozturk. In all reports, they have expressed a view that the plaintiff has suffered a severe permanent mental or behavioural disturbance.

20        The medico-legal reports of Dr Wahr, Dr Kornan and Dr Lewis all support the plaintiff’s condition.

21        For the foregoing reasons, I am satisfied that the plaintiff has established that the pain and suffering consequences of his injury can be reasonably described as being more than “serious” to the extent of being “severe” when considered with other cases in the range of possible mental or behavioural disturbances or disorders.

Has the Plaintiff Established His Entitlement to Commence Proceedings with
Respect to the Economic Loss Consequences of the Incident?

22        For the reasons expressed earlier, I do not accept the opinion of Ms Ozturk that the plaintiff is permanently incapacitated for any form of work. I prefer the opinion of Dr Uluca who is the treating general practitioner. He has consistently stated that the plaintiff has a capacity for work, albeit limited, and has continually encouraged the plaintiff to return to work or to seek alternate employment. His evidence was that the plaintiff had no capacity to work on line work where constant attention is required. He said he cannot perform work which requires ongoing full attention, but said he had a capacity to do other work which does not involve ongoing attention. He said the plaintiff requires breaks during the period. He stated that there were work opportunities such as gardening, limited office work, stacking shelves and he had actively encouraged the plaintiff to obtain a taxi licence. He was the only medical practitioner who explained the limits of the plaintiff’s capacity to work. He knew the plaintiff and has observed the plaintiff over many years. Accordingly, I prefer his evidence over that of the psychologist, Ms Ozturk, and the plaintiff’s medico-legal doctors who only saw the plaintiff on limited occasions and failed to explain why the plaintiff’s condition on presentation stopped him from obtaining work.

23        It is incumbent upon the plaintiff to establish that the incapacity for work from which he suffers is such that it is productive of a financial loss of 40 per cent or more of the income which the plaintiff was earning, or was capable of earning, from personal exertion in employment during the three years before his accident, which most fairly represents his earning capacity had he not been injured. The plaintiff has not adduced any evidence which satisfies this onus. In the circumstances, I am not satisfied that the plaintiff has established that, by reason of the incident, he has suffered loss of earning consequences which satisfy the threshold established by the provisions of the Act.

Finding

24        In this proceeding, I find that the plaintiff has established that he has suffered the pain and suffering consequences of injury by reason of the happening of the incident which are, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, such that can be fairly described as being “serious” to the extent of being “severe”.

25        I find that the plaintiff has failed to establish that he has suffered loss of earning consequences by reason of the happening of the incident which represent a 40 per cent loss of earning capacity, in accordance with s.134AB(38)(e).

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