Palay v Nestlé Australia Ltd
[2009] VCC 307
•31 March 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-07-04786
| ZEHRA PALAY | Plaintiff |
| v | |
| NESTLÉ AUSTRALIA LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 February and 2 and 3 March 2009 |
| DATE OF JUDGMENT: | 31 March 2009 |
| CASE MAY BE CITED AS: | Palay v Nestlé Australia Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0307 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the plaintiff’s application involved an aggregation of injuries – identification of injury – disentangling between organic injury and chronic pain syndrome – application in respect of pain and suffering and loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC with | Melbourne Injury Lawyers Pty Ltd |
| Ms F Ryan | ||
| For the Defendant | Mr B McKenzie | Dibbs Abbott Stillman |
| HIS HONOUR: |
1 In this proceeding, the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for pain and suffering and economic loss suffered by her arising out of the course of her employment with the defendant between 20 October 1999 and March 2001.
2 The body function which the plaintiff relies upon in making this application is the cervical thoracic spine or, alternatively the impairment caused by thoracic outlet syndrome.[1]
[1] T179-181
3 The following evidence was adduced during the hearing:
(i) The plaintiff gave evidence and was cross-examined; (ii)
The medical reports of Mr David Wallace[2] were tendered and Mr Wallace gave evidence and was cross-examined;
(iii)
The medical reports of Dr S Saban[3] were tendered and Dr Saban was cross-examined;
(iv)
The plaintiff tendered her Court Book (PCB), pages 1 to 298, together with the affidavit of Catherine Wilson dated 27 February 2009;
(v) The defendant tendered its Court Book (DCB), pages 1 to 176. [2] PCB 50-69
[3] PCB 36-45
The Statutory Scheme
4 The application is governed by the provisions of s.134AB of the Act.
5 The application is brought under the definition of “serious injury” contained in subsection (37)(a) which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function” or alternatively, under the provisions of subsection (37)(c) which requires the plaintiff to establish that she has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
6 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury, that is, an injury which arising out of the course of her employment on or after 20 October 1999.[4]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[5]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsections (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows that without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[6] an approach which I intend to follow in the present case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[4] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[5] Barwon Spinners, at paragraph 33
[6] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.
7 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
Issues to be Decided
8 The issues to be decided in this application were set out in the defendant’s Statement of Issues dated 27 February 2009 and are as follows:
(1) Identification of injury sustained on or after 20 October 1999. (2) Aggravation of pre-existing injuries to right arm and left arm. (3) Aggregation of injuries to neck, right arm and left arm. (4) Exclusion of psychiatric/psychological consequences from the application
founded upon paragraph (a) of the definition of “serious injury”.(5) Seriousness of the consequences of the physical injury claimed. (6) Economic loss consequences.
The Plaintiff’s Affidavit Evidence
9 The plaintiff was born on 24 March 1951 in Cyprus. She migrated to Australia in 1970. The plaintiff’s native language is Turkish. She described her spoken English as being imperfect and her reading and writing skills in English as being poor.
10 Since arriving in Australia, the plaintiff was employed by Ericssons for approximately twenty years between 1970 and 1990. Thereafter she undertook casual work with Lanes Biscuits for approximately seven months before returning to Ericssons on a contract basis. She commenced employment with the defendant, Nestlé Australia Pty Ltd (“Nestlé”) in 1994 on a casual basis. In 1995, she commenced working full-time for the defendant. The plaintiff ceased work by reason of the injuries the subject of this application in March 2001. She has not engaged in any form of work since that time. She was subsequently retrenched by the defendant having regard to a continued absence from employment.
11 The plaintiff deposed to the following relevant medical history:
•
Whilst at Ericssons she developed some symptoms in her left shoulder which necessitated her taking some weeks off work.[7]
•
In the middle of 1995, whilst employed with Nestlé, she began to experience symptoms of pain and numbness in her left and right hands. Nerve conduction studies were undertaken which were indicative of the presence of bilateral carpal tunnel syndrome although the plaintiff did not seek treatment of that condition or miss time from work.
•
The plaintiff presented to her general practitioner, Dr Saban, on 17 February 1999 complaining of symptoms of neck pain radiating to her right arm. On examination, Dr Saban noticed the presence of neck pain but did not detect the presence of neurological signs.[8] The plaintiff was referred for an x-ray of her cervical spine and subsequently for a CT scan of her cervical spine. The x-ray[9] revealed the presence of spondylosis at C5-6 and C6-7, with osteophytes encroaching on the exit foramen between C5-6 on the right.
•
The CT scan of 26 February 1999[10] reported the presence of a right posterolateral protrusion of C5-6 and C6-7 discs with mild thecal sac indentation and right foraminal narrowing. Thereafter, although the plaintiff continued to complain to her general practitioner of the presence of neck pain, she continued to work.[11]
•
On 17 March 2001, the plaintiff presented to Dr Saban with dizziness on bending her neck forward.[12] On 21 March 2001, a further CT scan[13] of the plaintiff’s cervical spine was undertaken which was reported as demonstrating moderate to severe narrowing of the right C5-6 and C6- 7 neural exit foramina with likely involvement of the exiting nerve roots, particularly at C5-6. The presence of a possible central disc herniation at C4-5 was also noted.
•
An MRI scan undertaken in May 2001[14] revealed the presence of multi- level disc degeneration with broad-based right paracentral/foraminal disc protrusion at C5-6 compromising the exiting C6 nerve, and resulting in mild cord compression and rotation.
•
The plaintiff was certified by her general practitioner as being unfit for work on 17 March 2001. She has not returned to any employment since that time.
[7] PCB 6
[8] PCB 236
[9] PCB 24
[10] PCB 25
[11] T43
[12] PCB 239
[13] PCB 28
[14] PCB 30
12 The plaintiff came under the care of Mr David Wallace, neurosurgeon, in April 2001, who undertook a bilateral carpal tunnel release procedure on 1 June 2001 and thereafter managed the plaintiff’s neck pain. By October 2001, Mr Wallace was reporting that the plaintiff had made a reasonable recovery from her carpal tunnel syndrome but that she suffered from symptoms of neck and shoulder pain secondary to her cervical disc disease and the presence of thoracic outlet syndrome.[15] The plaintiff deposed as to the consequences of her symptoms both with respect to pain and suffering and employment in paragraphs 24 and 25 of her first affidavit dated 18 July 2007[16] and further in paragraphs 4 to 7 of her second affidavit sworn 5 September 2008.[17]
[15] PCB 54
[16] PCB 11-25
[17] PCB 16-17
The Plaintiff’s Viva Voce Evidence
13 The plaintiff stated that she had constant but variable pain in her neck extending into both her shoulders and that she suffered from headaches which were present almost every day. She said that between the time at which she had sworn her most recent affidavit and the present time there had been no improvement in her symptoms and if anything her condition had “got worse”.[18]
[18] T20-16-27
14 The plaintiff was cross-examined at length as to her history of previous injury, the nature of activities she was required to perform in the course of her employment and the onset of her symptoms and the responsibility of her various complaints, including:
• her back injury;
• the osteoarthritic condition in her hands for her inability to work.
15 Having had the opportunity to observe the plaintiff in the course of her evidence, I accept the plaintiff as being a witness who did her best to give an accurate account of the effect of each of her medical problems upon her. In particular, insofar as any attack was made which was directed towards the plaintiff’s credit, I am not of the opinion that the plaintiff’s credit was in any way impugned by such attack. It was my impression of the plaintiff that she was a truthful witness who did her best to give true answers to the questions put to her both in examination-in-chief, cross-examination and re-examination. Whilst a reading of the transcript might suggest that the plaintiff at times gave non-responsive answers, the clear impression I formed of the plaintiff was that these answers arose not by reason of any deliberate action by the plaintiff to prevaricate, but rather by reason of the difficulties faced by a witness with an incomplete understanding of English who was having to deal with complex issues and questions. The positive opinion which I formed of the plaintiff was enhanced by the evidence given by Dr Saban that, notwithstanding the onset of some symptoms in February 1999, the plaintiff did not wish to make a claim under WorkCover but wished to continue to work.[19]
[19] T43
16 Finally, although it was put on behalf of Nestlé that the plaintiff chose to cease her work for lifestyle issues, I accept the plaintiff’s evidence that the primary reason for the cessation of her work with Nestlé was caused by the presence of symptoms in her neck and shoulders, together with headache.
Medical Evidence
17 I have read the following medical reports, the content of which is relied upon by the parties:
The Plaintiff’s Medical Reports
• The plaintiff’s radiological reports.[20] •
The reports of Dr Saban;[21] Leanne Yung;[22] Mr Wallace;[23] Dr Lewis;[24] Mr Kahn;[25] Dr Hjorth;[26] Mr Postlethwaite;[27] Dr Brownbill;[28] Mr Quirk;[29] Mr Calvert;[30] Dr Epstein;[31] and Mr Radley.[32]
[20] PCB 21-35
[21] PCB 36-45
[22] PCB 46-48
[23] PCB 49-69
[24] PCB 70
[25] PCB 85-103
[26] PCB 104
[27] PCB 107-113
[28] PCB 114-126
[29] PCB 127-129
[30] PCB 130-131
[31] PCB 132-138
[32] PCB 139-181A
The Defendant’s Medical Reports
•
The reports of Mr Hooper;[33] Mr Klug;[34] Mr Haig;[35] Mr Nye;[36] Professor Jones;[37] Dr Stern;[38] Dr Kostos;[39] and Dr Faragher.[40]
[33] DCB3-4
[34] DCB 5-23
[35] DCB 24-33
[36] DCB 34-49
[37] DCB 60-67
[38] DCB 68-74
[39] DCB 75-81
[40] DCB 82-87
18 I also had the benefit of hearing viva voce evidence from Dr Saban, the plaintiff’s treating general practitioner, who has managed the plaintiff’s general medical condition between 1995 and the present date, and Mr David Wallace, the plaintiff’s treating neurosurgeon, during the period between April 2001 and January 2003. Thereafter Mr Wallace has reviewed the plaintiff on 2 August 2004 and 20 August 2008.
The Timing of the Plaintiff’s Injury
19 At the time at which she ceased her work duties with the defendant in April 2001 and consistently thereafter, the plaintiff has complained of symptoms of pain and restriction of movement in her neck, her shoulders and of headaches. A constant feature of her presentation is described by Mr Wallace as being an aggravation of her symptoms with movements of her hands above her shoulders or into “the surrender position”.
20 It is clear that prior to 20 October 1999, the plaintiff suffered from a degenerative disease in her cervical spine as diagnosed by the x-ray of the plaintiff’s cervical spine undertaken on 17 February 1999 and the subsequent CT scan undertaken on 26 February 1999. There is a considerable body of evidence to support the contention that the underlying condition in the plaintiff’s cervical spine was aggravated by reason of the duties she was required to perform in the course of her employment with Nestlé between 20 October 1999 and the date upon which the plaintiff ceased employment in April 2001. This proposition is supported by Mr Wallace in his reports dated 9 May 2007 and 3 September 2008. A similar position is adopted by Mr Kahn in his report dated 2 May 2004, and more particularly in his subsequent report of 31 July 2008.[41] Mr Brownbill[42] expresses a similar opinion on this issue to that of Mr Kahn, as does Mr Calvert.[43]
[41] See particular the comments under paragraph 2, PCB 100
[42] PCB 124
[43] PCB 131
21 Mr Geoffrey Klug expressed the opinion that the plaintiff’s neck disorder occurred subsequent to 20 October 1999.[44] He was of the opinion that there had been a progression between the changes reported on the CT scan undertaken on 20 February 1999 and those described in the subsequent scans undertaken on 20 March 2001 and 18 May 2001. He expressed the opinion that it was not possible to exclude some component related to an alleged injury as being a factor in the progression of these changes.[45]
[44] DCB 16
[45] DCB 22
22 Mr Nye commented as to causation in similar terms[46]
[46] PCB 37
23 Whilst a number of doctors, including Dr Tony Kostos, Mr Ronald Haig and Dr Mark Faragher, have opined that the plaintiff’s employment was not implicated in causing or aggravating any condition in her cervical spine, having considered the opinions expressed by these doctors and compared them with those expressed by Dr Saban, Dr Brownbill, Mr Wallace, Mr Kahn and Mr Klug, I find the reasoning process adopted by the last mentioned doctors to be superior both in analysis of causation and also in logic, and I prefer and accept that evidence. Accordingly I find that the plaintiff suffered injury in the course of her employment with the defendant after October 1999.
The Identification of the Plaintiff’s Injury and Impairment
24 An issue which arises in this application is the nature of the condition which is responsible for the plaintiff’s present symptoms. It has been described variously as:
(i) an aggravation of pre-existing degenerative changes in the cervical spine (ii) a thoracic outlet syndrome (iii) a chronic pain syndrome. 25 Insofar as there is a suggestion that the plaintiff’s symptoms are caused by the presence of a “non-organic chronic pain syndrome”, I do not accept that contention. There is an abundance of medical evidence in support of the proposition that the plaintiff is suffering from a genuine organic condition which is responsible for her symptoms. This is clearly the opinion of Mr Wallace, Dr Saban, Mr Kahn and Mr Brownbill. I accept those opinions for the following reasons:
•
Both Dr Saban and the plaintiff’s treating neurosurgeon, Mr Wallace, gave evidence and were cross-examined. Whilst Dr Saban described the plaintiff’s symptoms as emanating from an aggravation of pre-existing degenerative changes in her cervical spine, Mr Wallace expressed the opinion that the plaintiff was suffering from thoracic outlet syndrome which emanated from the injury to her cervical spine. In his evidence,[47] Mr Wallace described this syndrome as being associated generally with the presence of a “long neck” which can cause a kinking of the subclavian artery and the nerves in the brachial plexus. He described the plaintiff’s presentation as being consistent with the presence of such a condition. He explained his use of the term “chronic pain syndrome” in the course of his reports as describing a condition of entrenched pain[48], commenting that:
“Thoracic outlet syndrome undiagnosed as thoracic outlet
syndrome is often put in the basket of chronic pain syndrome.”[49]
[47] T130-135
[48] T138-141
[49] T213, 9
•
Mr Wallace is a neurosurgeon of considerable experience. Notwithstanding the fact that his opinion that the plaintiffs symptoms were organically based was tested in cross-examination, he did not waiver in his evidence that this was the case. I was impressed by his evidence and I am persuaded that I should accept it, particularly having regard to the evidence given by Mr Wallace as to the consistency of the plaintiff’s presentation to him.
•
Having regard to the evidence given by Mr Wallace that the symptoms associated with of thoracic outlet syndrome can often be missed , which I accept, I find that this gives an explanation for the comments made by some medical examiners that the plaintiff’s symptoms are caused by the presence of a chronic pain syndrome.
•
There is little support from Dr Steven Stern, Professor Ivor Jones or Dr Michael Epstein for the proposition that the plaintiff is suffering from a psychiatric condition which renders her unfit for work. Dr Jones expressed the opinion that the plaintiff was suffering from depressive symptoms secondary to a physical incapacity and the change in her life circumstances caused by those symptoms. Mr Epstein expressed a similar view and Mr Stern, whilst employing in his report the term “chronic pain syndrome”, gave no explanation as to the meaning of that term and opined that from a psychiatric aspect alone the plaintiff was fit for work.
26 For the reasons set out above, I find that the plaintiff, in the course of her employment with the defendant after 20 October 1999, suffered an aggravation of a degenerative condition in her thoracic cervical spine and that this condition is responsible for the symptoms of headache, neck and bilateral shoulder and arm pain which the plaintiff suffers. In this regard I find that it is appropriate to classify the symptoms associated with the plaintiffs thoracic outlet syndrome as constituting an impairment of the thoracic cervical spine.
Aggregation of Injuries
27 Having made the findings described earlier as to the nature of the plaintiff’s injuries and impairment, it is not necessary for me to deal further with the submission made by the defendant that there has been an inappropriate aggregation of the plaintiff’s injuries to her neck with those to her shoulders and arms. Having regard however to the raising of this issue by the defendant, I consider it appropriate to comment that even if I were satisfied that the bilateral symptoms in the plaintiff’s shoulders and arms should be classified as involving a body function separate to the function of her thoracic cervical spine, I am of the opinion that the impairment of that body function caused by thoracic outlet syndrome (being responsible for the inability of the plaintiff to perform repetitive movements involving her arms , to drive for long periods of time, and causing as it does symptoms of pain in her shoulders, arms and headaches), by itself gives rise to an impairment which can fairly be described as being very considerable such as to constitute a serious injury. In this regard I note the appropriate concession by Counsel for the defendant that having regard to the evidence given by Mr Wallace in the course of this application, no issue would be taken to the plaintiff relying upon an injury in the form of thoracic outlet syndrome.[50]
[50] T181
The Severity of the Plaintiff’s Condition and its Effect Upon Her Employment
28 The restrictions imposed upon the plaintiff’s life by reason of her symptoms was set out in her two affidavits and further amplified in the course of her evidence. I have already commented that I found the plaintiff to be a truthful witness. In this regard, I accept the evidence given by her as to her symptoms. I note further that her general practitioner, Dr Saban, who has managed the plaintiff’s general medical state from 1995 to the present date, expressed the opinion that the plaintiff was unfit for:
“Any duties that involves neck movements and I can hardly think of any
duties which involves – not involves any neck movements.”
29 In the course of cross-examination, the activities which the plaintiff would be required to undertake if employed as:
• a homecare worker; • a school crossing supervisor; • a kitchen hand were put to Dr Saban. Whilst Dr Saban conceded that the plaintiff might be able to perform some of the activities involved in these occupations, he was clearly of the view that the plaintiff was not fit to undertake all the activities involved. He further expressed the view that the plaintiff did not have the capacity to be employed in these occupations on a full-time basis and commented upon the plaintiff’s capacity for work in the following terms: “But my assessment is, as I mentioned, I mean – she’s not fit to do any gainful duties. I mean, as I imagined she doesn’t have qualifications. Maybe sitting [sic] position she might be able to do something as I mentioned earlier but my current assessment considering her neck problems, ongoing headaches, I think she is not fit for any duties at the moment. This is my assessment, I am not affected by somebody else’s opinion.”[51]
[51] T79
30 The activities involved in employment as a kitchen hand, homecare worker and crossing supervisor were also put to Mr Wallace. Whilst Mr Wallace accepted that the plaintiff could largely undertake the duties required of a homecare worker, he qualified that statement by saying:
“It depends a bit on how often and – there’s a difference between say
doing half a day, three days a week or five full days a week.”[52]
[52] T157
31 It was clear when Mr Wallace undertook a specific analysis of the activities which might be required of a homecare worker, that there were many with which the plaintiff would have considerable difficulty.[53] Similar observations were made by Mr Wallace as to the activities involved in employment as a kitchen hand.[54] Mr Wallace was more confident that the plaintiff might be gainfully employed as a schools crossing supervisor particularly having regard to the fact that this would require her to work only during school times.[55]
[53] T157
[54] T158-159
[55] T159-160
32 Mr Nye and Mr Klug have commented specifically that the plaintiff should be able to cope with the three employment activities previously referred to.
33 In deciding the issue of the plaintiff’s capacity to work, I am persuaded to accept the opinions expressed by Dr Saban and Mr Wallace, who in the course of their evidence both had the opportunity to comment upon the separate activities involved in the suggested employments and as to the plaintiff’s capacity to undertake each of those activities at or on a full-time basis.
34 It was put in the course of submissions that I should take into account the plaintiff’s prospects of rehabilitation and I accept that the provisions of the Act require me to do so. I raised with counsel for the defendant whether I should take into account the plaintiff’s poor level of spoken English in assessing her retained capacity for employment, and it was submitted that I should not be persuaded that this was a significant factor having regard to the plaintiff’s history of employment and the absence of any evidence that her difficulties with English had ever been a significant factor in her ability to find employment. I accept this submission. I am of the opinion that it is likely that if the plaintiff were physically fit to engage in any of the employments which have been identified as being suitable for her, that her problems with language would not be a significant factor to her gaining such employment.
35 Whilst I have not been persuaded on the balance of probabilities that the plaintiff does not retain the capacity to work as a school crossing supervisor, it was conceded by the defendant that employment in this activity would not provide the plaintiff with income which would comprise 60 per cent of her earnings had her injury not occurred. I am satisfied on the balance of probabilities for the reasons earlier mentioned that the plaintiff would not be capable of working on a full-time basis as a homecare worker or a kitchen hand. Further, accepting the evidence of both Dr Saban and Mr Wallace as I do for reasons previously given, I am satisfied that the plaintiff would not be fit to undertake all of the activities required in either of these employments without restriction and I am therefore satisfied on the balance of probabilities that the plaintiff would not be fit to engage in such employment.
36 Accordingly, I find that the plaintiff has suffered a serious injury in accordance with the definition as set out by the Act, the effect of which has caused the plaintiff to suffer a loss of earning capacity of more than 40 per cent of her “without injury” earnings.
The Plaintiff’s Capacity for Retraining
37 Counsel for the defendant did not agitate the issue of retraining in the course of the application. Two reports however were tendered by the defendant from The Work Solutions Group (“WSG”) which assessed the plaintiff in October 2002 and February 2004. In neither report was it suggested that the plaintiff had a realistic prospect of being retrained for work that did not require a significant manual input. I note that in the course of the initial assessment by WSG in 2002, no vocational counselling was administered to the plaintiff due to her limited English skills[56] and that the plaintiff’s limited English skills and poor presentation, with respect to both body language and communication skills, were listed as potential barriers to obtaining suitable employment. Generally I found the reports prepared by WSG to be unpersuasive. I consider the suggestions made by it which seemed to include that the plaintiff was capable of work as a sales assistant, a car sales person, or a computer salesman[57] to be unrealistic having regard to the plaintiff’s limited education and language skills. In contrast, I found the assessment of Dr Radley[58] as to the plaintiff’s capacity for work and retraining to be persuasive. I was impressed by the very detailed analysis undertaken by him as to the plaintiff’s injuries, her presentation, her work history and education when Dr Radley considered the issues of the plaintiff’s present employability and her capacity for occupational retraining. I note that in this regard Dr Radley expressed the opinion that the plaintiff had no current work capacity and no capacity of any type for occupational retraining.[59] I am persuaded to accept Dr Radley’s opinion as to the plaintiff’s capacity for occupational retraining. This opinion is consistent with my findings as to the level of the plaintiff’s physical incapacity, her work history which has been limited mainly to physical work, and her modest levels of formal education and capacity with spoken English.
[56] DCB 90
[57] DCB 92
[58] PCB 139
[59] PCB 157
Conclusion
38 In circumstances in which I have found that the plaintiff has suffered an impairment of body function, the effect of which is to occasion a permanent loss of income of greater than 40 percent of her gross income had her injury not occurred , I am of the opinion that this finding requires me to grant the plaintiff leave to commence proceedings to recover damages for both pain and suffering and loss of earnings. In doing so, I endorse the judgment on this issue of His Honour Judge Ross in Patterson v Burbank Plumbing and Maintenance Services Pty Ltd (supra).
39 On the basis of the foregoing reasons, findings and conclusions I grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries and pain and suffering and loss of earning capacity arising out of her employment with the defendant from 20 October 1999.
40 After discussion with counsel I will pronounce formal orders and hear the parties on the question of costs.
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