Roberts v Australian Garlic Producers Pty Ltd
[2015] VCC 671
•27 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MILDURA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05462
| PHILIP ROBERTS | Plaintiff |
| v | |
| AUSTRALIAN GARLIC PRODUCERS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 12 and 13 May 2015 | |
DATE OF JUDGMENT: | 27 May 2015 | |
CASE MAY BE CITED AS: | Roberts v Australian Garlic Producers Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 671 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Acir v Frosster Pty Ltd [2009] VSCA 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr R Ajzensztat | Maurice Blackburn |
| For the Defendant | Mr A Moulds QC with Ms B Myers | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant, in particular in June, July and October 2012 (“the said period”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, s134AB(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant or marked, and as being at least very considerable”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
11 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] Grech v Orica Australia Pty Ltd & Anor[2] and Petkovski v Galletti[3] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
[3][1994] 1 VR 436
15 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
16 The plaintiff is aged sixty-one, having been born in December 1953.
17 Since about 1978, the plaintiff has had ongoing chronic back problems.
18 In 2004, the plaintiff was out of the workforce, as he was in a financial position to take a break. However, he then started to experience pain in both legs and found out his back was causing his problems.[4]
[4]T59
19 That year, the plaintiff had a series of investigations, injections and later, decompression surgery at multi-levels from L2 to L5 at the Royal Adelaide Hospital (“RAH”) on 14 September 2005 (“the first surgery”).[5]
[5]Transcript “T”15
20 Initially, the plaintiff was happy with the result of the first surgery. However, from 2007, things went downhill and he had a recurrence of back pain with sciatica affecting his left leg. In mid 2007, he underwent facet joint injections.
21 The plaintiff agreed that he had major chronic low back problems, as Dr Murphy at Deakin medical Centre (“Deakin”) reported in September 2007. He advised the plaintiff to be cautious of his back, and imposed lifting and posture restrictions on any work undertaken by him. The plaintiff agreed Dr Murphy advised him in December 2007 that he was fit for minimal physical work as noted in a CRS report at that time.[6]
[6]T19
22 The plaintiff had further surgery performed at the RAH involving the L2-3 level in February 2009 (“the second surgey”).[7] Prior thereto, the plaintiff had a series of facet joint injections and also a nerve block in September 2008. He had a lot of leg problems at that time.[8]
[7]T16
[8]T21
23 Between operations, the plaintiff worked for one week on a tractor helping out a friend. Prior thereto, the plaintiff was not working, as he took his “own sort of self-funded time off.”[9]
[9]T17
24 The plaintiff deposed that after the second surgery, his back improved substantially and he was having no significant ongoing problems.
25 The plaintiff agreed that he regularly saw Dr Murphy in the early days after that operation and he took Fenac twice a day for both his lower back and legs.[10]
[10]T22
26 Dr Murphy certified the plaintiff fit to return to suitable duties in about May 2009. The plaintiff then felt his back was doing very well and he had no problems. The work restrictions imposed involved restricted bending and no heavy lifting, with a 10-kilogram limit.[11]
[11]T24
27 Prior to starting work with the defendant in October 2011, the plaintiff had various jobs, including supervising staff at a recycling centre with Access Employment. This job lasted for about three months. The plaintiff could not continue, as management did not provide appropriate work or assistance to him.
28 This job involved a lot of supervision but also ‘hands on’ work unloading cardboard onto a trailer. The plaintiff left Access because of the way it was run.[12] Dr Murphy “had it wrong” when he recorded the plaintiff left because the recycling job was too physical.[13]
[12]T25, T49
[13]T26
29 Later, the plaintiff worked almond picking. He stopped that job after about three months because, when working on a machine, he was struck in the face by branches. The job was pretty dangerous and painful.[14]
[14]T25
30 The plaintiff deposed he found each of these jobs very physically demanding and was not able to continue.[15]
[15]T48 – In cross examination, the plaintiff thought he did these jobs for about six weeks.
31 When it was suggested to the plaintiff he worked for such a short period as his back was too bad to permit further work, the plaintiff explained that at his age, it was very hard to find jobs, particularly with his back and legs. He also received income from investments at that time.[16]
[16]T50
32 The plaintiff agreed Dr Murphy was concerned about the plaintiff’s back in 2011. He suggested the plaintiff apply for a Disability Support Pension (“DSP”).[17] The plaintiff agreed that on the application form for that pension, the number one condition was noted to be the lumbar spine.
[17]T45
33 Dr Murphy told the plaintiff his back was not going to come good and it was not going to heal completely.[18]
[18]T28
34 The plaintiff could not recall having seen the DSP application form and he did not know what happened to it. He agreed it was accurate in September 2011, as the form set out, that he was then suffering from pain in the legs on prolonged standing and walking and that Dr Murphy certified him unfit for any work for the following three months, noting that he could not work more than 8 hours at his normal job. The plaintiff agreed he also had problems with his left knee, hands and neck at that time.[19]
[19]T32
35 The plaintiff applied for work with the defendant as a forklift driver because he believed that work was well within his capacity.[20] He was sent to that job by CRS, which he was then seeing on a regular basis.
[20]T35
36 At that time, the plaintiff felt really good. He had lost weight and got right into it. He would definitely have told Dr Murphy about this job.[21]
[21]T44
37 Following an interview with the defendant’s manager and the factory manager, Mr Alford, at which the plaintiff advised he could not do heavy work, the plaintiff accepted the job as a maintenance manager because he was told the defendant would take care of any heavy lifting.[22]
[22]T35
38 The plaintiff commenced employment with the defendant as a maintenance engineer on 11 October 2011 working full time, five days a week, 6.00am to 4.00pm. He worked a 48-hour week, earning $25 per hour.
39 The plaintiff’s position with the defendant involved a range of tasks requiring him to maintain, repair and build production machinery and equipment used in the processing and packaging of garlic.
40 Work as a maintenance engineer required frequent lifting, carrying and manhandling of machine components, work on components and parts forming part of the machinery and equipment.
41 Most of the time, the plaintiff worked alone, and when he asked for manual assistance, frequently that was very limited for short periods of time or often not available.
42 In addition to maintenance and repair work, the plaintiff also built and assembled a variety of machinery and equipment. That work was heavy and arduous, involving lifting and manhandling heavy weights.
43 Also from about mid 2012, the plaintiff worked assembling components of an annex to a shed built over and around boiler equipment and compressors “the annex”). He assembled the components for the annex which were transported by forklift and assembled on site, bolted into a concrete slab.
44 The construction of the annex included placing 9-metre C section beams to the shed wall, to which was fitted the roof of the annex 4 metres above ground. That work involved frequent use of ladders, climbing and using hand equipment to stretch, reach and secure the components.
45 In cross-examination, the plaintiff described the heavy handling of beams involved in this task.[23]
[23]T42
46 Initially, the plaintiff coped reasonably well with the maintenance manager job. He continued to take two Fenac tablets per day.[24] He worked out how he could do his job without “knocking [himself] around”, not doing any heavy lifting.[25] However, over time, the work became much more physically demanding and harder for him and caused further ongoing worsening problems with his back and legs.
[24]T43
[25]T37
47 The building of the annex took about four to six weeks during July and August 2012. During that time, the plaintiff required assistance from other workers in that task.
48 From about June-July 2012, the plaintiff was having aching, discomfort, soreness and pain in his back. Also over time, he began to experience pain in his legs, mainly the right.
49 The plaintiff attributed the onset of these symptoms to the cold weather, but they continued and progressively got worse. He struggled to do day-to-day maintenance and complete the annex assembly. He began to have severe pain in both legs and his back, and had difficulty doing tasks requiring bending, flexing, turning and twisting his back. Movements of his back were very painful.
50 The pain came on fairly suddenly.[26] It came on in the later part of the said period. His problems arose right at the end, thus he did not tell his general practitioners about any issue until the later part of his employment. The onset of pain was two or three weeks before he first reported a problem to Dr Adem.[27]
[26]T39
[27]T46
51 The pain and symptoms gradually worsened and in August 2012, the plaintiff advised the defendant of his condition and he took a week of annual leave to give his back and legs a rest. He attended a general practitioner at Deakin.[28]
[28]T44
52 The plaintiff’s back did not just “go bang”. He could not pinpoint exactly what caused it but it had to be something to do with the way he was working lifting heavy beams.[29] The plaintiff definitely felt that his back and leg pain was due to his work with the defendant.[30]
[29]T42
[30]T42
53 The pain in the plaintiff’s back and legs was excruciating. He had shooting pain, pins and needles and a cramp-like sensation and numbness in both legs. As result of these problems, the plaintiff was not able to continue work and he was in real strife.
54 Dr Adem arranged for the plaintiff to have an MRI scan, which took place in August 2012.
55 With rest, the plaintiff’s back pain and leg symptoms seem to improve but not much. He was prescribed Fenac and referred to an Adelaide neurosurgeon, Mr Yau.
56 The plaintiff returned to work on 3 September 2012 doing his normal job but as much as possible, he avoided duties involving lifting, manual handling or repeated movements of his back. However, he struggled to stay at work because of his ongoing severe back pain and leg symptoms, with terrible back pain and severe pain into his legs and very restricted back movement.
57 In late 2012, the defendant’s OH&S manager, Mr McNamara saw the plaintiff having problems with his back and told him he should not be working in that condition.
58 The plaintiff saw Dr Murphy, who certified him unfit until 1 October 2012 and prescribed Panadeine Forte and paracetamol.
59 The plaintiff saw Dr Murphy again on 1 October 2012, when he certified him fit for restricted modified duties. The plaintiff was restricted to sedentary work with no lifting. He continued at work but had to take breaks and change his position every few hours.
60 The plaintiff’s leg pains worsened and he had ongoing unrelenting back pain and could not do much.
61 Mr McNamara saw the plaintiff trying to keep going at work and again told him he could not stay at work in that state. He completed the plaintiff’s claim form.[31]
[31]T41
62 The plaintiff saw his general practitioner again and was certified unfit for work form 17 October 2012. The plaintiff has not since returned to work since that date.
63 The plaintiff’s Claim for Compensation dated 16 October 2012 was rejected following a medical assessment on 1 December 2012 with an occupational physician, Dr Graham.
64 As a result, further investigations and treatment for the plaintiff’s back were delayed. The plaintiff eventually managed to see Mr Yau on 25 November 2013 and he arranged for a course of injections in December that year and again in March 2014.
65 Initially, the injections were effective but only for a short time. The plaintiff’s back pain and pain and symptoms affecting his legs soon returned to their previous level. Mr Yau then told the plaintiff that further surgery may not be necessary.
66 In about mid June 2014, the plaintiff went back to the spinal surgery unit at the RAH for further lower back injections. They had the same result – temporary improvement in leg pain – but they did not take it or the ongoing low back pain away and symptoms continued.
67 When he swore his first affidavit in June 2014, the plaintiff had ongoing fluctuating unpredictable back pain. Despite rest and some treatment, he had struggled to recover from the ongoing severe back and leg pains he had experienced since August 2012.
68 The plaintiff was never free of back pain and his activities were limited because of it. He was unable to stand or sit for too long and perform tasks or activities requiring bending, twisting, flexing and stretching his back.
69 Also, the plaintiff could suffer severe acute flare ups of back and leg pain which he struggled to tolerate. Those could occur because of a sudden unguarded movement such as stumbling, coughing or sneezing. He continued to have pain in both legs, worse in the right, and these symptoms were unpredictable.
70 Since August 2012, the plaintiff has been prescribed a variety of medications including Tramadol. As of June 2014, he was taking Fenac, Lyrica and Panadeine Forte and was unable to get by without those medications.
71 The plaintiff was no longer capable of working as a maintenance engineer or performing any of the tasks or activities he did with the defendant. He was no longer capable of working as a forklift driver. His capacity for physical manual work had been further severely reduced because of his work related injuries.
72 The plaintiff had been advised that he could not expect any significant improvement in his back. Further, he had been told to expect ongoing back pain and leg symptoms of fluctuating severity into the future.
73 As of June 2014, the plaintiff was not able to work and no longer capable of doing any of the work he had done previously. He understood he would require further investigations and treatment.
74 The plaintiff was then very frustrated, depressed and worried about his inability to recover from his ongoing chronic back problems. He had no income and he and his wife relied upon her earnings, a situation which he found very distressing and upsetting.
75 In June 2014, the plaintiff underwent a further back procedure in the form of rhizolysis. Thereafter, his back pain definitely improved but he still suffers from ongoing back pain and also pain down his legs, which is worse in the right.[32]
[32]T47
76 The plaintiff continues to suffer from the disabilities previously deposed to.
77 The plaintiff remans under Dr Murphy’s care, whom he sees about once a month. The plaintiff continues to take Fenac and Lyrica to help manage the pain. He takes Panadeine Forte occasionally when his pain flares up. He also takes glucosamine, krill oil and Rapigel.
78 Before his injury with the defendant, the plaintiff’s pain was all in his legs but he now also has trouble in his lower back. Before, it was always in his legs and buttocks.[33]
[33]T51
79 It could be right that the plaintiff had no back pain when he saw Dr Graham in December 2012. The plaintiff disagreed that coming and going back pain has been the same before and after working with the defendant. His current pain is much different.[34]
[34]T52
80 Whilst the plaintiff agreed there were times prior to his work with the defendant that he could barely walk, he was not “folded over”. Since suffering injury with the defendant, the plaintiff has been cramped over when walking.[35]
[35]T53
81 The plaintiff rides a pushbike every couple of weeks as he is trying to lose weight. He has a wide seat on his bike to support his back.
82 The plaintiff is currently doing a computer course three nights each week. He can do basic tasks on the computer he has purchased but he is not too good with computers.
83 The plaintiff has a houseboat which is currently moored in Mildura and he sleeps on it after the computer course.
84 Despite the computer course, the plaintiff does not believe he would be able to work in an office-type job as his computer skills are basic. The plaintiff’s reading and writing is okay but he is a slow reader.
The Plaintiff’s Taxation Summary
Financial Year Gross Earnings Ending 2010 $12,993
(including BT investments)
Ending 2011 $16,495
($4,783 Access
$3,133 almonds)
Ending 2012 $44,306
$47,597 (from October 2011)
Ending 2013 - Ending 2014 -
Investigations
85 There were a series of investigations undertaken of the plaintiff’s lumbar spine prior to his work with the defendant.
86 These included x‑rays on 5 April 2004 and 28 March 2008 and MRI scans on 8 September 2004, 13 September 2005 and 13 August 2008.
87 Following the 2008 MRI, it was reported that there was multi-level degenerative change with associated canal and exit foraminal stenosis. It was noted there was however, a right L2-3 exit foraminal narrowing that could be responsible for the new symptoms.
88 An MRI scan of the lumbar spine was carried out in August 2012.
89 It was reported there was multi-level degenerative disc and facet joint disease without evidence of spinal canal stenosis. Multi-level severe foraminal narrowing was described.
Treaters
90 In December 2012, Dr Murphy reported that the plaintiff had a history of chronic back pain. He was diagnosed with canal stenosis in 2004 and had surgery in relation thereto the following year. He had a recurrence of problems with sciatica in 2009 and underwent a laminectomy at the RAH.
91 By August 2009, the plaintiff felt his back was doing very well and he had no problems. Dr Murphy certified him fit to return to suitable duties from 15 May 2009.
92 In January 2011, the plaintiff told Dr Murphy he was returning to work in a new job at Access Employment. In May that year, the plaintiff advised he could not cope with supervising the recycling job because it was too physical and he had been doing some almond picking. That caused pain again and he only lasted a couple of days before he had to cease work.
93 Dr Murphy completed an application for a DSP on 27 September 2011.
94 The plaintiff presented on 27 August 2012 with excruciating pain in both legs. Dr Murphy noted the plaintiff had been working back as a machine operator in the garlic industry doing machine maintenance. The plaintiff said the pain had recurred over the past two months and prior to that, he was doing a forklifting job.
95 Dr Murphy noted the August 2012 MRI scan scans findings.
96 Dr Murphy reported that the plaintiff had been advised to cease work and had been referred back to the RAH spinal unit.
97 In summary, Dr Murphy thought the plaintiff had chronic back issues, noting he had had surgery twice in the past and had an exacerbation in August 2012 after working the previous two or three months on machine maintenance.
98 Dr Murphy’s advice at that time was the plaintiff was no longer capable of doing manual work of any kind but may be able to do light sedentary work, yet he noted the plaintiff was not really trained for that type of work and prolonged sitting may aggravate his current position. Dr Murphy then thought, certainly, the plaintiff was not capable of any work. His advice would be that the plaintiff should go back to applying for a DSP, though a rehabilitation provider could be used to assess the plaintiff’s ability return to work.
99 In February 2014, Dr Murphy reported the plaintiff had seen Mr Yau, neurosurgeon, who described his problems as being due to L2-3 retrolisthesis and bilateral foraminal narrowing at L2-3, L3-4 and L4-5 and stated that that was dominantly from facet joint hypertrophy.
100 Dr Murphy noted Mr Yau ordered facet joint injections at L3 to S1, which were initially effective for about a fortnight, but the plaintiff then felt his symptoms returned to their previous state.
101 Mr Yau advised that if the plaintiff did not get a prolonged response to treatment, that he may be a candidate for facet joint denervation which could be carried out as a day case. Mr Yau did not think decompressive surgery was an option.
102 Dr Murphy reported in May 2014 that the plaintiff suffered a further spinal disc prolapse in the course of his employment with the defendant.
103 Dr Murphy considered the employment with the defendant was contributing as an exacerbation of a previous back injury. Prior to that injury, the plaintiff had had two previous spinal operations and was supposed to be doing light duties, only because of the likelihood of having further aggravation if he did go back to heavy work.
104 Dr Murphy did not believe the plaintiff could work as a maintenance engineer, as he thought he would be at great risk of further exacerbating his back injury if he did.
105 Dr Murphy thought it quite possible, however, that the plaintiff would be able to return to sedentary work that involved no lifting or carrying. Therefore, it was not definite that the plaintiff had no work capacity. He thought the plaintiff could consider returning to work on the completion of his current treatment at the RAH.
106 In his most recent report of April 2015, Dr Murphy advised that since May 2014, the plaintiff had continued to be bothered by persistent back pain which had become significantly worse, and he underwent rhizolysis at the RAH in June 2014 to try and eliminate some of his pain.
107 The plaintiff was reviewed at the RAH on 11 August 2014. When he was reviewed by Dr Murphy on 18 August 2014, he felt his back pain was a lot better. However, when seen again on 18 September 2014, the plaintiff felt his back pain was getting a lot worse again.
108 When examined on 10 November 2014, the plaintiff’s walking was worse. He was slow and stooped in his mobility, and Dr Murphy felt he was probably totally incapacitated.
109 When seen on 1 December 2014, the plaintiff was no better. He was very stiff and slow in movement, and pain relief was not helping.
110 Dr Murphy saw the plaintiff again on 19 December 2014 and 27 January and 18 February 2015. He had come to the opinion that the plaintiff was totally and permanently incapacitated and did not feel he was capable of any physical work.
111 Dr Adem completed a medical practitioner questionnaire on 9 November 2012 in which he noted the mechanism of injury was the plaintiff was lifting heavy machines up to 60 kilograms. He had been working as a machine operator in the garlic industry. He noted the plaintiff previously had the same medical conditions. When examined, the plaintiff reported excruciating pain in both legs, the lumbar region, limbs, pins and needles.
112 Dr Adem then thought the plaintiff had a capacity for modified alternative pre-injury duties with a 5 to 10-kilogram lifting restriction. He noted the plaintiff was then taking 50 milligrams of Fenac twice daily.
113 Dr Adem wrote to Mr Yau on 30 August 2012, referring the plaintiff, who had presented with excruciating lower lumbar region back pain and leg cramps the previous week after heavy work with machines at work. Dr Adem advised the plaintiff was barely able to work or stand still.
Clinical notes – Deakin Medical Centre
114 Following the second surgery, when the plaintiff attended in late March 2009, he had a good report from his surgeon.
115 On 3 August 2009, Dr Murphy noted the plaintiff’s back was very good and his left knee was starting to play up.
116 There were subsequent visits when there was no mention of back complaints: on 7 August, 11 September, 15 September and 9 December 2009; 25 January, 26 May, 15 September, 4 October, 8 November and 8 December 2010.
117 On 6 January 2011, Dr Murphy noted the plaintiff had been well, had a new job with Access Employment and pre-employment paperwork was provided. The plaintiff attended for non-back related issues in February 2011.
118 On 19 May 2011, Dr Murphy noted the plaintiff found he could not cope with work supervising the recycling job at the tip. It was too physical and he attempted almond picking. In the previous two weeks, the plaintiff had two episodes of tiredness and generalised joint and muscle pain lasting a couple of days. Dr Murphy noted a letter was written to Centrelink and prescription of Fenac continued.
119 There were visits unrelated to the plaintiff’s back on 20 June, 23 August, 12 September and 15 September 2011.
120 On 27 September 2011, the plaintiff attended Dr Murphy who noted “Centrelink, Lower spine, neck hands, knee”, and the reason for the visit was “disability pension medical”.
121 On 9 January 2012, Dr Murphy noted the plaintiff had a throat problem and had been painting at work. There were attendances on 2 March, 4 May and 20 August 2012 unrelated to any back complaint.
122 On 27 August 2012, Dr Adem noted the plaintiff was a fifty-eight-year-old machine operator complaining of excruciating pain in both legs and lumbar region, shooting pain, pins and needles and cramps:
“Has been working as a machine operator in garlic industry for maintenance. Heavy machines up to 60 kilograms. The back pain and leg pain started since the past 2/12. Prior to that he was doing forklifting job.”
123 The plaintiff’s pain levels were reported at 8 out of 10 and on examination, there was restricted movement. An urgent MRI scan was requested.
124 On 30 August 2012, Dr Adem noted that the plaintiff was getting better and the reason for the visit was back pain with referred leg pain. A letter was written regarding WorkCover, and the findings of the MRI scan noted.
125 On 3 September 2012, the plaintiff saw Dr Murphy. He noted the plaintiff suddenly felt well three days ago and was not able to work until then, was “okay today”. He wrote a certificate and the plaintiff was advised to continue normal back care, and there was no need for further surgical review. The reason for the visit was bilateral back pain/leg.
126 On 24 September 2012, Dr Murphy noted the plaintiff’s back was terrible again, with pain into the right upper region, and a referral was written to Mr Yau.
127 On 8 October 2012, Dr Kumaraswamy prescribed Panadeine Forte, which was renewed on 9 October 2012.
128 Dr Adem saw the plaintiff on 17 October 2012, noting he was fifty-eight years old. The safety officer had told him he could not perform his duties and he had been told not to go back to work until his back was fixed.
129 Dr Murphy noted on 15 November 2012 that QBE had rejected the plaintiff’s WorkCover claim, stating his condition was degenerative.
Medico-legal evidence
130 The plaintiff was assessed by Mr Kossmann, orthopaedic surgeon, in December 2014.
131 The plaintiff then told him of his chronic history of lumbar back pain dating back to the 1970s and surgery in 2005 and 2009.
132 The plaintiff told Mr Kossmann that subsequent to the second surgery, his lumbar back pain had significantly improved and his bilateral lower limb radicular pain had resolved.
133 The plaintiff claimed his work duties with the defendant resulted in a deterioration of his previously well managed lumbar back pain and he claimed to have developed associated back pain radiating to his right buttock.
134 Mr Kossmann noted the referral to Mr Yau, who arranged corticosteroid injections in late 2013/early 2014 and in mid 2014, lumbar spine facet joint radiofrequency ablation resulting in sustained symptomatic improvement.
135 The plaintiff complained of constant lumbar back pain fluctuating in intensity. There was associated pain radiating to the right buttock. The plaintiff denied lower limb radicular symptoms.
136 On examination, Mr Kossmann found restriction of the lumbar movement with bilateral straight leg raising to 60 degrees. Lower limb neurological examination was unremarkable.
137 Mr Kossmann thought the plaintiff sustained an aggravation of lumbar spine multi-level facet joint degenerative disease and multi-level severe foraminal narrowing.
138 Mr Kossmann noted the plaintiff had been unable to return to work since 2012 and had not consulted a pain management physician, nor attended any allied health professionals.
139 Mr Kossmann thought the prognosis regarding the plaintiff’s lumbar back pain was poor, noting he had chronic lumbar back pain dating back to the 1970s. He also noted the plaintiff was overweight. He thought his prognosis may improve with a formal pain management program and from regular physiotherapy, hydrotherapy, and also core muscle strengthening.
140 Mr Kossmann considered there was a direct temporal and causal relationship between the workplace duties and the aggravation of the plaintiff’s lumbar back pain.
141 As a consequence of the aggravation, Mr Kossmann thought the plaintiff was not able to resume his pre-injury employment. Manual work necessitating repetitive bending, carrying of heavy objects and working in awkward and confined spaces was contraindicated.
142 In Mr Kossmann’s opinion, the plaintiff would be unable to return to any manual employment in the future.
143 Mr Kossmann noted the plaintiff’s sitting tolerance had been unaffected by his lumbar back condition. He thought the plaintiff may therefore be fit to resume alternative work of a sedentary nature. However, the work choices may be limited. Mr Kossmann recommended a vocational assessment.
144 Mr Kossmann thought the plaintiff’s incapacity to return to manual work could be assessed as being permanent.
145 The plaintiff was examined by occupational physician, Dr Amanda Sillcock, on 24 April 2015. The plaintiff told her of earlier surgery and feeling very good after the second surgery, so he obtained a job with the defendant.
146 The plaintiff initially applied for a job as a forklift driver but was offered the work as a maintenance supervisor. He told Dr Sillcock he had a gradual onset of pain but managed the job for about almost a year before he finally became too sore and was sent home by the OH&S officer.
147 The plaintiff described being a little better than he was but he still had lower back pain which he graded at 9 to 10 out of 10 intensity at times. It radiated to the tops of his thighs, the right being worse than the left. He complained of a burning sensation in the front of his thighs and he also had had some numbness and paresthesia at the medial side of his left leg for some time.
148 Dr Sillcock noted the plaintiff was currently doing a computer course three days a week.
149 On examination, flexion was reduced to about half and there was normal reflex and muscle power in his legs and reduced sensation over the left leg along the medial side below the knee and extending onto the foot.
150 Dr Sillcock noted the April 2004 and March 2008 x-rays and the MRI scan of 28 August 2012.
151 Dr Sillcock believed the plaintiff was suffering from multi-level foraminal stenosis and possibly some central spinal canal stenosis. He had some sensory loss in the left leg which appeared to have been present for a long time and which probably represented some past neural compression. She noted the plaintiff’s symptoms had been significantly worsened by doing a lot of heavy lifting.
152 Dr Sillcock believed the diagnosed injury was consistent with the plaintiff’s employment.
153 Dr Sillcock considered the plaintiff needed to avoid work that required prolonged standing and walking and he should not lift more than 5 kilograms on a repetitive basis and 10 kilograms on a very occasional basis. She thought those restrictions were permanent.
154 Dr Sillcock noted the plaintiff reported suffering from ongoing pain and he had a number of limitations. She did not believe he was fit for work for more than 15 hours per week on a reliable and permanent, consistent basis. His condition was unlikely to change significantly in the foreseeable future.
155 Dr Sillcock noted the plaintiff’s current age of sixty-one posed a barrier to his undertaking other employment. However, he had good skills and work experience but needed to have sedentary work.
156 Dr Sillcock thought the plaintiff’s condition had deteriorated since working for the defendant, where he was doing a lot of heavy lifting and that exacerbation of pre-existing lumbar pathology had resulted in further loss of function, and also the plaintiff being unfit to undertake his pre injury employment.
The Defendant’s medical evidence
157 The plaintiff was first referred to the RAH in July 2004 when seen by Mr Fagan, spinal surgeon. The plaintiff then reported an eighteen-month history of leg pain, worse on the left. Mr Fagan thought it likely the plaintiff suffered from spinal canal stenosis, and ordered an MRI scan.
158 There was a follow up visit at the RAH in September 2004 when the Orthopaedic Registrar suggested an epidural injection, which was undertaken in June 2005. Following that procedure, RAH spinal fellow, Mr Oakley, thought the plaintiff required surgery. An L2/3-L5/S1 decompression was undertaken on 14 September 2005.
159 In September 2007, Dr Murphy advised that the plaintiff was suffering from major chronic low back problems. He had had degenerative spinal disease and had lumbar decompression surgery.
160 Dr Murphy thought any attempt at returning to work would need to be cautious of the plaintiff’s back. He should not do work which involved recurrent lifting; he should not lift above 10 kilograms; he should be able to frequently change position from sitting to standing and he should not be recurrently bending. The plaintiff should also be able to take 5-minute breaks from physical work every hour.
161 On 17 December 2007, CRS certified the plaintiff was suffering spinal stenosis. Prior surgery was noted. In terms of rehabilitation, CRS considered that this was a very major back disability and that all future employment should involve minimal physical work.
162 Dr Pop at Deakin referred the plaintiff to Mr Fagan in March 2008, noting the plaintiff was then complaining of ongoing left buttock and proximal tight pain and he was hoping for facet joint injections of local anaesthetic and steroid.
163 Dr Jiris at Deakin referred the plaintiff to Mr Fagan on 17 March 2008 for review and management of continuing lower back pain. Dr Jiris completed a GP Management Plan in July 2008.
164 Mr Yau wrote to Dr Murphy in August 2008 thanking him for further referral, and suggested an up-to-date MRI scan. An epidural injection at the right L2-3 was suggested by the RAH in August 2008.
165 RAH spinal fellow, Mr Meir, wrote to Dr Murphy in December 2008 advising that the plaintiff warranted surgical management of his problem. On 4 February 2009, Mr Yau carried out a right L2-3 foraminal decompression was at RAH.
166 Mr Yau wrote to Dr Murphy in March 2009, six weeks after the second surgery. He noted the plaintiff had improvement to the pain he suffered in the anterior thigh on the right. He had some residual burning symptoms but certainly felt his symptoms were much improved, allowing good mobilisation. He had a reasonable range of movement, and power was intact. He noted the plaintiff had been given advice on his general rehabilitation recovery with hopes to return to work in the future.
167 On 27 September 2011, Dr Murphy completed a medical DSP application for Centrelink. Condition 1 was noted as spinal stenosis, the date of onset being 2002 and the diagnosis, 2004. It was noted the plaintiff had leg pain since 2002 and surgery to decompress the spine. His symptoms were then pain in the legs on prolonged standing and walking. He was taking Fenc.
168 It was noted the plaintiff had limited ability to stand, sit and walk that was likely to persist for more than two years.
169 The second condition noted was cervical spondylosis, the onset of which was not dated. The history was pain and numbness in both hands for over six months, and the treatment for that had been Fenac. It was thought that that condition would deteriorate within the next two years.
170 Other medical conditions were noted to be osteoarthritis of the left knee and both hands, and a hearing problem. Investigations were provided in relation to the spine, knee and neck.
171 Dr Murphy then thought the plaintiff was temporarily unfit for work for the next three months. He thought the plaintiff could not do his usual work or any other work for 8 hours or more per week.
Medico-legal evidence
172 Dr Graham, occupational physician, examined the plaintiff on 1 November 2012. The only material with which he was provided was the plaintiff’s Claim for Compensation.
173 The plaintiff told Dr Graham he had recovered well from both operations.
174 Dr Graham noted that some time prior to 28 August 2012, the plaintiff became aware of pain in his legs, which he initially attributed to cold weather. That persisted, and he took a week off work. He had returned to work but his symptoms persisted and he took further time off on sick leave.
175 The plaintiff again returned to work but was struggling with ongoing discomfort, and his OH&S officer advised him he could not remain at work until he was fit to do all his normal work.
176 At that examination, the plaintiff stated he was experiencing no back pain. He was aware of a burning cramping pain in the lateral and medial aspect of the right thigh and he stated he experienced occasional similar symptoms on the left.
177 Dr Graham noted the August 2012 MRI scan and that the plaintiff took Panadeine Forte when necessary, and also occasional Fenac.
178 The plaintiff advised Dr Graham he recovered well from the two surgical procedures and resumed all normal activity.
179 On examination, extension was reasonable. There was stiffness evident on palpation but no significant tenderness. Active straight leg raising was to 75 degrees bilaterally.
180 Dr Graham thought there was no evidence the plaintiff had any injury. He had evidence on clinical examination of neural compromise, primarily affecting the right side, and this had appeared to be explained by the MRI scan which revealed foraminal compromise on the right at L2 to L4.
181 Dr Graham thought this was part of the widespread degenerative change affecting the plaintiff’s lumbar spine, and his employment was not a cause. The symptoms were due to degenerative change.
182 Dr Graham thought the plaintiff’s condition was a continuation of the longstanding degenerative change in his lumbar spine. He noted the plaintiff had a lengthy history of problems relating to his lumbar spine, having previously undergone two operations.
183 Dr Graham would not consider the plaintiff fit to resume heavy manual work. He thought he had a current work capacity and could perform modified pre-injury duties or alternative duties which did not require repetitive bending or lifting, heavy lifting, especially from a low level, or work with a constant bent back. He thought ideally, the plaintiff should be able to vary his postures, sitting, standing and walking about, and he could perform appropriate modified duties for normal hours.
184 Dr Graham noted the two earlier spinal operations. He thought the plaintiff’s recent right leg symptoms were presumably related to the foraminal compression demonstrated radiologically. He noted the plaintiff was awaiting an appointment at the RAH and may benefit from foraminal blocks.
Claim Form
185 The plaintiff signed a Worker’s Injury Claim Form on 16 October 2012, the details having been typed in by the defendant’s OH&S officer, Mr McNamara.
186 On the form, previous spinal surgery was noted and also - “No specific incident or activity. Felt soreness and discomfort about 3 September 2012.”
187 The tasks the plaintiff was doing when he was injured, was “nothing specific. Not know if work related.”
188 The date the injury occurred was 28 August 2012. The plaintiff was then working 48 hours a week, earning $25 an hour.
Lay evidence
189 Mr Alford, an employee of the defendant, attended on the second day of the hearing.
190 The parties agreed that his evidence would be that as at 2011, it was unusual for agencies to be involved in the employment of the defendant’s staff, but it did happen. He did not know what the letters CRS stood for.
191 It was possible, as far as Mr Alford was concerned, but unlikely, the plaintiff was an agency referral. In either event, no employment records were kept. There were ten full-time staff and up to 100 casuals in the defendant’s employ.[36]
[36]T57
Overview
192 I am satisfied the plaintiff suffered a compensable injury to his lumbar spine during the said period as a result of undertaking heavy work on the annex construction.
193 Dr Graham is the only medical practitioner who considered work with the defendant had not contributed to the plaintiff’s present spinal condition. Without any explanation for this view, Dr Graham described the plaintiff’s condition as degenerative. Further, he did not provide any analysis of the plaintiff’s lumbar condition prior to the said period and subsequent thereto.
194 It was however conceded by counsel for the defendant that there was an aggravation of the plaintiff’s lumbar condition as a result of his work duties in the said period.[37]
[37]T76
195 I find that this aggravation occurred in the later period of employment with the defendant, from about July 2012, when the plaintiff was working on the annex.
196 Whilst Dr Murphy is alone in his diagnosis of a disc prolapse, the consensus of medical opinion is that the plaintiff has suffered an aggravation of lumbar spine multi-level facet joint degenerative disc disease and multi-level severe foraminal narrowing.
197 Although there may not have been a change in spinal pathology following injury with the defendant,[38] the evaluative task is addressed to the impairment, not the injury itself which caused the impairment.[39]
[38]T70-1 – defendant’s submissions
[39]Humphries & Anor v Poljak (1992) 2 VR 129 at 134
Credit
198 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[40]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.
[40](2010) 31 VR 1 at paragraph [12]
199 As I indicated during the hearing, I found the plaintiff to be a credible witness. There was no comment by any medical practitioner of there being any exaggeration or embellishment of symptoms on examination. Whilst his evidence as to why he stopped working at Access and almond picking may have differed slightly to the Deakin notes, I do not consider that the plaintiff’s evidence was unreliable, as counsel for the defendant submitted.[41]
[41]T80
Pre-existing condition
200 In this case, where there is a pre-existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff’s lumbar spine and determine whether the additional impairment resulting from the plaintiff’s work during the sad period is serious and permanent.
201 In Petkovski v Galletti,[42] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. … .”
[42]Supra
202 This approach was followed by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[43]
[43](2012) 34 VR 309
203 Clearly, the plaintiff has a history of significant back problems requiring surgery in September 2005 and February 2009.
204 Whilst in 2007, before the second surgery, Dr Murphy was advising the plaintiff to be sensible about back maintenance, the plaintiff was cleared by him on 15 May 2009 for suitable duties. By August 2009, the plaintiff felt his back was doing very well and he had no problems.
205 The next relevant reference in the Deakin notes was 6 January 2011 when Dr Murphy simply noted the plaintiff had been well and had a new job with Access Employment, without any further comment as to its suitability such as the “AGH” in July 2007.[44]
[44]T88
206 The plaintiff continued to attend Deakin for matters unrelated to his back condition and there was no mention of any back issues until 19 May 2011, when Dr Murphy noted the problems the plaintiff had at Access and also later almond picking. The complaint at that time was two episodes of tiredness and generalised joint and muscle pain lasting a couple of days, not the severe pain complained of after the later part of the said period.
207 There were further visits for unrelated matters on 20 June, 23 August, 12 September and 15 September 2011. When the plaintiff attended on 27 September 2011 for completion of his DSP application, there was no mention of any back complaint at that time and the application was not suggested or requested by the plaintiff.
208 Whilst Dr Murphy noted on 9 January 2012 the plaintiff had a throat infection, having been painting at work, he did express any view as to whether the plaintiff should be working.
209 I would expect Dr Murphy to have noted complaints of back pain in this period had they been made by the plaintiff. I do not accept the lack of mention thereof can be explained by the chronic nature of the plaintiff’s back condition making it unnecessary for the doctor to note ongoing problems as counsel for the defendant submitted.
210 There were further attendances for unrelated matters in March, April and on 20 August 2012.
211 Thus, in the three years pre-injury with the defendant, save for the May 2011, when the plaintiff did not complain specifically about his back but episodes of tiredness and generalised joint pain, following which there was no change in medication or further referral or treatment considered necessary, no back complaints were noted by Deakin. I accept that during that time, the plaintiff’s back condition was adequately controlled by Fenac.
212 In these circumstances, I am not satisfied the plaintiff was unable to work in that period because of his back condition,
213 Counsel for the defendant submitted however, the situation was quite different as of 2011. Reliance was placed on the DSP form completed by Dr Murphy in September 2011.
214 Dr Murphy thought however, the plaintiff’s cervical spondylosis was also having a significant impact on his ability to function and he expected that condition would also deteriorate within the next two years.
215 Whilst Dr Murphy then thought the plaintiff had a limited work capacity, he did specify the contribution of the named conditions to this incapacity.
216 Although the plaintiff may have had a light work back from 2009, and Dr Murphy was pessimistic about his work future, the plaintiff felt well enough to seek employment as a forklift driver in October 2011, the month after the DSP application was completed, an application not initiated by him.[45]
[45]T90
217 At the time the plaintiff applied for the forklift job and took the job with the defendant, he felt really capable of doing it. He was fit and healthy, having lost weight, and he felt really good.[46] When the forklift job was not open to him, he felt able to cope with work as a maintenance manager with assistance with heavier tasks as he discussed with the defendant.
[46]T44, T90
218 The plaintiff demonstrated a capacity for this role for about ten months before he began to experience back problems when required to do the heavier annex work without the appropriate assistance.
219 Prior to that time, the plaintiff was able to work 48 hours per week, earning $25 per hour. He did not require increased medication nor were there any attendances on his doctor until August the following year, having done the heavier work for the previous two months or so.[47]
[47]T92
220 In my view, the plaintiff had a light-work back as long as the defendant adhered to the cautions that he had given them.[48] There was no challenge by the defendant to the plaintiff’s evidence of the heavy work undertaken by him in the latter period of employment.[49]
[48]T91
[49]T93
221 There was therefore a demonstrated capacity for full-time work, despite what Dr Murphy had certified in September 2011. In those circumstances, I do not find the DSP form as compelling as counsel for the defendant submitted.[50] In my view, it was not inevitable that the plaintiff would break down if he carried out work within the appropriate restrictions.
[50]T74
222 As a result of carrying out the heavier duties in the latter part of the said period, the plaintiff lost his capacity for even light work and suffered a further loss of function as Dr Sillcock described.
Treatment post injury
223 The first attendance post injury was with Dr Adem on 27 August 2012, when the plaintiff complained of excruciating pain and the involvement of heavy work for the previous two months.
224 Save for a couple of subsequent visits to Deakin where some improvement was reported, the plaintiff’s condition has deteriorated and he described being stooped and bent over due to back pain. He has been sent back to specialists at RAH for further treatment involving steroid injections, facet joint injections and rhizolysis.
225 It is not disputed that the plaintiff’s medication intake has increased after his work injury, with Lyrica being added to his regime, the dosage of Fenac increased and also a short period when the plaintiff was prescribed Tramadol.
226 The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in Court and to doctors).[51]
[51]Per Maxwell P in Haden Engineering v McKinnon (supra) at paragraph 11
227 Clearly, from 2004, the level of the plaintiff ‘s back pain has varied dramatically – with very severe pain at times, some short-lived improvement after the first surgery, a deterioration in his condition then the need for the second surgery and then significant relief thereafter.
228 Whilst at various times prior to his work injury, the plaintiff was not able to sit or stand for too long or do tasks involving bending, twisting and flexing, and he had acute flare-ups,[52] he was functioning quite well in October 2011 when he commenced work with the defendant.
[52]T62
229 Since the aggravation whilst in the defendant’s employ, the plaintiff has experienced pain of a different nature.[53] Previously, the pain was just in his legs and buttocks. Now it is also in his back. Whilst he previously had problems walking at times, he was never stooped over or cramped.[54]
[53]T51 and T53
[54]T53
230 Significantly, the plaintiff has been incapacitated for all work due to his back condition since October 2012.
231 Both the treating general practitioner, Dr Murphy, and medico-legal examiner, Mr Kossmann, considered that the plaintiff does not have a capacity for suitable employment. Dr Horsley thought the plaintiff has a capacity for limited duties not working more than 15 hours per week.
232 Given my findings as to the nature of the plaintiff’s back condition before pre-injury working with the defendant, I am satisfied that these medico-legal examiners provided their opinions on an accurate history, although they had little detail of the procedures and treatment undertaken by the plaintiff prior to 2012.
233 In my view, the plaintiff’s loss of employment capacity is a serious consequence flowing from the aggravation of the his back condition during the latter part of the said period.
234 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
235 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
236 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
237 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
238 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
239 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[55]
[55]See Barwon Spinners & Ors v Podolak (supra)
240 I am therefore required to determine a “without injury” earnings figure. The parties agreed whilst working for the defendant, the plaintiff earned $1,200 per week, working 48 hours at $25 per hour, equating to $62,400 per annum.
241 Having found the plaintiff does not have a capacity for suitable employment, he has suffered the requisite loss of 40 per cent, and I am satisfied this loss is likely to continue into the foreseeable future.
242 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
243 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
244 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages, ie both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[56] and Advanced Wire & Cable Pty Ltd v Abdulle.[57]
[56][2009] VSC 454 at paragraph 147
[57][2009] VSCA 170
245 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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