Shortal v Nillumbik Shire Council
[2013] VCC 1378
•17 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03996
| GREGORY SHORTAL | Plaintiff |
| v | |
| NILLUMBIK SHIRE COUNCIL | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 14 October 2013 | |
DATE OF JUDGMENT: | 17 October 2013 | |
CASE MAY BE CITED AS: | Shortal v Nillumbik Shire Council | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1378 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left leg
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a)
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Aburrow v Network Personnel [2013] VSCA 46
Judgment: Leave granted to the plaintiff to bring proceedings against the defendant for pain and suffering and pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr M Clarke | Zaparas Lawyers |
| For the Defendant | Mr J Batten | Hall & Wilcox |
HIS HONOUR:
1 This is an application for leave to commence proceedings for the recovery of damages for pecuniary loss and pain and suffering.
2 The plaintiff relies on s134AB(37)(a) of the Accident Compensation Act 1985 (“the Act”) and the injury in question is one to the left knee which is productive of an impairment of the left leg.
Background
3 The plaintiff is a fifty-year-old married man who has three daughters. He was only educated to Year 10 and then was apprenticed as an upholsterer. He has worked all his life in fairly heavy physical work of one type or another in factories, local government and companies requiring truck driving and forklift driving.[1]
[1]Plaintiff’s Court Book (“PCB”) 6, Transcript (“T”) 15-18
4 He commenced working with the defendant via a labour hire company who employed him for some six months. The defendant then put him on its own staff from 16 December 2001 onwards. He was involved in very heavy work in the drainage and management section and moved on to a concreting job in 2006.[2]
[2]PCB 7, T57-59
5 By late 2006 he noticed knee discomfort. Part of his job involved a lot of kneeling on concrete, grass, earth and rocky surfaces for an average of about two hours per day or effectively about ten hours per week.
6 He put up with symptoms and went to a local doctor at the Mill Park Super Clinic in about March 2008. He has had a succession of different general practitioners since that time, at that clinic and elsewhere, in his attempts to obtain some medical treatment to assist his condition. A good deal of treatment of one type or another has occurred, including three surgical procedures on his left knee.[3] His persistent efforts to get help have seen him described as a “medical immigrant” looking for treatment answers.[4]
[3]PCB 9–11 and 15–16
[4]PCB 56
7 The defendant’s WorkCover agent has paid for all of this treatment, as well as accepted liability for a s98C permanent impairment claim.[5] This is of evidentiary effect that I regard as significant in this case.[6]
[5]T8
[6]Ansett Australia Ltd v Taylor [2006] VSCA 171
8 While the defendant admits there is a compensable injury to the left knee, it now contests causation seemingly in view of the opinion of the last of the three doctors it retained, Mr Michael Dooley, orthopaedic surgeon. He examined the plaintiff in 2012 and 2013.[7]
[7]T9
9 The other issue for my determination is whether or not the plaintiff has satisfied the requisite loss of 40 per cent or more earning capacity as a result of the impairment of the left leg flowing from the injury.[8]
[8]Section 134AB(38)(e)(i)
10 The plaintiff left the defendant’s employment in September 2008 in circumstances that are not entirely clear. After that he found three jobs from his own endeavours. He worked for Australia Post, a caravan company and then for his brother-in‑law working in a hardware firm part-time. He continues to work in this lighter duties job which involves some delivery truck and forklift work together with other duties. He works five days a week at four hours per day, Monday to Friday. He goes in sometimes on a Saturday but does not carry out much, if anything, in the way of additional duties.[9] He has followed medical advice to work reduced hours for the last eighteen months.[10] I find on all the evidence this is sensible if he wishes to remain in work.
[9]T47, 49 and 50
[10]PCB 16
11 The plaintiff was the only witness required for cross-examination and I had the opportunity to observe him in the witness box. In this particular case this was very important. He is a very unsophisticated and rather simple man. He could barely follow any of the written material put to him in the witness box, in spite of considerable assistance given to him. At times he was not even on the right page after counsel had directed him to it. He effectively cannot read in any meaningful way. Moreover, he clearly did not understand a lot of the questions being put to him.[11] He was trying to be compliant at all times, but his comprehension and his ability to remember things were both very poor.
[11]T20-21, 23-24, 26, 29-31, 33-35, 37-38, 41-42, 53, 68
12 Nevertheless, I found him a genuine man who was honestly trying to answer as best he could at all times. I had no doubt about his credit and no doctor challenges it in this application. The accuracy of his recall, however, was very often extremely doubtful when it came to recounting precise facts, dates and events. I found he was a well motivated man in terms of work who at all times has been interested in finding and keeping employment.
13 The circumstances of him leaving the defendant are not entirely certain. However, it appears that there was an industrial proceeding concerning his departure. As best I can make out from the documents that have been tendered being the termination letter of the employer dated 25 September 2008[12] and the typed letter signed by the plaintiff on 18 September 2008[13], it would appear that a settlement was reached whereby the plaintiff formally resigned as agreed to by the parties.[14]
[12]Exhibit D
[13]Exhibit 3
[14]T25–33
14 Whether or not the plaintiff’s perception that having put in a WorkCare claim meant that his future with the defendant was under a cloud, or there was some bullying allegation that played a role, I am not able to say one way or another.[15] At the end of the day it does not really impact on the task I have in terms of judging the plaintiff’s residual earning capacity now, some five years later, in October 2013. It is clear when comparing the council’s letter and the plaintiff’s letter that there was an agreement reached that saw the end of his employment with the council in September 2008.
[15]T31–33
15 The plaintiff then found the three jobs mentioned. The first commenced in 2009.[16] These were through his own endeavours. He started his current employment in January 2010 when his brother-in‑law offered him a position.
[16]PCB 9–10
16 I accept the plaintiff is a hardworking man who has virtually always been in employment. His motivation for work is demonstrated by his work history as well as him obtaining three jobs in spite of injuring his left knee. His motivation is demonstrated also in his considerable efforts after being told by Mr Dooley, for the defendant, to lose weight.[17]
[17]PCB 16–17 and T 60
17 A video was shown in an attempt to impugn the plaintiff’s credit. It showed some activity in two afternoons after he ceased work at 12 noon. In one video it demonstrated him washing his vehicle in the driveway at home in March of this year, but there was nothing in that film, which involved very light activity for some fifteen minutes or so, that impacted on his credit.
18 On the other day, also in March 2013, he attended at his daughter’s hairdressing salon to try to adjust a lock on the front door that had been installed after her shop had been broken into. Her boyfriend put a lock on the door which was obviously malfunctioning and was locking people in the shop when they obviously did not want to be locked in.[18] The plaintiff tried to adjust it after work on that day. At times he was kneeling and squatting in the course of trying to fix the door. He described in evidence how he was kneeling on a 1‑inch-thick rubber mat. Again, this video did not demonstrate any capacity to do anything more than what I think any father would do in terms of trying to assist his daughter in circumstances that must have been quite embarrassing for the hairdresser. More importantly, it did not show any capacity to do any further paid employment on any regular day by day basis beyond this stated limit of four hours a day.
[18]T61
19 Furthermore, it was clear that the plaintiff demonstrated a limping gait at times in the videos. He often walked quite gingerly and consistently with difficulties with his left leg. Unexplained gaps appeared in the film. For no explicable reason suddenly breaks occurred in the film when the plaintiff was still clearly in view. The plaintiff was wearing shorts and a visible blue knee-brace was on his left leg. Admissions were made that there was more video material but it was not shown.[19] No explanation was given why this video was not shown and with the gaps in the video that I did see, the full context of the video surveillance is thus not known.
[19]T62
20 Perhaps most surprising of all, the defendant is well aware of where the plaintiff has worked over the last eighteen months or more and that he works as a driver. No material demonstrating his activities at work was shown. While it is his brother-in-law’s premises so access may not be readily available, the defendant well knows that the plaintiff goes out on the road on deliveries. No video of that sort of activity was shown to the Court. I am not persuaded the video evidence impacted adversely on the plaintiff’s credit.
21 There is nothing mentioned in any of the medical reports, either from the treaters or the medico-legal people on both sides, that hints at any exaggeration by the plaintiff of his symptoms or in his performance at clinical examination. I do not detect in the medical material any doubts about the genuineness of the plaintiff’s complaints when assessed against the background of radiology and clinical examination.
22 I accept the plaintiff’s account of his symptoms and disabilities. I find that on all of the evidence, the plaintiff has suffered an injury to his left knee in the course of his employment. That injury is best described as a meniscal tear with the development of or the aggravation of degenerative changes in his left knee joint.
Medical evidence
23 I note the recent repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied the repeal. Nevertheless, clear, proper and adequate reasons are required. I will not go through all of the medical material in any great detail but an examination of important aspects needs to be undertaken.
24 The general practitioner, Dr M Calic, who saw the plaintiff in 2008 and in 2009, does not really comment on the plaintiff’s current capacity for work. This report is not of great assistance.[20]
[20]PCB 35
25 Mr Cameron Norsworthy, orthopaedic surgeon, reported in 2009 and 2011, but last saw the plaintiff, it seems, in 2009. It was early times but he was guarded with respect to prognosis when he first reported.[21] He thought that it was unlikely there would be further tearing of the meniscus, but:
[21]PCB 40
“The early chondral damage will slowly deteriorate however, and it is likely that he will develop osteoarthritis at some stage in the future.”[22]
Thus, from early days he saw the presence of an arthritic condition as a probability.
[22]PCB 40
26 Mr A Kiellerup, orthopaedic surgeon, reported in September 2011:
“I would expect Mr Shortal to experience ongoing symptoms. He has progressive arthritis affecting the left knee. It is possible that he will come to further surgery in the form of high tibial osteotomy, unicompartmental knee joint replacement or a total knee joint replacement.”[23]
[23]PCB 42
27 A little further on he said:
“I think it would be safe to conclude that the arthritic changes present in Mr Shortal’s knee are related in part to his knee injury.”
28 He described the prognosis in rather gloomy terms:
“I think Mr Shortal will continue to experience relentless deterioration in his knee.”[24]
[24]PCB 42
29 In a further letter to GIO, Mr Kiellerup stated that following several arthroscopies, the plaintiff “has never really recovered”.[25] His patient faced this prospect:
“… regardless of what he does, he can’t escape from the relentless progression of his arthritis.”[26]
[25]PCB 57
[26]PCB 57
30 This surgeon also saw some difficulties with respect to the plaintiff being able to continue as a truck driver into the future.[27] In May 2012, he describes further consultations and investigation and after a bone scan confirmed arthritis, he recommended a high tibial osteotomy should the symptoms become unacceptable.[28] Compared with the reports that pre-date the bone scan, I read the 2012 report as indicating an opinion that this arthritis is worsening with time.
[27]PCB 42
[28]PCB 46
31 In a final report of July this year, there is no reference to any consultation since 12 May 2012,[29] but he does restate a diagnosis that is unchanged and advice that the plaintiff should avoid further surgery for as long as possible. Taking the surgeons’ views overall, it is clear that such further surgery is probably inevitable and is just a matter of time.
[29]PCB 48
32 Other reports include one from a Dr I Reynolds. He indicated he could not comment on the plaintiff’s current fitness for work as he had not seen him for some time, but he stated quite unequivocally that the plaintiff had developed medial compartment arthritis.[30]
[30]PCB 53
33 More up-to-date general practitioner opinion comes from Dr H Baglar who started seeing the plaintiff in July 2012. He describes the plaintiff’s plight:
“Greg is a habitual medical immigrant, shifting from one doctor to another, looking for the ultimate answer for his condition. Unfortunately, he is chasing an elusive answer which he never will find.”[31]
[31]PCB 56
34 In January 2013, Dr Baglar thought that four hours for five days per week with restrictions was about the maximum amount of time the plaintiff could work.[32] I accept this evidence.
[32]PCB 58
35 In a very up-to-date report from this local doctor he could not be more gloomy in saying:
“... that joint is doomed and the osteoarthritis in that joint is inescapable. Both surgeons in the past commented along these lines.”
The diagnosis he repeats as:
“Recurrent medial meniscus tear in his left knee and associated osteoarthritis.”[33]
[33]PCB 61
36 He felt that the future meant:
“... his arthritis will progress unrelentingly. His current management is analgesics, NSAIDs, avoidance of heavy strenuous activities. I am of the opinion that his left knee may require partial or total knee replacement one day. Considering the tasks he had to perform in the line of his previous vocation, as a concreter, I believe his current state is the result of his employment.”[34]
[34]PCB 61–62
37 I accept the evidence of the treating doctors, when viewed as a whole, establishes a meniscal tear with arthritic changes in the plaintiff’s left knee that occurred in compensable circumstances in the course of his employment with the defendant.
38 Mr Garry Grossbard, orthopaedic surgeon, was the only medico-legal witness engaged by the plaintiff and he examined him on 21 May 2013. His opinion is quite clear:
“This man’s meniscus injury, subsequent surgical procedures and progression of degenerative change relate to his work as a concreter and, in particular, to the incident of 17 March 2008. Mr Shortal will develop progressive degenerative change in his left knee and in the future is likely to require further surgical intervention. I would suggest his surgery would probably take the form of a total knee joint replacement, although the option of a tibial osteotomy is reasonable.”[35]
[35]PCB 72
39 Apart from taking a history of some problems in relation to pushing himself to get through his day at work, he does not really comment further about the plaintiff’s residual capacity.
40 The defendant had the plaintiff examined by three specialists. The first was Mr Timothy Gale, general surgeon. He noted the plaintiff was a poor historian, which I have already commented on.[36] His diagnosis was as follows:
“The worker’s condition is degenerative changes in the left knee, probably symptomatically aggravated by the nature of his employment duties prior to March 2008, and also a medial meniscal tear requiring partial meniscectomy on two occasions.”[37]
[36]DCB 8
[37]DCB 10
41 He notes that this diagnosis is based on a clinical assessment as well as a series of doctors’ reports and radiology sent to him. It is a report directed towards an AMA permanent impairment assessment and he found a percentage of impairment that is not relevant numerically. However, he indicated the condition was stable and obviously permanent.[38] He also noted that he thought that the degenerative changes will progress and become increasingly symptomatic as well as requiring possible surgical treatment.
[38]DCB 11
42 Professor Vernon Marshall, a Professor of Surgery, examined the plaintiff in April 2011. His diagnosis was:
“Work strain injury to left knee with two previous arthroscopies. Persisting left knee pain with exacerbation arthritis and probable meniscal injury and traumatic chondromalacia.”[39]
[39]DCB 18
In a further statement he said:
“I would accept he sustained an original injury, as described, and his current continuing symptoms I believe are to a major degree contributed to from the original injury. I believe the request for a further arthroscopic surgical debridement procedure is appropriate for the claimed injury.”[40]
[40]DCB 18
43 As the evidence has indicated, that further procedure took place and while Mr Gale and Professor Marshall both saw the plaintiff before the third procedure, it is clear their evidence is very similar to that of the treaters on causation, the ongoing problems and the need for treatment.
44 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in June 2012 and again in May 2013. Mr Dooley is on his own, in that he expresses a view that the osteoarthritis of the left knee joint is a constitutional condition. He seems to accept a meniscal tear but has a different view to virtually everyone else with respect to the osteoarthritic condition. He felt it was a naturally occurring condition and while he thought that:
“Symptoms in relation to naturally developing osteoarthritis of the medial side of the joint can be precipitated by recurrent kneeling, squatting etc, ongoing symptoms, once prolonged awkward postures are discontinued, relate to the natural evolution of the underlying degenerative condition.”[41]
He thought that the plaintiff was overweight and that he should lose weight, and clearly the plaintiff has followed this advice.[42]
[41]DCB 26
[42]DCB 26, PCB 16-17, T60
45 After reviewing the plaintiff in May 2013, he makes a comment in these terms:
“In ordinary clinical practice, it is common to see middle-aged patients with moderate medial compartment osteoarthritis of their knee joint. The fact that a lot of treatment options are suggested tells us that there is no one good treatment.”[43]
[43]DCB 30
46 He thought that, in spite of there being no causative link that is relevant, the condition will evolve slowly in time and may develop to a level where:
“... significant knee pain that interferes with his ability to stand, walk and be comfortable at rest or at night”
will eventuate.[44] He felt that the plaintiff would be advised to avoid heavy physical work or work involving a lot of kneeling and squatting.
[44]DCB 30
47 Obviously Mr Dooley then was asked by the defendant’s solicitors to comment further on some attached documentation, which unfortunately is not set out anywhere in the three reports from this surgeon. He says, in a short letter of 27 June 2013:
“In my opinion, Mr Shortal’s current symptoms in relation to his left knee relate mainly to naturally occurring degenerative osteoarthritis of the left knee joint, affecting mainly the medial compartment. The condition has developed separate of employment. I believe that one would have to accept that some of Mr Shortal’s ongoing symptoms relate to the fact that he has undergone three knee arthroscopies as well.”[45]
[45]DCB 32
48 This seems a suggestion the surgery itself is somehow a cause. Looking at Mr Dooley’s material overall, I find it unconvincing. He does not adequately explain why this condition would naturally develop and how that fits in with his comment that recurrent kneeling and squatting can precipitate symptoms but once those awkward postures are discontinued the symptoms cease. This is a case in which the plaintiff is talking about some two hours a day every day over a period of several years in which he is kneeling on the rough surfaces as I have already described. He is a very heavy individual. Apparently, according to Mr Dooley, as soon as he discontinues doing that work the causative link ceases. It is not explained adequately how this follows.
49 In any event, I do not accept the thesis of Mr Dooley that it is just a natural condition that this plaintiff is suffering from with respect to his knee, in the face of what I consider an overwhelming body of evidence to the contrary from both treating doctors and medico-legal experts on both sides. Mr Dooley’s reports are brief. He takes a very brief and in my view inadequate history. He does not describe what attachments or other documentation he is relying on sufficiently or at all. He does not explain how he comes to this view about it being a naturally occurring condition. His reasoning is not clear. He opines about the significance of the plaintiff being overweight and how losing weight will improve the arthritic knee pain yet in spite of the plaintiff following that advice and losing 21 kilograms his symptoms have not improved. I reject Mr Dooley’s opinion about the lack of a causative link in all the circumstances of this case.
50 The parties have agreed with respect to the relevant figures in terms of arithmetic. $863 per week was the 2007-2008 gross wage that reflected the plaintiff’s pre-injury earning capacity. Now, some five years later, the plaintiff’s gross weekly wage is $433 per week and $518 per week is agreed as the 60 per cent mark.
51 I accept that the plaintiff is working at his maximum capacity and that he has a residual capacity at the present time to earn $433 per week but no more than that, bearing in mind his motivation to find work and to keep working. This is one of those cases where there is no theoretical employment capacity to be exercised as I find the plaintiff is in fact, five days a week, exercising his earning capacity to the maximum. In other words, the proof is largely in what he is doing now and has done over the last eighteen months or so. I accept that he can reasonably do no more on the probabilities. Accordingly, for the reasons I have mentioned, I consider that the plaintiff has established a permanent loss of earning capacity of 40 per cent or more and I grant leave to bring proceedings for the recovery of damages for pecuniary loss.
52 In accordance with recent practice and authority, it is not necessary to go onto any analysis of the pain and suffering consequences as it follows I grant leave to bring proceedings in that regard also. I should say however, that the pain and suffering consequences alone would satisfy a grant of leave. Without going into any detailed analysis as it is unnecessary in view of my other findings, the plaintiff’s persistent ongoing pain and his description that he is never free of pain suffices in that regard. He is stoical about it.[46] He still requires regular daily medication, he is restricted in walking, standing for long periods, needs to avoid using stairs, has undergone a litany of treatment including three procedures and has gone from doctor to doctor as a “medical immigrant”. He is facing, at only fifty years of age, major surgery which on all of this evidence is inevitable.
[46]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph 47; Aburrow v Network Personnel [2013] VSCA 46 at paragraphs 11 and 15
53 Some comments are warranted as to other evidence and arguments. Several exhibits were tendered that do not impact meaningfully on credit or the issues. The Register of Injury fits into this category.[47]
[47]Exhibit 4
54 The report of Dr M Bloom of 29 January 2009 to the WorkCover agent has some limited relevance.[48] He records how the recurrent knee symptoms gradually worsened in spite of some relief from surgery.[49] He also notes the plaintiff’s condition in these terms:
“His current condition continues to be work related and relates to the original meniscal tear.”[50]
[48]Exhibit C
[49]Exhibit C – page 2
[50]Exhibit C – page 4
55 Two further operations followed Dr Bloom’s examination, so the report is now out of date, but it is worth noting that he considered the plaintiff was “a motivated man” when it came to work.[51] Dr Bloom thought there had been further meniscal injury, and he makes the following statement:
“If liability is accepted for the original injury then it follows that liability should be accepted for ongoing problems.”[52]
[51]Exhibit C – page 5
[52]Exhibit C – page 3
56 The defence to this application is that while it is accepted there was a compensable left knee injury, it was really a meniscal tear and no more. I have already noted there is evidentiary weight in the admission of liability for the impairment claim which was accepted on 25 February 2010.[53]
[53]T96
57 The defendant argues the current symptoms of pain and disability are related to a naturally occurring constitutional arthritis.[54] I have dealt with this in reviewing the medical evidence and the argument is not made out. On all the medical material, I find the arthritic condition resulted from or was materially contributed to by the plaintiff’s employment with the defendant.
[54]T79 and 86
58 An argument was made that there was a link between the current knee problems with a new injury or new pain due to the plaintiff’s working at Australia Post after leaving the defendant.[55] I do not find this argument sound. There is no evidence from Australia Post or its records.[56] The plaintiff gave clear evidence to the contrary when a suggestion was put that his knee became a problem when working for Australia Post: “It’s always been a problem.”[57] A little later on, when the allegation was put again, the plaintiff replied: “I have always had the knee problem.”[58] Further in cross-examination, he was pushed on the issue of the knee worsening in that job, and he said: “It’s still the same.”[59]
[55]T85
[56]T85
[57]T41
[58]T42
[59]T42
59 There is no evidence or inference to be reasonably drawn that work with Australia Post further aggravated or caused any “new pain”.[60] The plaintiff continued to suffer the ongoing knee pain and impairment that I find resulted from or was materially contributed to by his employment with the defendant when he worked at Australia Post and indeed, at his other two places of employment since 2008.
[60]T86
60 The plaintiff summed it up best of all when he was asked whether he had ever been free of pain since March 2008: “Not really, no, I’ve always had pain.”[61] I accept that evidence.
[61]T59
61 The argument that the video put “to the sword” his evidence about how he typically feels after a day at work is not made out.[62] The circumstances of his assisting his daughter have been described and the plaintiff’s account of how he was after a typical day is one of an aching, throbbing knee after being on his feet too long at work.[63] The video showed what he did on “the odd occasion”[64] and not typically. I accept the majority of the time, that apart from picking up his daughter, he sits at home and puts his feet up.[65]
[62]T87
[63]T13
[64]T56
[65]T61
62 I find the plaintiff is working to his full capacity for an unskilled man, performing physical duties, who has virtually no reading and writing skills. I do not accept the defendant’s argument that he has further capacity that is not being exercised. He requires Endone towards the end of the week and needs to normally wind down by Thursday.[66] Sensibly, as he drives a truck and a forklift, he avoids taking strong medication.[67] He wears a brace all the time. It is noteworthy that even on these reduced hours, he is “looked after” by his brother-in-law, who luckily is his employer. Others do the heavier tasks and the plaintiff does the lighter work.[68]
[66]T13–14
[67]T13
[68]T49
63 I find this consistent with the plaintiff’s evidence that he is, in effect, working to his limit. I find the plaintiff has suffered a permanent loss of earning capacity of 40 per cent or more.
64 It is worth noting that the plaintiff has no capacity for anything other than unskilled work and no skills for employment involving paperwork or any significant comprehension of difficult tasks. It was patently obvious in the witness box the difficulties he had and some of these examples are recorded in the transcript.[69] I note he is also relatively uneducated.
[69]T20–21, T23–24, T26, T29–31, T33–35, T37–38, T41–42,T53, T68
65 He is not a suitable candidate for any retraining or alternative work and indeed, he is fortunate to be in the employment that he has obtained at the present time with the assistance of an understanding brother-in-law.
66 For the above reasons, I grant leave to bring proceedings for pecuniary loss damages and for pain and suffering damages.
67 I will hear the parties as to costs.
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