Smilevska v George Weston Foods Ltd
[2014] VCC 248
•14 March 2014
| 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-12-05866
| DOBRICA SMILEVSKA | Plaintiff |
| v | |
| GEORGE WESTON FOODS LTD and VICTORIAN WORKCOVER AUTHORITY | First-named Defendant Second-named Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 March 2014 | |
DATE OF JUDGMENT: | 14 March 2014 | |
CASE MAY BE CITED AS: | Smilevska v George Weston Foods Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 248 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the right arm and/or left arm – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Gorton SC with Mr R Forsyth | John Dellios & Associates Pty Ltd |
| For the Defendants | Mr N Horner | Herbert Geer |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the first‑named defendant.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
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.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the right arm and/or left arm.
6 The plaintiff relied upon two affidavits, sworn 4 May 2012 and 4 March 2013. The plaintiff and Mr Lo, neurosurgeon, were cross-examined. I have not summarised the plaintiff’s affidavits and evidence given through an interpreter. Nor have I summarised the evidence of Mr Lo. However, I will refer to the relevant evidence of the plaintiff and Mr Lo in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a) “the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the first defendant;[2]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) “the consequences” to the plaintiff of her impairment to the left and right arm in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c)
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[5]
[5]Section 134AB(19B) and 38E of the Act
(a) that at the date of hearing, she had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[6]
[6]Section 134AB(38)(e)(i) of the Act
(b) that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more,[7] and
(c) that even with rehabilitation and retraining, she will still sustain a loss of 40 per cent or more.[8]
[7]Section 134AB(38)(e)(ii) of the Act
[8]Section 134AB(38)(a) of the Act
10 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[9]
[9]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
11 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
12 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[10]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[11]
[10][2009] VSCA 181
[11](supra) at paragraph [42]
13 The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
14 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard;[12]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[13]
[12]Section 134AB(38)(j) of the Act
[13] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The issues
15 Counsel for the defendants informed the Court the issues were:
·whether the plaintiff’s current bilateral wrist condition has been caused or materially contributed to by her employment with the first defendant.
· whether the plaintiff’s current bilateral wrist condition meets the required test for either loss of earning capacity or for pain and suffering.
Investigations
16 On 19 September 2008, Dr David Freilich, neurologist, performed a nerve conduction study. The study concluded that the findings are those of bilateral carpal tunnel syndrome, worse on the left.
17 On 17 July 2012, Dr Freilich performed a nerve conduction study which concluded the findings are those of a left carpal tunnel syndrome.
18 On 21 August 2012, Dr Freilich performed a nerve conduction study. The conclusion was the findings are those of a right carpal tunnel syndrome.
The Plaintiff’s medical evidence
Mr Patrick Lo
19 In May 2012, Mr Lo, neurosurgeon, reported that since April 2010, he had treated the plaintiff on referral from her general practitioner. She complained that in the preceding few months, prior to her first presentation, she began experiencing bilateral hand tingling and numbness that woke her at night. Mr Lo said the plaintiff suffered from bilateral carpal tunnel syndrome with bilateral median nerve compression at the wrists. He performed median nerve decompression of the left and right wrists in August and December 2010 respectively.
20 It was his opinion that the plaintiff’s bilateral carpal tunnel syndrome was work related. As a packer, the plaintiff was required to regularly use her hands in moving various items. He said the plaintiff was unable to return to full pre-injury work. He imposed restrictions of avoiding activities that require repetitive hand movements or activities that cause compression of her wrists, such as lifting or clasping heavy weights. He thought the plaintiff had a capacity for suitable employment in the open market.
21 Mr Lo said the nature of the median nerve compression pathology is that recurrence can occur.
22 In December 2012, the plaintiff complained of recurrent bilateral carpal tunnel syndrome. A repeat nerve conduction study confirmed a recurrent right-sided carpal tunnel syndrome and median nerve compression. He recommended conservative and physical therapy. He imposed restrictions of avoiding:
· lifting heavy weights up to a maximum of five kilograms in total;
· repetitive hand and finger movements;
· gripping and pulling on items; and
· avoiding heavy impact upon the operative site and pressure upon the palms.
23 He recommended she wear a wrist brace for support. He said the plaintiff did not have a current capacity for either pre-injury or suitable employment. In March 2013, Mr Lo said the plaintiff was reluctant to undergo further surgery due to her use of Warfarin for a cardiac valve. Accordingly, she was to be treated conservatively.
Dr N Tadros
24 In May 2013, Dr Tadros, general practitioner, confirmed that the plaintiff underwent nerve conduction studies bilaterally, which proved to be positive on both sides. After surgery, she returned to work, initially on light duties and then full duties. In 2012, she developed a recurrence of symptoms, was referred for further nerve conduction studies, which were positive, and referred to Mr Lo.
25 Dr Tadros said the plaintiff had had decompression on both sides. The operation was successful initially but the recurrence of carpal tunnel syndrome was inevitable. He said, because of its recurrence, due to her return to pre-injury duties, she is not fit for that type of work. Due to her age, education, work experience and medical condition, in his opinion, the plaintiff is unfit for work in the long term.
Dr Leslie Sedal
26 In May 2013, Dr Sedal, neurologist, examined the plaintiff at the request of the plaintiff’s solicitor. It was his opinion that the plaintiff suffered bilateral carpal tunnel syndrome, worse on the left side. She had decompression surgery of each carpal tunnel in two operations in August and December 2010. The operations initially relieved her symptoms, but over a period of time and with the resumption of full-time duties, she suffered a return of symptoms. He said the plaintiff’s work made a significant contribution to the development of her bilateral carpal tunnel syndrome. He expected that she will continue to suffer from her present symptoms in the long term.
27 In relation to her work capacity, he said she is not fit to return to any kind of work that requires rapid, repetitive or forceful use of her hands, wrists and arms. Taking into account her age and educational background, he thought it would be difficult for her to retrain for work that is not factory-based and manual. It would be highly unlikely that she will find suitable work in the future.
Associate Professor Richard Stark
28 In June 2013, Associate Professor Stark, neurologist, examined the plaintiff at the request of the plaintiff’s solicitors. He said the plaintiff suffered from bilateral carpal tunnel syndrome which had been treated surgically. She returned to work until May 2011 when the factory closed. She continued to have the same symptoms and has had no further surgery. He said there were persisting symptoms in both hands and the nerve conduction studies showed some residual dysfunction of the median nerve on both sides. He said this may occur despite technically successful surgery. He accepted the plaintiff suffered from a carpal tunnel syndrome. He said her employment was a significant contributing factor. He said she has no current work capacity. Further, the plaintiff has worked as a factory hand, has limited language skills in English and no training to work in any other capacity. He said she had no capacity for suitable employment in the open market. He thought it unlikely that any retraining would improve the plaintiff’s employability. He said the consequences of the plaintiff’s work injury are likely to continue for the foreseeable future.
Mr Bill Radley
29 In January 2014, Mr Radley, psychologist and vocational assessment specialist, interviewed the plaintiff at the request of the plaintiff’s solicitor for the purpose of a vocational assessment report. After reading medical and rehabilitation reports, information about the plaintiff’s background and work skills, interviewing the plaintiff and conducting a clinical assessment and reviewing results of vocational testing, it was his view that the plaintiff had no current capacity to return to her pre-injury employment, or any similar employment, now or in the foreseeable future.
30 He said the work duties she performed in the past were of a medium to heavy strenuous nature. The plaintiff engaged in moderate and/or repetitive lifting, bending, twisting and stooping, having full use of her spine, shoulders and limbs and being able to stand, walk or sit for extended periods of time. He said she had no capacity to return to any type of alternate employment for which she currently has the necessary skills, training and/or experience. Given her age, low level of education, poor ability to read or write English and low level of general intelligence, she had no capacity for any type of occupational training. He said this would continue into the future.
31 He noted that the plaintiff had not been offered any form of rehabilitation assistance since her injury. He said, even if such assistance were provided, it would not change the prospect of her returning to the workforce in the future. He said she would benefit from a referral to a multi-disciplinary pain management program to improve her ability to manage her pain and injury impairment.
The Defendants’ medical evidence
Dr David Elder
32 In October 2011, Dr Elder, occupational and environmental medicine specialist, examined the plaintiff at the request of the defendants’ insurer for the purpose of an impairment assessment. He was aware that liability had been accepted by the defendants’ insurer. He said the plaintiff had surgically-treated bilateral carpal tunnel syndrome with left motor and sensory residua and right residua of sensation only. There is no motor dysfunction in the right side.
Dr Tony Kostos
33 In August 2013, Dr Kostos, rheumatologist, examined the plaintiff at the request of the defendants’ insurer. Dr Kostos said the plaintiff developed bilateral carpal tunnel syndrome and noted her symptoms were worse on the left side. He said the syndrome is a common idiopathic condition in middle-aged women and is strongly associated with obesity and diabetes. He said the type of work the plaintiff was doing has not been associated with the development of carpal tunnel syndrome. He noted that her symptoms and electrophysiological changes were always worse in her left hand, her non-dominant hand.
34 It was his view that employment did not play a part in the development of her symptoms. He said there were discrepancies and inconsistencies on physical examination, particularly in relation to a non-anatomical sensory loss. He said that since she had stopped work, there had not been any change in her condition and she could return to pre-injury work.
Mr Murray Stapleton
35 In February 2014, Mr Stapleton, plastic and hand surgeon, provided a medical report at the request of the defendants’ solicitor. It was his view that the plaintiff had carpal tunnel syndrome which was not completely corrected by surgical decompression. He thought her short and long-term prognosis was poor.
36 He said the condition is not an injury; it is a condition from which she would suffer to the same degree whether she worked or did not. He said her employment did not cause the problem, nor has the pathology been aggravated, exacerbated or accelerated by her employment. He said surgery is her only option. He accepted the plaintiff’s enjoyment of life and daily activities have been affected. He said that the condition is a genetically pre-determined problem, aggravated by the hormonal change of menopause, her diabetes and her body weight.
Video surveillance
37 I was informed that the plaintiff was subject to surveillance on 17 December 2013. I was shown film which lasted for approximately 12 minutes. It showed the plaintiff driving a vehicle to a supermarket. The plaintiff was seen inside the supermarket in the vegetable section. She was observed lifting a watermelon with difficulty. She then lifted a second and third watermelon without difficulty. She returned one of the watermelons to the stand. She was shown selecting small objects in the vegetable section. The film showed her pushing her trolley to the boot of her car. She placed the bags on her arm, away from her wrist, to lift them into the boot. She lifted a carton of Coca-Cola into the boot. Other than the lifting of the watermelons and the carton of Coca-Cola, the activity demonstrated was not strenuous. The film did not show her performing any activity that was inconsistent with her evidence. Accordingly, I accept that the film did not assist the defendants’ case.
Credit of the Plaintiff
38 The plaintiff, aged sixty, migrated from Macedonia and gave her evidence through an interpreter. She had limited education, leaving school aged fourteen or fifteen. She worked with the first defendant for thirty years as a packer. There was no significant challenge to the plaintiff’s credit. She answered questions as best she could. She made concessions, namely that she lifted the watermelon. She was consistent in what she told the doctors about her medical condition. She was described by her general practitioner as “an honest, hardworking woman who has worked hard over many years to support her family”. This was consistent with my assessment of the plaintiff and what she told the Court about her work. Mr Lo described her as a delightful woman. I accept the plaintiff as a witness of truth.
Analysis of the evidence
39 Counsel for the defendants submitted that there has been a clearly accepted claim for the carpal tunnel but that the plaintiff’s present condition of the wrists is not that condition. It is more likely that non-work factors such as obesity, menopause and domestic duties caused the recurrence of the condition in August 2012.
40 The plaintiff’s evidence was that in May 2011, she reported to Mr Lo that she had an increase in symptoms which had not been alleviated by the surgery. She worked on in the face of the symptoms, knowing that her work was coming to an end as the factory was closing. Mr Lo has no record of such complaints. However, Mr Lo agreed that once a person has a work-related carpal tunnel syndrome which is operated on, resulting in a reduction in symptoms, that person has an increased vulnerability to further symptoms, because the mechanism of the injury was already present. If the person becomes obese, develops diabetes, performs domestic duties and the symptoms recur, they are more likely to have as a cause the work-related injury. He agreed that if the symptoms were present when he saw the plaintiff in May 2011, they were work related[14].
[14]Transcript 38-39
41 This view is reinforced by what Dr Sedal said as to the non-work factors. He said the plaintiff performed rapid, repetitive and forceful work with both hands for thirty years. Except for in the last two years, there was no rotation of duties. He accepted that the plaintiff’s work was a significant contributing factor to the development of her bilateral carpal tunnel syndrome. He considered whether there were other contributing factors. He said she did not have any fractures or separate injuries to her wrists, nor did she have any carpal tunnel symptoms during her two pregnancies; she did not suffer from thyroid disease or rheumatoid arthritis. He said the diabetes can be associated with carpal tunnel syndrome, but the plaintiff suffered from it relatively recently, the diabetes post-dated the development of her symptoms. In addition, the brisk reflexes in her legs would be against any significant diabetic neuropathy. He accepted that carpal tunnel syndrome tends to come on around the time of menopause, which applied to the plaintiff. However, although hormonal factors, such as menopause, may contribute, it did not negate the importance of the mechanical factors related to her employment.
42 Associate Professor Stark was aware of the plaintiff’s recent diagnosis of diabetes and the timing of her menopause. He concluded that the recurrence of her condition was work related
43 The view of Dr Kostas and Mr Stapleton was that the mechanical factors of employment had no part to play in the plaintiff’s condition. Dr Kostas said it was a “common idiopathic condition in middle aged woman and is strongly associated with obesity and diabetes.[15]” Mr Stapleton said the condition is “a genetically predetermined problem and one of progression”.
[15]DCB 3
44 I accept the majority view, of Mr Lo, Dr Sedal and Associate Professor Stark. First it is a view expressed by the majority. Secondly, Dr Sedal considered whether there were other non work contributing factors, which he discounted with reasons. Finally, Dr Kostos and Mr Stapleton, did not have an accurate history of the plaintiff’s medical condition namely, when the plaintiff developed diabetes and her weight at the time of developing the condition in 2008.
45 Accordingly, I accept that employment was a contributing factor to the plaintiff’s condition.
46 The Court must examine the consequences of a physical impairment in the separate context of ─
(a) pain and suffering, or
(b) loss of earning capacity.
47 As stated, the provisions of s134AB(38) of the Act provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[16] The subsection then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[17] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, for both pain and suffering and loss of earning capacity).[18]
[16]Section 134AB(38)(b), (c) and (d)
[17]Section 134AB(38)(e), (f) and (g)
[18]Advanced Wire & Cable Pty Ltd v Abdulle (supra) at paragraph [63]
48 The plaintiff’s evidence was that between the time of diagnosis and surgery, she continued with her normal duties. After the surgery, on each occasion, she returned to work on restricted duties but after a time, she was returned to her pre-injury duties, with instructions to do what she could. Her inability to keep up resulted in other workers complaining. She persevered, as she needed the money. She knew she would be unlikely to obtain alternate employment with the restrictions imposed by her doctor. She knew the factory was due to close in May 2011 and she would be entitled to a package. I accept the plaintiff’s evidence is that in 2011, she ceased employment because of the nature of her injury and the factory closed.
49 The current medical evidence expressed by the majority of medical witnesses is that the plaintiff has no capacity for pre-injury employment or suitable employment which is likely to continue for the foreseeable future. Mr Lo, Dr Tadros, Dr Sedal and Associate Professor Stark said that the plaintiff has no capacity for pre-injury work which requires rapid, repetitive or forceful use of her hands, wrists and arms. Taking into account her age, educational background and work experience, it is highly unlikely that the plaintiff will be able to find suitable work in the future.
50 In June 2013, Associate Professor Stark said, for practical purposes, she has no current work capacity. He said that the work injury clearly restricted her capacity for work. She managed to perform some of her duties for a period of time after her surgery, but there is now no prospect of her being employed because of her degree of incapacity. He noted the plaintiff’s work experience was as a factory hand, she had limited language skills in English and no training to work in any other capacity. He believed she had no capacity for suitable employment in the open labour market. He said that it was unlikely that any retraining would improve the plaintiff’s employability. He believed the consequences of the work injury are likely to continue for the foreseeable future.
51 Dr Sedal said the plaintiff is unfit to return to any kind of work that requires rapid, repetitive or forceful use of her hands, wrists and arms. Taking into account her age and educational background, it would be difficult for her to retrain for work that is not factory-based and manual. Taking into account the continuing carpel tunnel syndromes, her other medical problems, her age and educational background, it is highly unlikely that she would find suitable work or that she will work again.
52 Dr Tadros said the plaintiff is not fit for pre-injury work. Due to her age, education, work experience and medical condition, the plaintiff is likely to be unfit for work for a long time to come.
53 In December 2012, Mr Lo said that given the plaintiff had a recurrence of the right-sided carpel tunnel syndrome with median nerve compression, he did not believe she could return to her pre-injury employment or other suitable employment.
54 As to the other medical witnesses, Mr Stapleton and Dr Elder did not express a view as to future employment. Mr Kostos said that since the plaintiff stopped work, there has not been any change in her condition. Therefore, she can return to work in the duties she was undertaking at the time of her retrenchment.
55 Accordingly, I accept the majority view of the medical witnesses which is that the plaintiff has no capacity for pre-injury employment nor suitable employment. That view was reinforced by Mr Radley, a psychologist and vocational assessment specialist. He concluded that the plaintiff had no current work capacity to return to her pre-injury employment or alternative employment. She had no capacity for any type of occupational re-training in view of her age, low level of general education, her inability to read or write in English, low level of general intelligence, limited ability to use either of her arms or hands and her high level of general mental confusion, including some impairment of concentration and short-term memory.
56 I accept the opinion of Mr Radley that re training will not assist the plaintiff.
57 The plaintiff is aged sixty years. Most of her employment has involved manual and process work. The evidence is that she worked with the first defendant for thirty years, continued to work up until her respective surgeries and returned to work following her surgeries, until she was retrenched in May 2011.
58 Given the medical evidence, the vocational assessment, and having observed the plaintiff and her lack of sophistication and poor English skills, I am satisfied that the plaintiff cannot return to physical work, the work which she was doing prior to the injury. She has no transferable skills. In view of her age and the fact that she has worked for the first defendant for the past thirty years, I accept this represents a significant loss to her.
59 Given the length of time the injury has persisted and the medical evidence, I am satisfied that the plaintiff’s impairment is permanent.
60 I am satisfied that it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment; indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
61 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
62 Given the medical evidence that the plaintiff’s injury has continued since 2008, I find that the plaintiff is effectively out of the workforce for any suitable employment as a result of the impairment to her right and left arm and the consequences flowing from that. Accordingly, there is no need to go into any analysis of wage rates, as I do not accept that she has any residual capacity when the medical restrictions placed on her by the medical witnesses are looked at, together with the vocational report of Mr Radley, in the context of the real commercial world.
63 I accept that the plaintiff would not be able to complete vocational retraining. There was no evidence that rehabilitation would assist the plaintiff. Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40% or more.
64 In view of the matters I have described, the plaintiff has discharged the onus with respect to her impairment of the right and left arm regarding her loss of earning capacity. I grant leave to the plaintiff to bring proceedings for pecuniary loss damages. In accordance with Advanced Wire & Cable Pty Ltd v Abdulle,[19] it follows I also grant leave to bring proceedings for pain and suffering damages.
[19](Supra) at paragraph [63]
65 I will hear the parties on costs.
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