Styles v CSR Limited

[2015] VCC 1142

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-14-00918

BRUCE WILLIAM STYLES	Plaintiff
v
CSR LIMITED (ACN 000 001 276)	Defendant

---

JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	13 and 14 August 2015
DATE OF JUDGMENT:	25 August 2015
CASE MAY BE CITED AS:	Styles v CSR Limited
MEDIUM NEUTRAL CITATION:	[2015] VCC 1142

REASONS FOR JUDGMENT
---

Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – injury to the cervical spine – pain and suffering and pecuniary loss damages

Legislation Cited:     Accident Compensation Act 1985, s134AB
Judgment:                 Application granted in respect to pain and suffering damages.  Application for pecuniary loss damages dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W R Middleton QC with Ms C A Kusiak	Abbey Injury Law Pty Ltd
For the Defendant	Mr A Middleton	Gadens Lawyers

HIS HONOUR:

1       In this application the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering and pecuniary loss of consequences of an injury suffered to his cervical spine in the course of his employment with the defendant.

2       In the proceeding:

·The plaintiff relies upon a number of affidavits sworn by him.

·The plaintiff gave viva voce evidence whilst cross-examined.

·Otherwise the parties rely upon medical and like evidence adduced by them.  In addition, the defendant relies upon video surveillance evidence which was shown to the plaintiff in the course of the hearing and tendered by the defendant.

3      There is no issue that the injury, the subject of this incident, involves an aggravation of a pre-existing injury which the plaintiff had suffered in the course of his employment with the defendant.  Relevantly, with respect to the plaintiff’s earlier injury, the plaintiff underwent a 2-level cervical discectomy undertaken by Mr Craig Timms on 27 August 2008.

4      Given the issues to be determined in the application, it is appropriate that I set out briefly a relevant chronology as to the plaintiff’s prior injury and the injury the subject of this application. 

·22 August 2008, the plaintiff undergoes a 2-level cervical fusion.

·        October 2008, the plaintiff returns to modified duties.

·December 2008, the plaintiff returns to his usual duties as a glazier.

·20 March 2012, the plaintiff submits a WorkCover Claim with respect to the injury the subject of this application.

·        July 2012, the plaintiff undergoes a 2-level cervical foraminotomy performed by Mr Craig Timms.

·September 2012, the plaintiff returns to restricted duties with the defendant which did not involve glazing work.

·15 February 2013, the plaintiff is made redundant and ceases working with the defendant.

5       It follows, having regard to the chronology which I have set out above, that the plaintiff presented with a pre-existing condition in this instance and that the onus is upon the applicant to establish the extent of the aggravation of any pre-existing condition to his spine with which he presented immediately prior to the injury the subject of this application for the purpose of establishing that the consequences of the aggravation of that pre-existing condition constitute a “serious injury” within the definition of the Act.

The Plaintiff’s evidence as to his stabilised condition following the surgery of the 27 August 2008

6       In his affidavit dated 22 February 2010, the plaintiff reported the presence of the following symptoms:

·Left arm pain which was not constant, but which came and went.

·A marginal reduction of grip strength in his left hand.

·Neck pain, which he described in the following terms “… not a great deal of it, if I am careful.  I am aware of some stiffness in the neck which … is aggravated by activity, particularly the act of looking upwards with my head titled backwards.”[1]

·”Making love can bring about pain in my left arm and neck and across my shoulders.”[2]

·The plaintiff described living on a large block.  He said that whilst he had intended to landscape the property himself and had commenced the construction of a treated pine pergola which he intended to complete himself, he now required assistance from friends and he had resigned himself to the fact that he would have to pay for landscaping.  He said he would have difficulty painting above eye level.  He said that activities such as vacuuming, dusting in high places and hanging out washing aggravated his neck pain, and that he could no longer play basketball.

Medical evidence relevant to the Plaintiff’s stabilised condition following the surgery of 27 August 2008

[1]Plaintiff’s Court Book (“PCB”) page 30

[2]PCB 30

7       Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on 5 May 2010, at which time he obtained the history from the plaintiff that he was experiencing:

“… the odd twinge of discomfort in his biceps and triceps muscles.  This comes and goes.  It does not seem to be particularly related to lifting, but does seem to be worse with truck driving. … He does not have a lot of neck pain, although his neck is stiff.  … The neck aches if he looks up for extended periods. … He is taking no medication and is receiving no physical therapy.[3]

[3]Defendant’s Court Book (“DCB”) pages 31-32

8       At that time, following an examination of the plaintiff, Mr Shannon expressed the opinion that the plaintiff’s symptoms were entirely consistent and that he would be well-advised to avoid any work involving heavy lifting, particularly overhead lifting.

9       The plaintiff’s treating general practitioner, Dr A Hipolito, in a report dated 22 April 2009, commented that, at the time of his last examination of the plaintiff on 14 April 2009, the plaintiff reported that whilst he had suffered from neck spasm and paraesthesia of the left arm in November 2008, he was, as at April 2009, symptom-free, having returned to full duties with the defendant.

10      In report dated 24 April 2009, the plaintiff’s treating neurosurgeon, Mr Craig Timms, commented that the plaintiff had recovered quite well from his 2-level cervical decompression infusion, opining specifically:

“The extent of the recovery is hoped to be almost full, however, I have not reviewed him recently nor had he fully recovered at the time of my last review. … At my last review in September 2008 following the surgery, he was progressing very well and had a marked reduction in his pain and symptoms.  At that stage, I had cleared him to commence a return-to-work programme in the following few weeks.  It is hoped that his symptoms continue to recover, yet the full extent of the recovery at this stage is unknown.” 

11      In a report to Dr Hipolito dated 3 February 2010, Mr Craig Timms opined that he had examined the plaintiff on that day, that the plaintiff had experienced some pain in his left shoulder and biceps before Christmas which had settled, commenting:

“It sounds likely that he has either injured his shoulder or pinched one of the nerves in the neck, which has settled down somewhat.  As long as he remains reasonably sensible at work, I do not think he should have any long-term problems and if they were [sic] worsen I suspect it would take a decade for them to develop.”[4]

[4]PCB 66

Findings as to the Plaintiff’s stabilised condition following the August 2008 surgery

12      The medical evidence to which have I referred satisfies me that the plaintiff made an exceptionally good recovery from his surgery, that he regained the capacity to work full time in his vocation as a glazier, albeit with some restrictions, and that at the time at which he occasioned the injury the subject of this application, the residual impact of his pre-existing injury was certainly no greater that that described by him in his affidavit of 22 February 2010

The evidence as to the consequences caused by the subject aggravation

13      In his affidavit of September 2013, the plaintiff said that:

·By the end of 2008 he had returned to his trade as a glazier; however, he did not lift items weighing more than 25 kilograms without assistance.

·Following his surgery undertaken on 6 July 2012, he had returned to full-time work with the defendant.  His duties, however, had not involved glazing, but involved him working as an assistant to the operator of the overhead crane.

·Following his second operation, he had been unable to resume his vocation as a glazer.  He said that he was precluded from returning to his primary trade, namely carpentry, in respect of which he had served his apprenticeship in 1975.  He said that he had been made redundant by the defendant in February 2013, having been employed by the defendant for a period of twenty-two-and-a-half years before that and having worked as a glazier for some twenty seven years in total.

·He had undertaken handyman work since approximately May 2013.  He said that in September 2013, he had commenced what he hoped to be full-time work as a caulker, with a company specialising in tiling and water-proofing, but he was not able to work fast enough and, for that reason, failed his trial work period.

·Whilst he had a wealth of experience in handyman work, he had to decline some jobs because they were now beyond his capacity.

14      As at September 2013, the plaintiff described his current condition as follows:

·        The pain in his left arm had not changed markedly from that described in his previous affidavit, but said that his pain and stiffness in his neck was worse, particularly if he looked upwards with his head tilted backwards.

·        He suffered from headaches, which had not been a feature of his condition following his first operation.  He described those headaches as involving nausea and persisting for between 15 and 20 minutes.  He said that these symptoms were particularly exacerbated by hanging out the washing

·        He had difficulty shaving, as when he tilted his neck back, that movement provoked neck pain and headaches.  

·        He had gained weight.

·        He employed pain control in the form of eight to ten Panadol Osteo tablets each week.

·        He said that were he to be offered a job as a forklift driver he:

“… would give it a go.  However, I would not be able to manage a forklift job that required me to look upwards frequently, or for extended periods.  It also worries me that I find sitting for extended periods causes more trouble for my neck, than walking around.”[5] 

[5]PCB 23

15      In a further affidavit of 9 July 2015, the plaintiff said he continued to work as a caulker and handyman, but was careful in the jobs he took and would not for example take on work such as fencing, decking or pergola building or painting, and that he was seeking more work, commenting:

“On average, I would have a job to keep me occupied for two to three days of each week.  I would like more jobs to come in, but even if the work was there, I think five days of it per week would be too much for my neck”.[6]    

[6]PCB 38

16      As at July 2015:

·        The plaintiff described suffering from headaches, which were most likely to strike when he looked up.  He said that he had gained fairly significant weight by reason of his inability to be physically active and that he continued to do most of the housework.

·        The plaintiff said that:

(i)    He was undergoing treatment for relief of his neck pain from a Chinese acupuncturist and masseur, who he consulted once each month, and he employed heat patches to manage his symptoms;

(ii)   He continued to rely on Panadol Osteo, commenting “the more I work the more tablets I use”.  He said, however, that the use of heat patches had made him less reliant on medication;

(iii)   His symptoms had affected the quality of his sleep, commenting that, following the second injury, his pattern of sleep had been consistently poor.  In particular, the plaintiff said:

“Often, I will be in bed for one to one and a half hours before I am asleep.  After an hour or so of sleep, I will be awake again, so restless nights are now frequent.”[7] 

[7]PCB 44

Medical evidence relevant to the Plaintiff’s stabilised condition following the July 2012 surgery

17      On 16 August 2012, Mr Timms, in reporting to the plaintiff’s general practitioner, commented:

“In the future any repetitive heavy lifting is likely to aggravate his neck, but if he can be given a lighter role, that is less physical, I think that would benefit him in the long term.”

18      In a report dated 26 February 2013 to the defendant, Mr Timms commented that he suggested there was a significant risk that should the plaintiff return to work as a glazier, he would injure his neck again and that he should not return to his full pre-injury duties as, if he were to do so, he would injure his cervical spine.

19      In a report dated 7 January 2014, Mr David Brownbill, a consulting neurosurgeon, opined:

·        That the plaintiff should, in the future, avoid activities involving heavy lifting, forced cervical spine mobility or holding his neck in a fixed position.

·        That the plaintiff would not be able to return in the future to his glazing activities or to manual work activities in general.

20      In a report dated 1 July 2014, Professor Anthony Buzzard accepted:

·        That the plaintiff’s complaints of headaches in the occipital region were associated with his neck condition.

·        That the plaintiff suffered from pain and restriction in the range of movement of his neck by reason of the presence of neck pathology.

·        That the plaintiff was required to employ appropriate oral analgesia and like treatment in the management of his condition.

21      Whilst Professor Buzzard made comments as to the causal relationship between the plaintiff’s employment and his current symptoms, and opined that the plaintiff was “capable of pre-injury employment, in that he was carrying out what was tantamount to pre-injury employment at the time of his cessation of working in February 2013”, I do not accept these latter comments, as I find them to be unintelligible.

The viva voce evidence

22      In the course of his viva voce evidence, the plaintiff largely maintained the position set out in his affidavit evidence.  The viva voce evidence of the plaintiff is a matter of record and, with the exception of the surveillance evidence about which I will comment in detail, there is no need to repeat the content of that evidence and I will not do so unless I feel it is necessary to do so to disclose my path of reasoning.

The Plaintiff’s credit

23      In the course of the application, surveillance footage was shown of the plaintiff undertaking what might be described as renovation-type work at a property in Pascoe Vale. 

24      The activities undertaken by the plaintiff as depicted in surveillance footage included:

·        Unloading a number of blueboard sheets from the roof of his vehicle, each of which the plaintiff admitted weighed in the vicinity of 20 kilograms, and manhandling them in an awkward manner, given their dimensions, into the house.  It further involved him using a hammer gun and jimmy bar above head height and a nail gun above head height at various times.

·        The plaintiff’s head being positioned such that he was clearly looking up for periods of time which, whilst it could not be said involved lengthy periods, were nonetheless significant when the plaintiff’s affidavit evidence as to his inability to manage hanging washing on a clothesline and the effect of that activity in sponsoring headaches is taken into account 

25      Whilst the work undertaken by the plaintiff as depicted in the video could not be appropriately described, in my opinion, as involving heavy work, I am satisfied that it is appropriate to describe the lifting undertaken by the plaintiff of the blueboard sheets as being an awkward lift and moderately heavy lift, which appeared to be managed by the plaintiff without the need to rest and recuperate during the process, and which involved the plaintiff handling some eight or nine sheets.

26      Given the fact that the surveillance evidence was not made available to any medical practitioner who has expressed an opinion in the case, there is no evidence as to whether or not the nature of the activity undertaken by the plaintiff as depicted in the evidence was such that it was inconsistent with the level of activity recommended for the plaintiff, given the two surgical procedures which he has undergone.

27      My impression of that activity, insofar as it involved the handling of the blueboard sheets however, was that it would be clearly described as awkward, moderately heavy work of the type which the plaintiff would be extremely unlikely to be able to tolerate on a regular or full-time basis, given:

(i)    the extensive surgery which has been undertaken upon the plaintiff’s cervical spine;

(ii)   the opinion expressed by Mr Timms in his report dated 26 February 2013 to the effect that following his recovery from his July 2012 surgery, the plaintiff:

§    should avoid repetitive bending and lifting and overhead work;

§    should restrict the weights he was required to handle to 10 kilograms; and

§    did not have the capacity to return to work as a glazier;

(iii)   The opinion of Mr Brownbill, a consulting neurosurgeon, who, in a report dated 7 January 2014, opined that the plaintiff should avoid activities involving heavy lifting, forced cervical spine mobility or holding his neck in a fixed position, that he was no longer able to undertake glazing work, or manual work in general.

(iv)   The current Certificate of Capacity provided by the plaintiff’s general practitioner that he should restrict his lifting to objects weighing no more than 10 kilograms.

28      I found the surveillance evidence to be inconsistent with the plaintiff’s affidavit evidence, not only as to his avoidance of strenuous activity but as to the impression given by the plaintiff in his affidavit evidence as to the immediacy between the onset of headaches and any activity which required him to look upwards, the end result of that relationship being that he was precluded from undertaking work such as hanging out washing.

29      That having been said, I am not satisfied that the surveillance evidence demonstrates the plaintiff to be a generally unreliable witness, other than to varying degrees upon the issues to which I have referred to immediately above.

30      I make this finding for the following reasons:

(i)Firstly, I am satisfied that the description of the plaintiff by Mr Jonathan Hooper, orthopaedic surgeon, who examined him in August 2008 on behalf of the defendant, and commented:

“He is a tough man, he has continued working with significant disability and he is anxious to continue working.  He has been with the company for 20 years and he has every intention of continuing working through until retirement with you”,[8]

[8]DCB 25

is apt in this instance and accords with my impression of the plaintiff as being a stoic person who has a high tolerance for pain and is inclined to push himself in order to achieve what is necessary.  

In making that statement, I do so not being solely reliant on of the opinion expressed by Mr Hooper but taking into account the following facts: 

§    Having undergone his 2-level cervical fusion in August 2008, the plaintiff had returned to modified duties within a period of some five weeks and had taken up general glazing duties within four months, although he worked with assistance;

§    That following the 2-level cervical foraminotomy, which the plaintiff underwent in July 2012, he had returned to employment with the defendant within approximately nine weeks and continued in that employment on a full-time basis, albeit performing restricted duties, until he was retrenched.

This behaviour by the plaintiff not only attests to the plaintiff’s stoicism but also to his determination to reduce the impact which the presence of his condition imposed upon his lifestyle.  This later point in turn speaks very positively to the plaintiff’s credit.

(ii) Secondly, that whilst the activities undertaken by the plaintiff in the course of the surveillance evidence demonstrated what appeared to be a period of continuous activity undertaken by the plaintiff, the activity was not continuous and the surveillance which generated approximately 77 minutes of DVD footage had involved a period of surveillance of the activities undertaken by the plaintiff for some eight hours to ten hours on that occasion.

Further:

§The surveillance the subject of the tendered video evidence was generated in the course of a total history of surveillance of 122.5 hours which generated 162 minutes of video evidence.  Given that the plaintiff undertakes regular handyman work which would provide potentially fertile ground for surveillance, this in turn suggests that the activities undertaken by the plaintiff were not representative of his normal level of activity;

§The plaintiff did not seek to attempt to explain his tolerance for the activity depicted on 13 October 2014 by giving evidence that he had taken medication to deal with the symptoms generated by the activity, or that the performance of the activity had subsequently disabled him.  Had he done so, this in turn could not have been the subject of real challenge.  Rather the plaintiff merely said that he could not speak upon that topic because he could not recall whether the activity involved had required him to take additional medication.  This again speaks to the plaintiff’s credit as being a person whose primary motivation is not to deceive or embellish.

(iii)Thirdly, that the plaintiff has discovered job invoices which had been made available to the defendant prior to this hearing and which documented the type of work undertaken by the plaintiff as a handyman.  Those invoices, at various dates, described the plaintiff as undertaking work involving:

§    the installation of timber steps;

§    the replacing of glass and fitting a gate;

§    the repairing of a wall using cement-sheeting;

§    the renovating of an en-suite; and

a plethora of other physical work which, whilst they attracted minimal cross-examination, I am satisfied would most probably have involved activities of the type which the plaintiff undertook in the surveillance evidence.  For that reason I am satisfied that it could not be said that the plaintiff had employed a deliberate and consistent attempt to hide his capacity for activity, or to misrepresent it.

(iv)    Fourthly:

§    The plaintiff’s long history of continued employment;

§    The fact that the plaintiff, both following his first and second injury and the surgery associated with those injuries, has always demonstrated a pattern of behaviour in which he has sought to minimise the economic consequences of his injury by returning to work with the defendant as early as possible and continuing in his employment with the defendant until his retrenchment;

speaks significantly to the plaintiff’s credit as being a person who does not seek to exaggerate his level of incapacity for personal gain, but rather, the opposite.

Findings as to the pain and suffering consequences of the 2012 injury

31      Notwithstanding the very significant surgery which the plaintiff underwent in August 2008, the medical evidence to which I have referred is consistent with the plaintiff having made a very good recovery from that surgery with minimal ongoing consequences.  That medical evidence is, in turn, consistent with the plaintiff’s return to full-time employment in which he undertook, with assistance, the work of a glazier, and is further consistent with the plaintiff’s affidavit evidence in which he set out his ongoing symptoms as at 2010.

32      I am satisfied that, in undertaking the task required of me in this instance, namely to fix the plaintiff’s level of capacity for activity before the injury the subject of this application in order to determine the discrete effects of that injury upon his life and lifestyle, that the plaintiff’s affidavit evidence as at 2010  represents;

·        the plaintiff’s stabilised position following his 2008 surgery; and

·        the starting point upon which the comparison should be made between the plaintiff’s current level of capacity and symptoms, and the level of capacity and symptoms with which the plaintiff had been left following his recovery from his 2008 surgery.

33      I am satisfied, both upon the medical evidence and that part of the evidence given by the plaintiff, which I accept, that the effect of the incident and injury the subject of this application has been to limit the plaintiff’s capacity for activity which he can undertake without unreasonably exposing himself to further injury, such that the plaintiff is now precluded from pursuing his vocation as a glazier:

·        which he had pursued for some twenty seven years; and

·        in respect of which the plaintiff had evidenced an intention to continue until his retirement.

34      I am satisfied that this loss to the plaintiff was, and remains, a very significant loss to him in that:

·        he has lost his ability to pursue the vocation which had been a feature of his life for some twenty seven years; and

·        his lifestyle has been completely restructured to the detriment, in that he now finds himself in the insecure position of having to derive his income from irregular self-employment.

35      I am further satisfied that, in the context of the plaintiff’s presentation as a tough, stoic man, the subject injury has been responsible for:

·        An increase in the symptoms which were generated from his stabilised recovery from his 2008 surgery, which increase is, in itself, sufficient to preclude the plaintiff from pursuing his vocation as a glazier, and also impact upon his ability to sleep and the need to employ medication and heat packs, as described by him in his affidavits of 26 September 2013 and 9 July 2015.

·An alteration in the plaintiff’s a capacity for activity from one which involved him handling items weighing 25 kilograms in the course of his work with the defendant immediately prior to the subject injury, to one which now precludes him from lifting in excess of 10 kilograms without exposing himself to further injury.

36      For these reasons, I am satisfied that the pain and suffering consequences of the injury the subject of this incident can appropriately described as being more than significant and marked and as being at least very considerable in accordance with the definition of that term employed by the Accident Compensation Act 1985.

The Plaintiff’s claim for pecuniary loss damages

37      I am not satisfied that the plaintiff has made good his onus of establishing that he has lost the requisite degree of earning capacity which would entitle him to maintain a preceding claim to claim economic loss damages by reason of the incident the subject of this application.  I make this finding for the following reasons:

(i)Firstly, the plaintiff’s residual capacity for employment was demonstrated by the plaintiff’s ability to return to work following his 2007 surgery to full-time light employment with the defendant, in the course of which he generated income of a level which the evidence remains uncertain but in respect of which is the plaintiff’s obligation to establish did not meet the statutory threshold.  Whilst the plaintiff’s duties in that employment were clearly restricted in nature, I am not satisfied that they could be described as being other than real duties of the type which might be available to the plaintiff in the marketplace.  It is clear that those duties fell within the plaintiff’s capacity, as his reasons for ceasing that work did not involve an incapacity to carry out the work, but rather the fact that he was retrenched;

(ii)Secondly, the only medical restriction placed upon the plaintiff’s capacity for employment at the present time involves the certification issued by Dr Hipolito that the plaintiff should be restricted to handling weights in excess of 10 kilograms.  Although I am satisfied that this is consistent with the general tenure of the medical evidence to which I have referred, that the plaintiff is unfit for heavy physical work, this restriction is such that a large range of potential employment opportunities would clearly fall within the range of activity which the plaintiff has been certified fit to undertake;

(iii)Thirdly, it is the plaintiff’s evidence that he has made application for full-time employment with Bunnings.  There is no evidence that the plaintiff made that application for employment possessing the belief that he did not have the capacity to carry out that employment on a full-time basis.  Nor is there any evidence that the plaintiff is not fit for suitable full-time employment.  No evidence was adduced as to the income which employment with Bunnings would have generated for the plaintiff.  It is not, however, for me to speculate as to whether or not full-time employment of that type, or some other type which falls within the plaintiff’s current capacity for activity as certified for by Dr Hipolito, would not  generate a level of income which exceeds the relevant statutory threshold in this instance;

(iv)Fourthly, I accept the position put by the defendant that the plaintiff’s invoices tend to suggest that the plaintiff’s current hourly rate is in the vicinity of $30 per hour.  It is the plaintiff’s evidence that he is under-employed at the present time and is canvassing for additional employment.  Whilst the plaintiff expressed uncertainty as to whether he could cope with full-time employment as a handyman, that issue remains untested.  It is clear, however, that the plaintiff’s capacity for earnings as a handyman has potential which has not been explored and, in that sense, this also goes to the adequacy of the plaintiff’s proofs in this instance;

(v)Fifthly, it is the plaintiff’s evidence that he would undertake work as a forklift driver with a proviso that he would avoid such work if it involved a requirement for him to repeatedly look up as he manoeuvred the forklift.  There is no evidence as to whether or not this restriction, as described by the plaintiff, is one that would preclude him from employment as a forklift driver.  Neither is there any evidence as to the income the plaintiff might earn in that activity. This also tells against the plaintiff’s proofs in this instance

38      For all these reasons, while I am satisfied that the effect of the subject injury has been to preclude the plaintiff from working in his chosen vocation, it remains a matter of speculation as to whether or not the injury has been such as to occasion upon the plaintiff a loss of income which meets the statutory definition as prescribed by the Act.

39      For the reasons set out, I am satisfied that, whilst the plaintiff has established that he is entitled to leave to commence a proceeding claiming damages for the pain and suffering consequences of the injuries the subject of the injury and incapacity, the subject of this proceeding, I am not satisfied that the plaintiff is entitled to leave to commence a claim seeking damages with respect to the economic loss consequences of that incident and injury.

40      I will hear the parties as to the order to be made in this instance given my findings, and also as to costs.

- - -