Sullivan v Victorian WorkCover Authority
[2021] VCC 900
•7 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-04985
| ALINA ROSE SULLIVAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 June 2021 | |
DATE OF JUDGMENT: | 7 July 2021 | |
CASE MAY BE CITED AS: | Sullivan v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 900 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right upper limb – pain and suffering and pecuniary loss damages – pain and suffering conceded
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35;
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Ms S A Lean | Adviceline Injury Lawyers |
| For the Defendant | Mr S Scully | Minter Ellison |
HER HONOUR:
1On 7 February 2017, when she was 51 years old, Ms Sullivan suffered an injury to her right shoulder and right elbow whilst caring for a resident during the course of her employment as a personal care attendant at a nursing home in Violet Town.
2In order for Ms Sullivan to be entitled to claim damages for the injuries she suffered in this incident, she must satisfy me that that the impairment to her right upper limb satisfies the definition of “serious injury” contained in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act").
3The defendant conceded that Ms Sullivan’s pain and suffering consequences satisfied this narrative test, but it submitted that I could not be satisfied that Ms Sullivan satisfied the threshold in respect of her pecuniary loss. The defendant submitted that since suffering her work injury, Ms Sullivan had demonstrated a capacity to work at a biscuit factory and at a general store. The defendant submitted that I should be satisfied that such work constituted suitable employment and that I should be satisfied that Ms Sullivan is capable of working sufficient hours in such employment, that she does not satisfy the requisite loss of earnings. Further, the defendant submitted that I should find Ms Sullivan’s injury is not permanent, as a medico-legal doctor suggested that her condition may improve with pain management and she has not explored such treatment.
4Only Ms Sullivan was called to give evidence. Also in evidence were medical reports, vocational reports and other material. I have read these tendered documents, together with the transcript of the proceeding. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence which I consider necessary to give context to, and explain, the conclusions reached in this judgment.
5For the reasons that follow, I am satisfied that Ms Sullivan has a very limited work capacity such that she satisfies me that she suffers a loss of at least 40 per cent of her earning capacity and that such loss is permanent. Therefore, I grant Ms Sullivan leave to commence common law proceedings in respect of the injuries she suffered in this work incident.
Ms Sullivan’s life before the workplace injury
6Ms Sullivan was born in 1965 in Melbourne. She attended school until almost the end of Year 10, leaving at the age of 15. Ms Sullivan said that she left school as she “hated [it]” and she considered that she had terrible marks and could not do it. Ms Sullivan said that she still has difficulties with spelling and reading, and she has to sound words out.
7After leaving school, Ms Sullivan said that she worked in numerous roles including as a kitchenhand, cleaner and a process worker.
8On 7 May 2014, Ms Sullivan commenced working at the Violet Town nursing home, on a permanent part-time basis. Ms Sullivan said she had her regular shifts, and would be given additional shifts, depending on the organisational needs of the nursing home. Ms Sullivan said that she would work full-time if offered the additional hours. However, in the financial year prior to her suffering this work injury, Ms Sullivan worked an average of 31.4 hours per week and earned a gross annual income of $51,509.76.
9Ms Sullivan had tendered her resignation with this employer on 3 February 2017, just a few days prior to the incident. She said that she had tendered her resignation as she had planned to move closer to family who lived near Warneet.
Ms Sullivan’s work injury and subsequent medical treatment
10On 7 February 2017, Ms Sullivan suffered injury when assisting a dementia resident who had urinated on himself. Ms Sullivan said that she planned to assist the resident to the bathroom and, as the resident stood, he slipped and pulled Ms Sullivan’s right arm.
11Ms Sullivan stated that immediately after the incident, she felt pain in her right shoulder and arm and was unable to complete her shift. Since that time, Ms Sullivan has received the following medical treatment:
· on 1 March 2017, Ms Sullivan received a right shoulder cortisone injection;
· on 16 August 2017, orthopaedic surgeon, Mr Trung Nguyen, performed a right shoulder arthroscopic subacromial decompression and acromioclavicular joint resection;
· on 17 December 2017, Ms Sullivan received an ultrasound-guided steroid injection to her right elbow;
· on 21 March 2018, Ms Sullivan underwent a right elbow debridement, also performed by Mr Nguyen.
12Ms Sullivan said that she has received a good outcome following the surgery to her right elbow, but the surgery to her right shoulder did not lead to making it either better or worse.
13On 31 January 2018, Ms Sullivan saw physiotherapist, Mr Michael Chia. She said that she attended him for a period of time, until the statutory insurer stopped paying for this treatment.
14In late 2020, Ms Sullivan underwent a further ultrasound of her right shoulder. At that time, her general practitioner, Dr Marr, suggested that she either return to see a surgeon or a physiotherapist. Ms Sullivan said she did not wish to undergo any further surgery or have any further injections and, therefore, she was referred back to Mr Chia. Ms Sullivan said she currently attends Mr Chia and he provides her with exercises as well as massage therapy.
15Ms Sullivan said she also continues to consult Dr Marr as needed. She said that she takes Voltaren and Panadol Osteo medication daily, Voltaren Gel multiple times a week, and Panadeine Forte when needed.
Ms Sullivan’s attempts at return to work
16Following her move to Warneet shortly after suffering her work injuries, Ms Sullivan obtained part-time work at the local general store and worked there on a casual basis from 28 April 2017 until December 2017. Ms Sullivan said that, during that time, she usually performed cash register duties and took telephone calls for fish and chip orders at busy times of the day. Ms Sullivan said that her shifts would range from one hour to three hours, and she worked approximately 12 hours per week.
17Ms Sullivan said that she ultimately ceased this employment because her then employer found it difficult to deal with WorkCover. Ms Sullivan said that if not for that, she would have been able to continue working in that role up to 12 hours per week. However, Ms Sullivan denied that she could work beyond that number of hours, as she believed that if she were to work additional hours, she would be required to do additional duties, which would be physically beyond her capacity.
18Ms Sullivan said that the business only needed her when it was busy with fish and chip orders and, thus, there was a limit on the hours that she performed there. Ms Sullivan said that the light nature of such duties enabled her to continue in such employment. She also said that any additional hours which she may have worked would have required her to work beyond the restrictions on her capacity. At the time that Ms Sullivan worked at the Warneet General Store she earned $25.10 per hour for ordinary hours and $27.11 per hour on Saturday penalty rates.
19From September 2019 to 25 December 2019, Ms Sullivan worked at a BUPA nursing home. Ms Sullivan said that she initially worked 16 hours a week and then later increased to 24 hours, and in one week worked 38 hours. However, Ms Sullivan said that she struggled with the increased hours and, therefore, she decreased her hours as she found it too hard to cope. Ms Sullivan said that she found pushing trolleys and lifting trays a difficult part of her responsibilities at BUPA.
20During this period, Ms Sullivan attended on Dr Marr on several occasions and complained that she was experiencing increased pain in her right shoulder, with the pain worse at night after her shifts, causing difficulty sleeping.
21Further, by 29 November 2019, Ms Sullivan reported to Dr Marr her right shoulder injury was causing issues with her work and she had modified her shifts to avoid heavy lifting and washing dishes, and she preferred to complete shorter shifts with lighter duties.
22Towards the end of her employment at BUPA, Ms Sullivan also worked for seven days in early December 2019 with an agency, Chefs on the Run Australia Pty Ltd. She said that in that seven-day period she worked 46.5 hours. Ms Sullivan said that she was required to work at the President’s Cup Golfing Tournament. Ms Sullivan said that she found the work was too physical for her, but she persisted, as it was something that she had agreed to do without knowing the extent of what it would involve.
23From 18 January 2020 to 8 February 2020, Ms Sullivan obtained agency work with I Need a Chef. At this time, Ms Sullivan worked 29.75 hours over four days. Ms Sullivan said she had agreed to do this work as she had hoped that it would be lighter than the work she had done with Chefs on the Run. However, she said it was too physical for her, and so again she stopped such work.
24On 1 April 2020 and 3 June 2020, Ms Sullivan performed work as a carer for a young man with autism. Ms Sullivan said that he was physically demanding towards her, and she stopped that work as it resulted in aggravation of her symptoms.
25From 3 February 2020 until 15 July 2020, Ms Sullivan worked at the Butterbing Biscuit Factory. Ms Sullivan said that she initially worked 20 hours a week and was responsible for sorting biscuits. She said that was relatively light work that she was able to cope reasonably well with. In such employment, Ms Sullivan said that she received $25.08 per hour.
26However, after the imposition of the first restrictions in response to COVID-19 impacted the business, she was stood down for a period of time. She said that when she returned to work in approximately June 2020, her employer had changed the system of work, such that she was no longer just sorting biscuits, but instead was required to do heavier tasks, including lifting pots, bags of flour and bags of sugar. At that time, Ms Sullivan worked a maximum 29 hours in a week. She said she found it very difficult and therefore decided to resign. Soon after her resignation, the business shut down for a second time following a second COVID-19 related lockdown.
27Ms Sullivan said she was able to cope with sorting biscuits on the line, as that was light work. However, she said she was not able to cope with the broader job responsibilities subsequently required of her at that business.
28Ms Sullivan said that she has not worked since July 2020.
Medical evidence
29In a report dated 26 March 2021, Dr Marr noted that Ms Sullivan’s symptoms in her right shoulder continued to flare-up with any significant amount of movement or weightbearing. Dr Marr was of the opinion that Ms Sullivan would benefit from physiotherapy and rest, and activity modification, noting that she had recently experienced a flare-up of pain following the use of her right arm for light household tasks. Dr Marr said that Ms Sullivan did not have the capacity to return to her pre-injury employment.
30Dr Marr was of the opinion that Ms Sullivan was not able to lift more than 5 kilograms with her right hand, and was not able to do overhead movements or push or pull any significant weight with her right arm. Dr Marr specifically stated that such restrictions would preclude Ms Sullivan working as a carer or in a kitchen at a nursing home. Dr Marr noted that when Ms Sullivan had worked in a kitchen in 2019, moving and washing dishes caused a significant flare-up of her symptoms.
31In a report dated 11 June 2021, Mr Chia noted that he provided Ms Sullivan with soft tissue therapy, electrotherapy and exercise therapy in respect of her right shoulder injury. He considered that although there had been some improvement since Ms Sullivan recommenced her physiotherapy treatment in February 2021, she was not significantly better, such that she still had a significant lack of range of movement and function of her right shoulder. Mr Chia considered that, given the lack of progress, it may be worth referring Ms Sullivan to an orthopaedic specialist for further advice. However, in her oral evidence, Ms Sullivan stated that she was not interested in attending a surgeon for advice regarding any further surgery or injections.
32In a further report dated 26 June 2021, Mr Chia stated that, in his opinion, Ms Sullivan did not have a capacity to return to her pre-injury employment, and that any form of employment would need to be restricted, such that Ms Sullivan did not lift her right shoulder above shoulder level and did not carry more than 2 kilograms.
33In March 2017, July 2017, November 2017, June 2018, September 2018 and February 2019, Ms Sullivan was examined by occupational physician, Dr Joseph Slesenger. In his final report dated 21 February 2019, Dr Slesenger stated that, in his opinion, Ms Sullivan had suffered right shoulder dysfunction following a right shoulder soft tissue injury, for which she had undergone surgery in the form of arthroscopic decompression at the AC joint.
34In addition, Ms Sullivan had suffered right elbow tendinopathy for which she had undergone operative intervention, which had since resolved. Dr Slesenger was of the opinion that Ms Sullivan could return to work performing modified duties, working pre-injury hours. He was of the opinion that Ms Sullivan could return to work with the following restrictions:
· no over shoulder reaching;
· no sustained forward reaching;
· no push, pull, carry or lift over 10 kilograms.
35Dr Slesenger considered that, as to whether working as a café worker was something for suitable for Ms Sullivan, he considered a job specific worksite assessment would be required to ensure there were not tasks which were outside her capacity limits.
36In March 2021, Ms Sullivan was examined by occupational and environmental physician, Dr David Fish. In his report dated 24 March 2021, Dr Fish detailed Ms Sullivan’s history, treatment provided, and her vocational history. Following an examination of Ms Sullivan, Dr Fish diagnosed her as suffering persistent dysfunction of the right shoulder despite surgical treatment. He also noted she had developed a soft tissue injury of the right elbow, consistent with lateral epicondylitis.
37Dr Fish was of the opinion that Ms Sullivan had no capacity to return to her pre-injury work as a personal care attendant. In respect of suitable employment, Dr Fish noted that Ms Sullivan had demonstrated a capacity to work as a café worker and kitchenhand on a limited basis up to 10 hours per week.
38In June 2021, Ms Sullivan was examined by orthopaedic surgeon, Mr Christopher Pullen. In a report dated 14 June 2021, Mr Pullen detailed Ms Sullivan’s history, and the treatment she had received for it. Mr Pullen noted that Ms Sullivan’s main complaint was persistent right shoulder pain and stiffness and weakness, which had developed following the incident at work on 7 February 2017. Mr Pullen noted that Ms Sullivan described constant right shoulder pain that was worsened by activity, and that her shoulder pain interrupted her sleep, was exacerbated by lifting heavy objects, and restricted her ability to participate in social and recreational activities.
39Mr Pullen diagnosed Ms Sullivan as suffering from right shoulder impingement syndrome, subacromial bursal scarring, supraspinatus tendinopathy and acromioclavicular joint arthrosis; post-operative right shoulder adhesive capsulitis, as well as right elbow tendinopathy, although he noted that she now only complained of occasional right elbow pain.
40Mr Pullen stated that he considered Ms Sullivan’s prognosis poor, as despite operative and non-operative treatments, she suffered persistent shoulder symptoms. Mr Pullen stated that, in his opinion, Ms Sullivan will have some persistent difficulties with shoulder pain, stiffness and weakness for the foreseeable future. Mr Pullen stated that Ms Sullivan may benefit from hydrodilatation and he also considered she would benefit from consultation with a pain management specialist.
41Mr Pullen was of the opinion that Ms Sullivan will never be able to return to her pre-injury duties as a personal care attendant. He then noted Ms Sullivan’s attempts to return to various types of employment after suffering her right shoulder injury and that she was able to perform light duties and work reduced hours only. Mr Pullen added that, as a consequence of her right upper limb injury, Ms Sullivan may be able to perform suitable employment that involves retail sales, administrative duties or a supervisory role, but she would only be able to undertake such suitable employment on a part-time basis. Mr Pullen also stated that he considered that Ms Sullivan’s injury restricted her ability to perform pushing, pulling and lifting, and that repetitive and/or prolonged use of her right hand and right arm should be limited. Mr Pullen also stated that Ms Sullivan is unable to undertaken overhead activities. Mr Pullen stated these restrictions are likely to last for the foreseeable future.
42In closing submissions, the defendant submitted that Ms Sullivan’s impairment was not permanent, because Mr Pullen had stated that she would benefit from consultation with a pain management specialist. However, I note that despite such optimism, Mr Pullen was still of the opinion that Ms Sullivan’s injury restricted her to only certain jobs, and that she would only be able to undertake suitable employment on a part-time basis, with such restrictions likely to last for the foreseeable future. I also note that Ms Sullivan was not informed of Mr Pullen’s opinion in regard to this and her general practitioner has not referred her for any pain management.
43The defendant tendered and relied upon a vocational assessment report completed by Ms Jodi Puncher from AMS Consulting Group in November 2018. In this report, Ms Puncher stated that she considered there were numerous suitable employment options for Ms Sullivan, but the only one relied upon by the defendant in closing submissions was that of café worker. In her report, Ms Puncher detailed the typical physical and mental demands associated with such work, which included “lifting, pulling or carrying of medium demand level which may require frequent movement of large pots, food trays and certain food items”.
44In addition, it was noted that the job may involve repetitive movements likely to involve some tasks such as cutting and slicing meat, serving or working the register and EFTPOS machines. When this aspect of Ms Puncher’s report was put to Ms Sullivan in re-examination, she stated that she could not do such tasks. I consider her evidence on this is consistent with her previous evidence that she found the work she performed at the BUPA nursing home too difficult for her to manage because of the need to lift food trays, and this was corroborated in her contemporaneous complaints to Dr Marr. I also accept Ms Sullivan’s concern that if she were to work increased hours in a café, the duties may also involve setting up for customers, including moving tables and chairs.
Ms Sullivan’s credibility and reliability
45Ms Sullivan was an exceptionally impressive witness. She gave evidence in a frank, simple and straightforward manner. I considered Ms Sullivan a stoic woman who has attempted a multitude of jobs since suffering her right shoulder injury. There was no evidence that she was exaggerating or feigning her ongoing symptoms. I accept her evidence in its entirety and without reservation.
Ms Sullivan’s claim for loss of earning capacity
46To succeed in her claim for loss of earning capacity, pursuant to ss325(e)(i) of the Act, Ms Sullivan must establish that she has a loss of earning capacity at the date of the hearing of 40 per cent or more. Further, she must establish, pursuant to ss325(e)(ii) of the Act, that she will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
47In determining Ms Sullivan’s claim for loss of earning capacity, I must compare what she is currently earning, or capable of earning in suitable employment, with her without injury earning capacity. To determine her without injury earning capacity, I must decide which of the following scenarios most fairly reflects Ms Sullivan’s earning capacity, had she not suffered her right shoulder injury:
“(a)the gross income that Ms Sullivan earned (or was capable of earning) from personal exertion in the three years before the injury;
(b)the gross income that Ms Sullivan would have earned (or would have been capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.”[1]
[1] Section 325(2)(f) of the Act
48The defendant submitted that the sum which most fairly represents Ms Sullivan’s without injury earning capacity, was the sum she earned in the year prior to her suffering her injury, that is $51,509.76 per annum, or $990.57 gross per week. If I accept that, then in order for Ms Sullivan to succeed in her claim, she must satisfy me that she is incapable of earning more than 60 per cent of that sum in suitable employment, that is, no more than $594.34 per week.
49Ms Sullivan submitted that her without injury earning figure should be based upon her working full-time at the Violet Town nursing home. Based upon the figure of $51,509.76 being paid to her for an average of 31.4 hours per week, that equated to an average hourly rate of $31.52. When that hourly rate is applied to a 38-hour week, then that weekly figure is $1,197.76. Ms Sullivan submitted that figure most fairly reflects her without injury earning capacity, and 60 per cent of that weekly figure is $718.65 per week.
50I prefer Ms Sullivan’s figure as the one that most fairly reflects her without injury earning capacity, as I am satisfied that she had the capacity and desire to work full-time hours, and did so on occasions it was offered to her. Having so accepted that gross weekly figure, to succeed in her claim Ms Sullivan must satisfy me that she is incapable of earning more than $718.65 per week, and that such a restriction on her earning capacity will be permanent
51Notwithstanding that she has not worked since the middle of last year, since suffering the work injury, Ms Sullivan has demonstrated a capacity to work in suitable employment. Her general practitioner and physiotherapist, together with the medico-legal doctors, all agree that she can perform some work, but is subject to restrictions. The issue to be determined by me is the extent of her capacity for suitable employment and whether she suffers a permanent loss to the requisite level.
52In closing submissions, Mr Scully appropriately conceded that the defendant could not rely upon the numerous jobs that Ms Puncher had recommended as suitable employment. It was noted that for several of the jobs identified by Ms Puncher, there was a minimum education standard which was beyond Ms Sullivan’s level of education and capacity. Instead, the defendant submitted there were two jobs which constituted suitable employment for Ms Sullivan, which were along the lines of what she had performed after suffering her work injuries – that of working in a café or general store and that of working in a factory, doing light work such as sorting biscuits. The defendant submitted Ms Sullivan could perform such suitable employment at her pre-injury average hours and, as such, would not suffer the requisite pecuniary loss.
53The defendant submitted that I should accept Dr Slesenger’s opinion that Ms Sullivan is capable of working her pre-injury hours, which on average was 31.4 hours per week. If I were to accept that, then, based upon the hourly rate of a café worker identified by Ms Puncher being $19.29 per hour, that equates to $605.71 per week.
54However, I do not accept this is realistic. I note that even Dr Slesenger said it would involve a worksite assessment to ensure the job was consistent with Ms Sullivan’s restrictions. I accept that Ms Sullivan struggled with physical tasks when working at the BUPA nursing home, and that those duties were, in part, similar to those required of a café worker as described by Ms Puncher. I consider the opinion of Dr Fish more consistent with Ms Sullivan’s capacity for suitable employment, that it be restricted to 10 hours per week. That is consistent with the level Ms Sullivan said she was able to cope with when working at the Wollert general store.
55The defendant also contended that Ms Sullivan could work her pre-injury hours in a general store. However, once again, I do not consider it realistic that Ms Sullivan could work such hours on a consistent and reliable basis. On the brief occasions she attempted to work in excess of 31 hours, for one week in her time at the BUPA nursing home, and whilst at the catering companies, it was too much for her and, after trying, she immediately reduced the hours she worked.
56Finally, the defendant contended that Ms Sullivan had demonstrated a capacity for suitable employment, working in the biscuit factory. Based on her hourly rate there of $25.08 per hour, if she worked 31.4 hours per week, then she would earn $787.51. Based on the figure which I consider most fairly reflects her without injury earning capacity, it would only be if Ms Sullivan could perform this employment, working that number of hours, that she would earn in excess of 60 per cent of her without injury earnings.
57There are several reasons why I do not consider this suitable employment for Ms Sullivan:
(i) The sorting role at the factory was light work which Ms Sullivan said she was able to cope with. However, she said the structure of the factory has changed such that that role is no longer available and a combination of duties is now required, and such duties are beyond her.
(ii) Ms Puncher did not identify factory work as suitable for Ms Sullivan. As such, there is no evidence before me as to what process work in a factory may involve, and the weight restrictions would apply. In the absence of such vocational evidence, I also note that none of the doctors have commented on the suitability of such work.
58In view of the above, I am not satisfied that factory work is suitable employment for Ms Sullivan. Further, even if such work was suitable, I accept the opinions of Mr Pullen and Dr Fish that Ms Sullivan would only have the capacity for part-time work. As such, once again, I am satisfied that her earning capacity from factory work would be well below the threshold of $718.65 (as well as the defendant’s threshold figure of $594.34).
59As was noted by the Court of Appeal in Yirga-Denbu v Victorian WorkCover Authority, the test under ss325(2)(g) of the Act, “is a gateway provision, which does not require an assessment of loss of earning capacity as in a claim for damages”.[2] In considering all of the evidence in this case, I have no hesitation in determining that Ms Sullivan presently suffers the requisite loss of earning capacity.
[2] Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraph [78]
60Further, I reject the defendant’s submission that Ms Sullivan’s incapacity is not permanent due to the suggestion by Mr Pullen that she may benefit from pain management treatment. As stated above, this has not been suggested to Ms Sullivan by her general practitioner. Further, even with this recommendation, Mr Pullen still offered an opinion on the basis that Ms Sullivan’s impairment would persist and she was indefinitely restricted in relation to the duties she could perform due to her shoulder injury, and she was limited to part-time hours.
61Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for Ms Sullivan meet the “very considerable” test.[3] Given my acceptance that her right shoulder injury prevents her from returning to anything more than minimal hours in suitable employment, the pecuniary disadvantage to her is so great that I consider her loss of earning capacity can be described as “very considerable”.
[3] Section 325(2)(c) of the Act
62I will now make consequent orders.
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