Sultani v Victorian WorkCover Authority
[2018] VCC 2157
•20 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-01702
| NASER SULTANI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 December 2018 | |
DATE OF JUDGMENT: | 20 December 2018 | |
CASE MAY BE CITED AS: | Sultani v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2157 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Definition of “worker” – Whether worker or subcontractor – serious injury application – injury to lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited: Elazac Pty Ltd v Shirreff [2011] VSCA 405
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Ms C Willshire | Zaparas Lawyers |
| For the Defendant | Mr T Storey | Wisewould Mahony |
HER HONOUR:
1 Mr Sultani applies under s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the Act’) for leave to issue proceedings for the recovery of damages for pain and suffering and economic loss flowing from an injury to the lumbar spine sustained on 3 February 2015 while working for the defendant as a tiler at a site at the Docklands. On that day, the plaintiff had finished mixing some tiling glue and went to stand up with two buckets in each hand when he felt a sharp, needle-like pain in his lower back followed by a burning sensation in the same area. He estimated the weight of a full bucket was approximately 25kgs. He suffered ongoing pain and CT scan of the lumbar spine three weeks after his injury revealed disc bulges at L4/5 and L5/S1 with possible compression of the transversing right L5 nerve root. A subsequent MRI scan confirmed these findings. The plaintiff has been treated conservatively but continues to take heavy daily analgesia and is limited in his daily physical activities, social and recreational functioning and has not been able to return to work. He has little English, only 7 years of education in Afghanistan, and a work history in labouring jobs obtained through his contacts in the Afghani community. He says he is permanently incapacitated for all employment and that he has suffered a serious injury in terms of both pain and suffering and loss of earning capacity.[1]
[1]At the hearing before me, the plaintiff abandoned the claim under sub-paragraph (c) of the definition of “serious injury”.
2 The defendant says that the Court should not be satisfied that the plaintiff is a worker (either under the Act or at common law). Rather, the defendant says, the employment arrangements between the plaintiff and the defendant demonstrate that the plaintiff was engaged as a sub-contractor. Even if the Court finds the plaintiff to be a worker, the defendant says that in spite of suffering a permanent impairment of the function of the lumbar spine the pain and suffering consequences he suffers do not meet the narrative test for serious injury. In addition, the defendant contends that the plaintiff has a residual work capacity to work at least five and a half hours a day, four days a week and therefore, in terms of loss of earning capacity, does not satisfy the narrative test for serious injury.[2]
[2]Transcript, 95
3 The plaintiff gave evidence and was cross-examined. No other witnesses were called at the hearing. I have considered all the material relied upon by the parties.
Is the plaintiff a ‘worker’ or ‘subcontractor’ at common law?
4 I turn first to the relevant factual background. The plaintiff is 53 years old and was born and educated for 7 years in Afghanistan. He ran a shop in Pakistan for some years and came to Australia in 2012. His wife and five children are in Afghanistan and rely on him for money. In Australia, he performed labouring and then tiling services for a number of different tiling companies. He learned how to tile in around mid-2013. He said he had to get an ABN number because he would not get work otherwise.[3] The work was sporadic. Each job could vary from one to several weeks. Between jobs he was out of work and would ask other Afghans involved in tiling for work. He agreed that he was free to go wherever he found work. He said that his Afghan contacts would take him to work on particular jobs. One of these men was Alex Yavari, who would take the plaintiff along to jobs being performed for different tiling companies. It was clear from his evidence that the plaintiff was not always aware of the company he and Mr Yavari were working for, but that when invoicing the company he would follow Mr Yavari’s instructions as to which company the invoices were to be addressed.
[3]Transcript, 35
5 Prior to doing any work for the defendant, according to his invoices, bank statements and superannuation statements, the plaintiff worked for a number of tiling companies: between April and December 2013, for DTS tiling; between July 2013 and July 2014, with Commlex tiling (through Alex Yavari); between August 2013 and June 2014, with Casey tiling; and between August 2013 and January 2015 with Wetspot Consolidated.
6 Much of the cross-examination of the plaintiff focused on the way he undertook tiling jobs prior to working on the Docklands project. The alleged pattern of the plaintiff’s work practices prior to the relevant period were relied upon to support the submission that during the relevant period the plaintiff was acting as a sub-contractor, rather than as an employee. I consider it appropriate to concentrate on the relevant period, but note that there is an alternative construction of events, consistent with the plaintiff’s own evidence, which was that he took a job at a time, worked for the life of that job, then looked for other work through his Afghan speaking contacts. Such conduct is not inconsistent, in my view, with his being an employee on each of his jobs prior to the relevant period, but it is not necessary for me to decide this.
7 The plaintiff was engaged in early 2014 to do some work for the defendant. The director of the defendant, Muhammad Zia Sahill, deposed in his affidavit to the fact that he considered the arrangement with the plaintiff to be a sub-contractual arrangement, which was the same for all other tilers who worked with the defendant. As at January 2014, Mr Sahill stated that the arrangement was that the plaintiff charged $200 per day (which was increased to $240 per day).[4] The plaintiff said the amount paid to him per day was $220 per day and then $240 per day, but nothing turns on this. The plaintiff would issue invoices to Icon Tiling, not weekly but at variable times, sometimes mid-way through the job and always at the end. The plaintiff deducted income tax from his earnings and was not paid holiday pay, long service leave or superannuation by Icon. He was not required to wear a uniform, and provided his own tools and equipment (tile cutter, mixer, trowels, electrical leads, lights, level). At any time, or at the conclusion of a job, the plaintiff was free to accept other jobs with other tiling companies and did so.
[4]DCB, 151
8 In early 2014, the plaintiff worked for the defendant on 6 days in January; 14 days in February, and 16 days in March. Throughout 2014, the plaintiff also did work for and received payments from other tiling companies. There was some dispute as to whether invoices issued by the plaintiff on 1 December 2014 was in respect of work performed for Zaman Ahmadi; the plaintiff said this amount did not relate to work he performed for Mr Ahmadi but reflected a debt he owed to Mr Ahmadi. Again, whilst this may appear to be an unusual arrangement, nothing turns on it.[5] Counsel for the defendant pointed out that the figures in the plaintiff’s invoice book do not correlate with payments made into his bank account. Given the plaintiff’s limited English and the fact that the entries made by him into his invoice book were made at the direction of others, little turns on this point.
[5]Transcript, 50 - 57
9 In around September 2014, the plaintiff was again engaged by the defendant to work on a very large job involving tiling works in a residential apartment tower which was being constructed at Docklands (the Docklands job). The Docklands job would last for several months. Wetspot Waterfproofing and Tiling (Wetspot) was the “head tiling company” which was engaged to provide tiling work for the Docklands job. Wetspot then sub-contracted the work to various small tiling companies, of which Icon Tiling was one. Icon Tiling had about 20 tilers working on the site. Wetspot provided direction and supervision to all companies and persons performing tiling work on the site, through its supervisors “Mark” and “John”. The plaintiff gave evidence that “Najib” and “Hanif” were supervisors on the site. Mr Sahill did not state that Najib was a supervisor, but stated that “Najib” spoke English and could translate instructions to the other Afghan tilers and workers.
10 Mr Sahill deposed that the plaintiff worked for Icon Tiling from September 2014 as follows: 7 days in September, 24 days in October, 18 days in November and 14 days in December 2014; 10.5 days in January, and 6 days in February 2015. Mr Sahill stated that he never guaranteed the plaintiff ongoing work at the end of a job;[6] that the plaintiff could refuse to take the work offered, and was free to work elsewhere. He stated that once a job was finished, if there was no other job for the plaintiff to work on, he was free to work elsewhere, and did so.
[6]Defendant’s Further Amended Court Book dated 12 December 2018 (DCB), 151
11 The plaintiff’s evidence was to the effect that during the relevant period he worked only for the defendant, that he was told by the defendant that if he kept working the way he was, “they would give me work always” after the Docklands project had finished.[7] The plaintiff said he believed that the defendant was his employer while he worked at Docklands.
[7]Transcript, 59
12 On the authorities,[8] in determining whether a plaintiff is a worker, the totality of the relationship between the parties must be considered. In Elazac, the Court of Appeal listed factors relevant to determining the nature of the relationship, [9] and I consider each of those factors below.
(a) The degree of control which the defendant could exercise over the plaintiff;
[8]Elazac Pty Ltd v Shirreff [2011] VSCA 405 (‘Elezac’)
[9]Ibid.
13 The defendant agreed that it exercised a degree of control over the workers it engaged to work at the Docklands site but that Wetspot, as the “head tiling company”, exercised an overarching element of control. It says that the plaintiff was free to refuse to work with the defendant at any time, and for jobs he accepted with the defendant, he could work as much or as little as he wanted.
14 The plaintiff’s evidence was to the effect that Najib, an employee of Mr Sahill, gave instructions to workers, including the plaintiff, each day telling him and them what to do, where to go, and what work to do.[10] The plaintiff stated in his affidavit that during the period between September 2014 and February 2015, he was told by Mr Zia to listen to Najib and take instructions from him and to let Najib know if he was late.[11] He stated that Najib would tell him each day about which area to work in, that Najib would supervise his work and if he was not happy with something the plaintiff did, Najib would ask him to do it again. It was Najib who kept a record of the days that he worked. The plaintiff stated that he was told what he would be paid and to start work at 7 am each day and finish at 4 pm. He stated that during this period he did not work for anyone else.
[10]Transcript, 60 and 99
[11]Plaintiff’s Further Amended Court Book dated 11 December 2018 (PCB), 104
15 I am satisfied that this factor militates towards a finding that the plaintiff was an employee of the defendant.
(b) Whether what is being supplied is the work and skill of a person (contract of service) or the supply of equipment or its performance (contract for services);
16 The defendant submitted that the plaintiff was providing his personal work and skill, using his own tools and equipment including clothing, safety boots and eye protection, whereas Icon Tiling was only providing materials such as tiles, glue, and grout. The plaintiff stated in his affidavit that he took his tile cutter, trowel, and level to work, but that all the materials he used were provided by Muhammed Zia on behalf of the defendant.[12] He was provided with ear protection and a safety hat by either Wetspot or the union.[13] Najib told him to wear a high visibility shirt and he did so. I accept the plaintiff’s evidence in this regard.
[12]PCB, 104
[13]PCB, 105
17 I consider on the evidence that the plaintiff was providing his labour (work and skill) to the defendant on the Docklands job. The fact that he brought along his basic tools does not in my view detract from this conclusion.
18 I am satisfied that this factor militates towards a finding that the plaintiff was an employee of the defendant.
(c) Whether or not the person engaged can set his own hours of work;
19 It was common ground that the plaintiff, like every other worker on the Docklands site, was only able to work on the Docklands job when the building site was open. However, the plaintiff’s unchallenged evidence is that he was instructed to start work each day at 7 am and finish at 4 pm. He said that he was paid the daily rate regardless of the amount of work that he did. I consider that he did not set his own hours, and therefore am satisfied that this factor militates towards a finding that the plaintiff was an employee of the defendant.
(d) The method of payment (and, in particular, whether payment is determined by hours of service or output or production);
20 The defendant relies on the fact that the plaintiff was not paid an hourly rate like most employees; that he had his own ABN number, and would render invoices charging $200 and then later $240 per day, at varying times during a job, not weekly.
21 The plaintiff’s unchallenged evidence was that he was paid a daily rate. The defendant agrees that this was so. In circumstances where he was performing tiling work, I do not consider that the fact that he was paid daily rather than on an hourly basis detracts from a finding that he was paid for the hours worked, and not for his output or production. For this reason, I consider that this factor militates in favour of a finding that the plaintiff was an employee of the defendant.
(e) Whether or not income tax is deducted and holiday pay or long service leave or superannuation paid;
22 The defendant relies on the fact that it did not deduct income tax, that there was no accrual or sick leave, holiday pay or long service leave, that there was no contemplation of overtime rates or penalty rates for work done on weekends, and that the defendant did not pay superannuation to the plaintiff, although the plaintiff was paid superannuation by Wetspot. The defendant submitted that this occurred because the Docklands site was unionized and all workers on site had to be paid superannuation.
23 I consider that the evidence in relation to this factor is equivocal and I am unable to find that this factor militates in favour of the plaintiff being considered an employee of the defendant.
(f) Whether or not the person engage employs employees and/or conducts his business in partnership;
24 It was common ground that the plaintiff worked alone, and only for himself. The defendant queried the plaintiff’s practice of issuing invoices in other people’s names, and submitted that his explanation that this was to repay personal debts was unsatisfactory. The defendant conceded that this factor was equivocal.
25 I accept the plaintiff’s evidence that he worked alone, and consider that this factor militates in favour of a finding that the plaintiff was an employee of the defendant.
(g) Whether or not there is the power to delegate (send someone else to do the work);
26 The defendant conceded that the plaintiff could not delegate the work to someone else. I consider that this factor militates in favour of a finding that the plaintiff was an employee of the defendant.
(h) whether or not the person engaged considered the relationship as one of independent contractor;
27 I have noted Mr Sahill’s evidence above. The plaintiff said that between September 2014 and February 2015, when he suffered his back injury, he was working exclusively for the defendant, for the life of the Docklands project, and was told by Mr Sahill’s supervisor on site that if he continued to work the way he was the defendant would continue to give him work, “always”.[14] The plaintiff’s evidence was that he had never worked as a subcontractor because he could never get such work because he does not know English.[15] He said that he considered his relationship with the defendant was one of worker and employer.[16]
[14]Transcript, 59
[15]Transcript, 34
[16]Transcript, 30
28 I consider that this factor militates in favour of a finding that the plaintiff was an employee of the defendant.
Conclusion
29 Considering the totality of the relationship by reference to the above factors, I consider that at common law the plaintiff was an employee of the defendant during the relevant period and at the time he sustained the injury to the lumbar spine on 3 February 2015. I accept his evidence that his general practice was to be taken to work on a project by a fellow Afghan for the life of a project, and then, when that work ran out, to seek further work through his Afghan contacts. This is not inconsistent with a finding that the plaintiff was an employee of the defendant. I am satisfied that the plaintiff accepted work on the Docklands site for the life of the project, and beyond if the defendant had more work. Once engaged with the defendant, he said he worked only for the defendant. He made himself exclusively available to the defendant, and did not take on other work for any other persons or companies during the period he was working on the Docklands site, even though that work did not, on the evidence, occupy him 40 hours per week between September 2014 and February 2015.
Was the plaintiff a deemed employee?
30 In the light of my findings that the plaintiff was, at common law, an employee of the defendant at the time he sustained his back injury on 3 February 2015, it is unnecessary for me to determine this question.
Serious Injury Application
31 The plaintiff swore two affidavits in support of his application, [17] and, through an interpreter, adopted their contents at the hearing. His evidence as to the pain and suffering consequences of his lumbar spine impairment was not challenged. After suffering sharp pain in the back on 3 February 2015, he tried to work for a further two days, and was then unable to continue. He told this to his employer. He saw his general practitioner, Dr Aram Sehat, on 12 February 2015, who arranged for an x-ray, advised him not to work anymore, and referred him for physiotherapy and hydrotherapy. He started taking Lyrica. He also saw another general practitioner, Dr Arian D’Argent in early 2015. Dr Sehat referred him to a surgeon, but he was managed conservatively. In July 2016, he saw a surgeon, Professor Bittar, who arranged some scans and sent him to Dr Gassin, pain specialist, in early 2017. Dr Gassin performed a lower back injection, and recommended a pain management program, as well as psychological treatment and physiotherapy. The plaintiff could not undertake any of these treatment modalities without an interpreter, and the language barrier prevented him from pursuing them.
[17]PCB, 16-28
32 He tried returning to do some tiling for a friend in late 2016, but could not manage by the second day, and had to stop.
33 As at 25 October 2018, the plaintiff has been living in a share house in Dandenong with other Afghani men.[18] He has been attending English classes four days per week, five hours per day, but said that his English has only improved a little and that he feels he may be unable to continue because of his pain and restrictions. He sees Dr Sehat (who speaks Farsi) and Dr Gassin regularly. He swims most days. He was unable to undertake a pain management program because he could not get funding for an interpreter for such a lengthy period (10-12 days). He takes Lyrica, Tramadol and Neuromol daily for his back pain, as well as anti-depressant medication.
[18]PCB, 24
34 He continues to suffer daily back pain, which extends to his buttocks and down his right leg. He also suffers from numbness in both legs, sometimes down to the big toes. His back pain interferes with his sleep. He swims each day, and tries to walk, a maximum of 30 minutes. He can only drive for about 35 minutes without a break, and cannot sit or stand for long periods. His pain interferes with his concentration in English classes and prevents him from bending to pray five times per day as he used to do. He has only seen his family in Afghanistan twice since 2012. He has a cousin in Melbourne but otherwise no support. He used to play volleyball in the park but can no longer do this. His housemates now do the cooking and cleaning for him. He can only cook very simple foods because of his standing tolerances. He has been asked to move regularly by housemates who tire of his inability to share chores.
35 In cross-examination, the plaintiff agreed that he was able to water the garden sometimes and do a bit of cooking and washing up sometimes, can use public transport and drive about 35 minutes without a break. He said that when he went to Pakistan in 2017 to see his family he went with a friend who carried his luggage, and also took medication. He said that he cannot concentrate on his English classes because of his back pain and often does not attend, or leaves. He does not feel that he can continue with the classes.
36 In re-examination, the plaintiff said that he is unable to hold down any part-time job on a reliable basis because he cannot even reliably do light duties such as cooking and cleaning at home. He said the pain gets critical at times.
Radiology
37 Lumbar spine X-ray on 13 February 2015 was reported as revealing “mild anterior endplate spondylotic lipping at L3/4 and L4/5 levels.[19]
[19]PCB, 83
38 CT scan of the lumbosacral spine on 26 February 2015 was reported as revealing, among other things, at L4/5, “a mild central canal stenosis and compression of the right traversing right L5 nerve root”. [20]
[20]PCB, 83
39 MRI scan of the lumbar spine on 19 July 2016 was reported with the following conclusion:[21]
[21]PCB, 85
Moderate broadbased disc bulge L4-5, contacting the proximal traversing bilateral L5 nerve roots. Mild broadbased disc bulg L5-S1, contacting the proximal traversing left S1 nerve root. There is no significant worsening of the disc bulges with weightbearing, and no anterior or posterior shift with weightbearing.
Reports of treating doctors
40 Dr Sehat indicated in late 2015 that the plaintiff was unable to return to his normal duties.[22] On 6 August 2018, Dr Sehat reported that he did not feel competent to comment on the plaintiff’s back pain or his capacity to return to work.[23]
[22]PCB, 38
[23]PCB, 39
41 Dr Robert Gassin, pain specialist, reported on 26 July 2016,[24] after seeing the MRI scan, that Mr Sultani’s pain was most likely of discogenic origin arising almost certainly from the L4/L5 nerve and that he would need to be off work for a number of months before being able to resume his pre-injury duties as a tiler. He repeated this opinion in his report of 30 November 2016,[25] and suggested a right L5 transforaminal epidural injection in an attempt to relieve the plaintiff’s right posterior thigh pain. However, in a subsequent report dated 26 May 2017 Dr Gassin noted that this injection did not provide any relief to Mr Sultani.[26] Dr Gassin stated that the plaintiff’s condition had stabilised and that his low back and leg pain and associated moderate disability would persist for the foreseeable future.
[24]PCB, 43
[25]PCB, 45-46
[26]PCB, 47
42 In his report dated 15 October 2018,[27] Dr Gassin opined that the plaintiff’s low back pain and bilateral leg pain is discogenic pain resulting from an injury to one of his low lumbar discs, most likely the L4/5 disc, from lifting two heavy buckets at work in February 2015. He opined that the plaintiff will continue to suffer for the foreseeable future from ongoing moderate pain and associated disability related to his low back injury.
[27]PCB, 49-53
43 Professor Richard Bittar, neurosurgeon, reported on 30 November 2016[28] that the MRI scan demonstrated a disc bulge at L4/5 and L5/S1 contacting the L5 nerve roots at L4/5 and the left S1 nerve root at L5/S1. There was no neural compression. He recommended conservative management including physiotherapy. On 11 October 2018,[29] Professor Bitter opined that the plaintiff suffered a work related aggravation of lumbar spondylosis resulting in a total and permanent incapacity for pre-injury work and alternative suitable employment. He noted that the plaintiff is likely to suffer from significant pain and disability into the foreseeable future.
Plaintiff’s medico-legal medical reports
[28]PCB, 56
[29]PCB, 58
44 Mr Siva Chandrasekaran, orthopaedic surgeon, reported on 30 July 2018[30] that Mr Sultani has a L4-L5, moderate broad based disc bulge contacting the transversing bilateral L5 nerve root causing L5 radiculopathy as well as a broad-based disc bulge L5-S1 contacting the proximal transversing L5-S1 nerve root. He considered that the disc bulges are causing discogenic back pain. He concluded that the plaintiff does not have the capacity to perform his previous work duties and may be more suited to a sedentary type of activity with frequent breaks with sitting if a suitable job was available He noted, however, that due to the plaintiff’s language difficulties and limited work experience, he may find it difficult to obtain such a job.
[30]PCB, 68
45 Dr Joseph Slesenger, specialist occupational physician, reported on 28 September 2018[31] that the plaintiff has a mechanical injury to the lumbar spine caused by degenerative disease of the lumbar spine and chronic lower back pain with radiating features, but no evidence of radiculopathy. [32] He considered that given his condition the plaintiff could not return to pre-injury duties nor to any suitable alternative duties on a consistent and reliable basis.
Defendant’s medico-legal reports
[31]PCB, 71
[32]PCB, 79 - 80
46 Mr Ian Jones, orthopaedic surgeon, reported on 28 October 2015[33] that the plaintiff suffered an L4/5 disc disruption but found “no convincing signs of right sided or left sided sciatica.”[34] He noted that as a consequence of the lumbar spine injury, the plaintiff would remain unable to return to his work as a tiler and would be limited in terms of his ability to bend, lift and carry.
[33]DCB, 8
[34]DCB, 13
47 In his second report 28 March 2018,[35] Mr Jones noted the conservative treatment the plaintiff had been undertaking, including swimming exercises, physiotherapy and continued ingestion of analgesic and anti-inflammatory medication. He affirmed his opinion that due to his lumbar spine impairment the plaintiff was permanently incapable of returning to his pre-injury duties and that his only option was to retrain for a role which did not involve physical work.
[35]DCB, 14
48 In his third report dated 3 September 2018,[36] Mr Jones considered that the plaintiff presented with a history consistent with an L4-5 disc disruption and right sided sciatica. Mr Jones concluded that while the plaintiff could not return to any physical employment, and that his limited English would make finding suitable employment in a non-physical role difficult, the plaintiff would be capable of returning to full-time work in a limited capacity of performing appropriate sedentary work.
[36]DCB, 19
49 Dr Dominic Yong, occupational physician, reported on 15 February 2018[37] that the plaintiff was suffering from a discal injury to his lower back with lumbar dysfunction and radicular symptoms. [38] Dr Yong suggested the plaintiff had a functional capacity for work with the following restrictions: avoid repeated bending and twisting of the back; avoid repeated firm pushing and pulling tasks; avoid lifting more than 4kg on a repeated basis; vary posture regularly between sitting, standing and walking; and reduction in working hours to 3-hour shifts for 3 days per week. He suggested the plaintiff would require a vocational assessment to identify any appropriate duties in line with the restrictions he outlined.
Findings and reasons
[37]DCB, 44
[38]DCB, 50
50 The plaintiff was an extremely straightforward witness, who answered questions directly through the interpreter. I am satisfied that based on the evidence tendered and given in court that at work on 3 February 2015 the plaintiff suffered an injury to the lumbar spine which has resulted in a permanent impairment of the function of the lumbar spine. I accept the plaintiff’s unchallenged evidence as to the pain and restrictions flowing from that impairment, which is supported by the treating and examining doctors. The weight of expert medical opinion is to the effect that due to the work-related permanent impairment of the function of his lumbar spine the plaintiff will permanently suffer pain and disability requiring medication, and is permanently incapacitated for his pre-injury work and for any physical work.
51 On the question of capacity for suitable employment, I prefer the evidence of Dr Slesenger and Dr Yong and find that given his age, level of education, work experience, extremely poor spoken English and illiteracy in English, pain and restrictions, that the plaintiff is permanently incapacitated for all employment. I am therefore satisfied that, in terms of loss of earning capacity, the plaintiff will permanently suffer at least a 40% loss of earning capacity, thereby satisfying the narrative test for serious injury.
52 I am also satisfied on the evidence that the pain and suffering consequences of the plaintiff’s impairment of the function of the lumbar spine are more than considerable when compared with other cases in the range of permanent impairments of the lumbar spine.
Conclusion
53 The plaintiff is a worker at common law and is granted leave to issue proceedings for the recovery of damages for pain and suffering and loss of earnings consequential upon the work-related injury he suffered to the lumbar spine on 3 February 2015.
54 I reserve the question of costs.
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