Tekin v Victorian WorkCover Authority
[2017] VCC 1305
•15 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00391
| RESUL TEKIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 August 2017 and 1 September 2017 | |
DATE OF JUDGMENT: | 15 September 2017 | |
CASE MAY BE CITED AS: | Tekin v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1305 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lower back – whether plaintiff satisfies the test for economic loss – pain and suffering and loss of earning capacity damages
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering and pecuniary loss
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Gorton QC with Ms B L Hutchins | Zaparas Lawyers |
| For the Defendant | Mr G K Coldwell | Hall & Wilcox Lawyers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by him in the course of his employment with General Motors (“the company”) between 2004 and 8 December 2014.[1]
[1]The plaintiff commenced working in 1991 in the foundry in Port Melbourne, Plaintiff’s Court Book (“PCB”) 10-11
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the spine, essentially the lower back.
6 The plaintiff relied upon three affidavits: two affirmed by the plaintiff on 17 August 2016 and 20 June 2017, and an affidavit of his son, Mr Chatay Tekin, sworn on 19 June 2017.
7 The plaintiff was cross-examined. I have not summarised the evidence of the plaintiff and his son. I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all of the tendered material.
Relevant legal principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]Section 134AB(19)(a) of the Act
9 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the company.[3]
(b)“the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future.[4]
(c)“the consequences” to the plaintiff of his impairments to the lower back in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[5]
[3]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[4]Barwon Spinners (supra) at paragraph [33]
[5]Section 134AB(38)(b) and (c) of the Act
10 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[6]
(a)that at the date of the hearing, he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[7]
(b)that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more,[8] and
(c)that even with rehabilitation and retraining he will still sustain a loss of 40 per cent or more.[9]
[6]Section 134AB(19)(b) and 38E of the Act
[7]Section134AB(38)(e)(i) of the Act
[8]Section 134AB(38)(e)(ii) of the Act
[9]Section 134AB(38)(a) of the Act
11 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[10]
[10]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
12 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
13 In determining the application, the Court:
(a)must make the assessment of “serious injury” at the time the application is heard.[11]
(b)notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgement.[12]
[11]Section 134AB(38)(j) of the Act
[12]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at paragraph [628]; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
14 Counsel for the defendant informed the Court that there were several issues for determination.
· First, that there is no causal connection between the injury the plaintiff alleges and his employment with the company. In particular, that the plaintiff did not make a WorkCover claim until June 2015, which is after he had ceased working for the company.
· Second, the consequences that the plaintiff relies upon do not satisfy the test for seriousness.
· Third, the plaintiff’s credit is in issue.
The credit of the Plaintiff
15 The plaintiff gave his evidence through an interpreter. Counsel for the plaintiff indicated his experience was that if the plaintiff is without the assistance of an interpreter, it is difficult to understand him and the procedure is time consuming. The plaintiff’s evidence was that he can speak and understand some English but does not feel confident with his English skills. The plaintiff attended medical examinations with an interpreter. Dr Davison said his English skills were quite adequate, yet other medical witnesses described his English skills as limited. I conclude that it was appropriate that the plaintiff gave his evidence in Court with the assistance of an interpreter.
16 Counsel for the defendant submitted that the plaintiff’s credit was in issue because there was a false impression created in the plaintiff’s affidavit material as to how heavy the work was that he performed for the employer, particularly given that the defendant provided a forklift to assist with heavy work. I accept counsel for the plaintiff’s submission that there was no suggestion in the affidavit material that the plaintiff was moving pallets with barrels on them without a forklift. The plaintiff specifically identified the heavy task of manoeuvring the barrel from the pallet to the trolley, which was the heavy nature of the work, which the plaintiff relied upon.
17 Further, counsel for the defendant submitted that the plaintiff’s credit was in issue because he went to Turkey after he ceased work with the company, which undermined the fact that he had a painful back at the time of his employment. I accept that the plaintiff received a voluntary redundancy payment following twenty-four years of work with the company. He had an ageing mother in Turkey. The fact he went to visit his mother in Turkey after the redundancy is not inconsistent with somebody having a sore back and not being able to work as a taxi driver. The plaintiff told the Court that he had the opportunity to get up and walk in the aisle of the plane.[13] Further, the plaintiff’s evidence was that, while in Turkey, he rested his back. I accept that people with sore backs travel on aeroplanes and do their best to cope.
[13]Transcript (“T”) 53
18 Counsel for the defendant relied upon what he described as the unusual admission in cross-examination by the plaintiff that he attended the company’s doctor in September 2014. The plaintiff was being cross-examined about a letter written by his solicitor to the company’s insurer dated 27 June 2015. The solicitor’s letter referred to the plaintiff attending the company’s doctor on 15 and 16 December 2014. The plaintiff’s evidence was that he did not attend on 15 or 16 December 2014, but said he thought he attended on 14 or 15 September 2014. The records of the company’s doctor suggested the plaintiff attended on 15 September 2014, a medical certificate was provided for 14 and 15 September 2014. Ultimately, the plaintiff said he could not remember, which is understandable, given the length of time since these events occurred. In my view, this does not damage the plaintiff’s credit.
19 The principle challenge to the plaintiff’s credit appeared to be that the plaintiff is untruthful because he did not complain about his low-back condition to his doctors. This was not in contention between the parties. The plaintiff’s own evidence was that he was frightened that he would lose his job if he told the company or the company doctors that he was suffering from back pain.[14] Further, when asked why he did not report the back injury to his own general practitioner, Dr Bond, the plaintiff said he just did not want to get it onto a certificate.[15] Further, he said, “If I told them I was struggling I would’ve lost my job”. The plaintiff was described by fellow employees as a private person. His son, Chatay, said he was not surprised that his father did not complain much to doctors about the pain in his back while working for the company. Further, he said his father does not like going to doctors very much and he does not usually complain about pain. He is the type of person that would just get on with things and not make a fuss.[16] In my view, the plaintiff’s explanation for not reporting his low back pain to the company and his reluctance to report pain to his general practitioner is inherently plausible and acceptable.
[14]T34
[15]T47
[16]PCB 23
20 In cross-examination, the plaintiff listened to questions and answered questions directly. He gave his evidence without embellishment and was straightforward with this presentation. He made appropriate concessions. He agreed that the company required him to report injuries and that he did not report his back condition to the company. Mr Sharp, surgeon, described the plaintiff as “a most pleasant gentleman”. He noted the plaintiff appeared to have some abnormal pain response as he clutched his back when doing lumbar movements. Supervisors who worked with the plaintiff, Mr Mark Nicholls and Mr Scott Towers, described the plaintiff as a very private person. Dr Bond, general practitioner, said his continued work for some nine years with ongoing pain with minimal time off work was most commendable of the plaintiff.[17] I note that the plaintiff worked with the company for more than twenty years. The plaintiff conveyed his keenness to obtain some form of employment to the Court.
[17]PCB 39
21 Further, the plaintiff was under video surveillance. The defendant disclosed in its Court Book that video surveillance of the plaintiff was brought into existence for the dominant purpose of use in the litigation and in respect to which privilege is not waived. Both Dr Davison and Mr Sharp were provided with the surveillance of the plaintiff. Mr Sharp read the report and viewed the film taken on 16 January 2017. The film did not make him alter his opinion. Dr Davison was provided with a video DVD which was damaged and unplayable. He read the surveillance report which accompanied the DVD. He reviewed the surveillance report and noted that the video footage reportedly did not observe the worker to undertake any physical activities that was of significant variance to his clinical examination. No video surveillance was shown to the Court. I can infer that the surveillance would not have assisted the defendant.
22 Counsel for the plaintiff submitted that the statutory declarations made by Mr Mark Nicholls and Mr Scott Towers, both employees of the company, are not admissible as they are not made on oath. Further, when examined carefully, the statements are reasonably identical and appear to be statements that have been presented for signing, not in the individuals own words. I accept the statements are not on oath and that evidence in these applications should be on oath. Accordingly, I rely on the plaintiff’s evidence as to the nature of his work and the fact that he did not report his lower back pain to the company, Mr Nicholls or Mr Towers. However, I note that Mr Towers commented upon the plaintiff’s good work ethic, which I take into account in my assessment.
23 There was no suggestion on the evidence before me that the plaintiff was not a good and hardworking employee. In fact, Mr Towers described the plaintiff as an excellent worker, conscientious and always on time. Overall, the plaintiff impressed me as a believable and credible witness.
Causation
24 The plaintiff’s claim is that he suffered injury over the course of his employment with the company.
25 The defendant’s position was that there has never been an accepted WorkCover claim in respect to this plaintiff. Further, the first knowledge the company had of the plaintiff injuring his back at work was seven months after the plaintiff ceased full time work with the company. Counsel for the defendant forcefully argued that there was no “casual connection”.[18]
[18]T73
26 I must consider the evidence as a whole.
27 The plaintiff described the work he performed in his affidavit and expanded on that in cross-examination. He was a lubrication attendant and was required to provide oils and coolants to machines. A forklift would bring the drums of oil to his workstation on pallets. The drums were about 1.4 metres in height, about 55 centimetres in diameter and weighed just over 200 kilograms. Counsel for the plaintiff handed up a photograph of a trolley with a drum and drums on the pallets at the plaintiff’s prior place of work.[19] The plaintiff had to manually move the drums from the pallets to the tray of a trolley, which was about the same height as the pallet. He moved about five to eight of the full drums on a Monday and Wednesday. On a Tuesday and Thursday, when he was providing oil to the crank line, he moved one to two of the drums as the tanks were much smaller on this line. He performed other duties on a Friday that required him to lift a 20-litre tin bucket, which was about three quarters full, and pour it into a washing machine at a height of approximately 6 metres from the floor. Providing oil to the machines usually took most of the day.
[19]PCB 75
28 He specifically denied the proposition that he was not doing heavy manual work, which was put to him based on the statement from Mr Towers. The plaintiff described the work he performed. His duties were done from 3.00pm to 9.00pm five days a week and the plaintiff reported he worked alone. I accept that the work the plaintiff was engaged in was heavy manual work.
29 The plaintiff’s evidence was that he developed back and leg pain while still at work but continued to work until the end of 2014, when he took a redundancy. The plaintiff deposed that he was taking over-the-counter medication to help manage the pain. He loved his job and worked in excess of twenty years with the company and he did not want to stop working for the company. He nominated for and accepted a voluntary redundancy because he was struggling at work due to lower back pain and did not think he could continue doing such a heavy job for much longer.
30 The plaintiff’s evidence was that he first experienced lower back pain in 2006 but that he had no time off work and the symptoms resolved.[20] He then experienced back pain again in about 2010. It has gradually worsened and become more frequent and severe over the years. He thought the back pain was part of his job. He assumed that it would go away when he eventually stopped doing heavy work. In re-examination, the plaintiff said his back would be worse by the end of the day and worse at the end of the week. The plaintiff’s evidence was that he laid down on a folded piece of cardboard to rest his back in his work break. Towards the end of 2014, he said the pain was particularly bad. He did not think he could do such a heavy job for much longer.
[20]T24
31 The plaintiff’s evidence was supported by the evidence of his son, Chatay. Chatay, who said he observed his father suffering from back pain at home. He said, in the couple of years prior to his father ceasing work with the company, he noticed his father was having increased difficulty in his daily life due to back pain. He said his father shared housework duties with his mother, maintained the garden and performed handyman work around the house. In the couple of years prior to the plaintiff ceasing work, he was doing less of these activities. By the time the plaintiff ceased work, he was no longer performing these duties. His father said he no longer performed these jobs due to his back pain. Chatay said he observed that his father had difficulty getting up from the couch and observed him stretching.
32 The plaintiff’s evidence was that, after he ceased employment with the company, he rested for several months before visiting his elderly mother in Turkey. He rested for much of the time he was in Turkey; however, the pain did not improve. He then realised he had something seriously wrong with his back. Upon his return from Turkey, the plaintiff attended Dr Bond on 1 June 2015.
33 The plaintiff’s evidence was that once he ceased employment and was able to rest his back, he thought his back would improve. He rested his back and he was no longer doing the heavy work. The plaintiff’s evidence is that he planned to drive a taxi after he ceased work with the company. He told the Court that he cannot do this job because of the back pain he experiences when driving a car for more than 30 minutes.
34 I accept the plaintiff’s evidence that the work he was performing was heavy manual work and that he developed back and leg problems while performing this work in 2010. Furthermore, I accept the plaintiff’s evidence that he thought his back would improve on the cessation of work with the company. That did not occur and, as a result, he sought medical attention.
35 Dr Bond, general practitioner, diagnosed low-back pain, lumbosacral spine right-sided sciatica. He said the plaintiff’s back pain was directly related to his work as an oiler. He took into account the plaintiff’s statements that his recurrent back pain was related to his job and said from the plaintiff’s symptom description, it would appear that his pain was directly related to his work.
36 Mr Mohammed Awad, neurosurgeon and spinal surgeon, diagnosed aggravated lumbar spondylosis with likely nerve root entrapment. It was his opinion, given the heavy workload over many years, the plaintiff’s condition is likely work-related, and he believed the plaintiff’s employment, overall, has been the most significant contributing factor to his current condition.[21] He said the plaintiff’s prognosis is poor and is likely to suffer significant pain and disability into the foreseeable future.
[21]PCB 47
37 Dr Joseph Slesenger, specialist occupational physician, was satisfied that the plaintiff’s occupational exposures are a plausible cause of his impairment. He noted the manual handling and postural requirements, and the repetitive nature of these tasks that the plaintiff was required to perform. He diagnosed mechanical injury to the lumbar spine, aggravation of degenerative disease of the lumbar spine, chronic pain disorder with radicular symptoms but no radiculopathy on examination. He said given the plaintiff’s level of symptoms, he was cautious with regard to his prognosis.
38 As opposed to these views, the defendant’s medical evidence was that the injury was not work related.
39 Mr Philip Sharp, surgeon, examined the plaintiff on two occasions. He concluded that the plaintiff was suffering multi-level constitutional degenerative changes involving the lumbosacral spine. He did not believe there had been any identifiable injury arising out of, or in the course of, his employment. He thought the injury was due to constitutional degenerative changes of his lumbosacral spine. I note that Mr Sharp did not obtain a history of the plaintiff nor did he refer to the type of work he was performing with the company.
40 Dr Gary Davison, occupational physician, diagnosed chronic lower back pain due to multi-level lumbar spondylosis. He said the history did not support the contention that the plaintiff suffered a particular injury arising out of, or in the course of, his employment.[22] He obtained a more detailed history of the nature of the plaintiff’s employment than Mr Sharp. However, Dr Davidson relied upon the statement of Mr Nicholls, which indicated that “the claimant would not have had to lift anything heavy as there was equipment there for him to use”. Dr Davison said, in the absence of a specific incident, and given the tasks and activities performed by the plaintiff, he concluded that he did not sustain an injury arising out of, or in the course of, his employment.[23] Dr Davison did not obtain a history of the plaintiff having to manually move drums weighing in excess of 200 kilograms from the pallets to the tray of the trolley.
[22]Defendant’s Court Book (“DCB”) 23
[23]DCB 23
41 It was accepted that the plaintiff did not report his injury to the company until June 2015, which was after he returned from his trip to Turkey. Based on the medical evidence of Dr Bond and Mr Awad, both of whom had examined the plaintiff on at least two occasions, and Dr Slesenger, and given the evidence of the plaintiff, which was supported by his son, and the plaintiff’s presentation in Court, I accept that the injury the plaintiff suffered was work related.
Loss of earning capacity
42 In respect of loss of earning capacity, it is necessary for me to consider the plaintiff at the present time. I will be assisted by the most recent medical evidence tendered.
43 All of the more recent medical witnesses, including the defendant’s medical witnesses, expressed a view that the plaintiff could not return to pre-injury work because of the low back injury. Dr Slesenger, occupational physician, said, at the time the plaintiff retired, he did not believe that the plaintiff’s work activities were sustainable in the long run.
44 All doctors imposed restrictions on employment. In 2015, Dr Bond said the plaintiff was certified for sedentary office duties of no lifting more than 2 kilograms and no prolonged standing, walking or sitting greater than 30 minutes. In 2017, he said the plaintiff is fit for sedentary duties; however, given his age, fifty-five years, and his minimal skills, this area is probably academic.[24]
[24]PCB 40
45 In 2017, Mr Awad said the plaintiff was fit for extremely sedentary alternate duties with a maximum of two to three days per week, with a maximum of two to three hours per day, with restrictions of no pushing, pulling, bending and twisting, or any repetitive lumbar spine motion. The plaintiff would also need to alternate sitting and standing at 20-minute intervals. In reality, he said procuring any employment to cover all these areas is highly unlikely.[25]
[25]PCB 51
46 In 2017, Dr Slesenger, occupational physician, said the plaintiff had a capacity for work with the following restrictions:
·no push, pull, carry or lift over 5 kilograms
·no repetitive bending and twisting
·sit and stand as require; and
·four hours a day, four days a week.[26]
[26]PCB 59
47 However, Dr Slesenger noted the plaintiff’s age (fifty-five), his current residential location (Templestowe Lower) and his lack of computer skills, the limit of his qualifications and the focused nature of his occupational activity, and his communication/language barriers. He said there are likely to be significant hurdles for this plaintiff in obtaining employment in an open job market.[27]
[27]PCB 59-60
48 In 2017, Mr Sharp, surgeon, said the plaintiff was capable of undertaking suitable employment. He could work in alternative or modified employment with the following restrictions:
·he should avoid bending and stooping as much as possible
·he should not lift, push or pull more than 5 to 10 kilograms
·he should have the facility to sit or stand as desired; and
·his hours could be adjusted accordingly after monitoring by his nominated treating doctor.[28]
[28]DCB 16
49 Mr Sharp expected the restrictions to be permanent and he did not expect the plaintiff to ever return to full employment.[29]
[29]DCB 16
50 In 2017, Dr Davison said the plaintiff had a capacity for suitable employment of a relatively sedentary nature provided the duties were self-paced. Due to deconditioning, he suggested a graduated return-to-work plan would be required.[30] Dr Davidson did not impose restrictions as suggested by Dr Slesenger, Mr Sharp and Mr Awad.
[30]DCB 23-24
51 Taking into account the medical evidence, I accept the plaintiff cannot return to pre-injury employment.
52 As to suitable employment, I tend to favour the evidence of the occupational physicians as they are the experts or specialists in occupational health and safety. However, their individual views are quite different. Dr Slesenger imposed restrictions, thought the plaintiff could return to work to 16 hours per week and said they were permanent. Dr Davison said the plaintiff’s prognosis for recovery was poor. He suggested a capacity for suitable employment of a relatively sedentary nature provided the duties were self-paced, and a graduated return to work was required. Mr Sharp and Mr Awad endorsed the restrictions imposed by Dr Slesenger. Mr Sharp did not think the plaintiff would be able to return to full employment. Mr Awad said he would be fit for extremely sedentary alternate duties with a maximum of two to three days per week for a maximum of two to three hours per day.
53 The plaintiff’s evidence as to work was that he had obtained and retained a taxi licence in the hope that he could obtain future employment in that area. However, he could only drive a car for about 30 minutes before he needs a break due to increasing back and right leg pain. He said that even if he were to accept short taxi trips of less than 30 minutes and take a break between trips, he does not think he could work for more than a couple of hours per day, as the sitting involved would cause too much low back and leg pain. He has never used the taxi licence but continues to renew the licence as it is cheaper, that is, $27.00 per annum, and easier than applying for a new one and undertaking a course at the cost of over $1,000.[31]
[31]T50
54 Overall, I favour the evidence of Dr Slesenger, which was endorsed by Mr Sharp and Mr Awad, as I consider his evidence is more realistic as to the plaintiff’s capacity for work. I further note that Dr Slesenger, Dr Bond and Mr Awad stated that, given the plaintiff’s age of fifty-five years, education and training skills, work experience and limited English as well as the nature and extent of his lumbar spine, it would be extremely unlikely that he would be able to procure suitable employment. If he did secure such employment, he would be unlikely to carry out the work in a reliable and consistent fashion.
55 Further, the plaintiff’s evidence was that he would really like to return to work. He enjoyed work and the social contact. He has only ever worked for the one employer since being in Australia. He said he can speak and understand some English but is not confident with his English skills. He struggles to read and write English and he does not know how to use a computer. Given the plaintiff’s age of fifty-five years, and the fact that there are restrictions imposed on the type of work the plaintiff can obtain, the need to alternate sitting and standing at 20-minute intervals, his communication and language barriers, his lack of computer skills, the fact that he has always been a manual worker, I consider he has no capacity to return to any employment for which he is suited.
56 Given the medical evidence, I am satisfied that the plaintiff’s impairment is permanent. I note that the impairment has remained since 2012. In view of the evidence as a whole, I accept the plaintiff has no capacity for the pre-injury or suitable employment. I find the plaintiff is effectively out of the workforce for any employment. Accordingly, it is not necessary to enter into an analysis of wage rates as I do not accept he has any residual capacity when the medical restrictions placed on him by witnesses are considered in the context of the real commercial world.
57 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages, that is, for both pain and suffering and loss of earning capacity.
58 I accept the plaintiff’s inability to return to work and to provide for his family represents a significant loss to the plaintiff, given his work history.
59 I am satisfied it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test. In reaching my finding, I have made a comparison with other cases in the range of possible impairment. No element of mental component is taken into account in this assessment. Indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
60 I am also required to consider issues of retraining and rehabilitation pursuant to s134AB(38)(g) of the Act.
61 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent of more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134(38)(g). Accordingly, I am satisfied the plaintiff will continue permanently to have a loss of earning capacity, which will be productive of a financial loss of 40 per cent or more.
62 In view of the matters I have described, the plaintiff has discharged the onus with respect to his physical condition regarding his loss of earning capacity.
63 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages and pain and suffering damages.
64 I will now hear the parties on costs.
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